Appeal No 527 of 1967
Appeal from the judgment and decree dated August 2nd3rd 1965 of the Mysore High Court in Regular First Appeal No 147 of 1958
M Natesan and K Jayaram for the appellant
section section Shukla for respondents Nos 1 to 4
The Judgment of the Court was delivered by Hedge J
This appeal by certificate arises from the deci sion of the Mysore High Court in RA No 147 of 1958 on its file
The plaintiff is the appellant
The main question that arises for decision in this appeal is as to the share to which the plaintiff is entitled in the properties held to be partible by the High Court
One other minor contention had also been urged which will be referred to and dealt With at the appropriate stage
The facts as found by the High Court and which are no more in dispute may now be stated
The appellant is the adopted son of one Ranga Rao alias Ramachandra Rao who died in 1912
He was adopted by the 202 said Ranga Rao s widow Seethabai on September 18 1955
The geneology of the family of Ranga Rao is as follows KRISHNA RAO DESHPANDE Died 1934 MARRIED RADHABAI Died 1935 Ranga Rao alias Hanumantha Rao Ramchandra Rao went out of the died 1912 family by adoption
Married Seethabai Defendant No 1 Govinda Adopted on 18 9 1955 Plaintiff Lakshmana Rao died 6 9 1952 Married Venkubai Ambabai lst wife 2nd wife died 1904 Napppa Nagamma Ansuyabai Nagesh Deft
7 Deft
2 Krishnaji Lakshamana Gundappa Deft3 Deft 4 Deft 5
Hanumantha Rao went out of the family having been adopted into some other family
There was a partition between Krishna  Rao and Lakshmana Rao the only two existing coparceners at that time in 1933
After partition Krishna Rao is said to have bequeathed his properties to some of his relations as per his will dated November 8 1934
Subsequently there was a further partition between Lakshmana Rao and defendant No 2 Nagappa on 203 February 14 1946
Lakshmana Rao died in 1952
Asmentioned earlier the plaintiff was adopted on September 18 1955 and the suit from which this appeal arises was instituted in1956 by the plaintiff appellant represented by his natural father ashis  next friend as he was a minor on the date of the suit
The trial court granted the plaintiff half share in the properties that were held to be that of the family
The High Court modified the decree of the trial court in certain respects
It is not necessary to refer to all the modifications made by the High Court
We shall refer only to those modifications which are challenged in this appeal
The High Court reduced the share awarded to the plaintiff from half to 13rd of the properties held by it to be partible
The correctness of this decision is questioned
The only other question is whether the High Court was justified in setting aside the trial court s decree awarding a sum of Rs 15001 to the plaintiff
Before proceeding to examine the appellant s contention that he is entitled to a half share in properties held to be partible it would be convenient to dispose of his contention relating to the money decree
The trial court came to the conclusion that out of the consideration of Rs 6500 received under the sale deed Exh 177 the second defendant had not accounted for Rs 3000 
Hence the plaintiff is entitled to a half share therein
The trial court as well as the High Court have found that the sale in question is valid as the same was effected to meet family necessities
The appellant did not seek an accounting from the 2nd defendant
No case was made out for requiring the 2nd defendant to account in respect of the amounts received by him as the karta of the family nor did the plaintiff aver in his plaint that there was any cash in the hands of the 2nd defendant
Hence the High Court was justified in reversing the decree of the trial court directing the defendant to pay to the plaintiff a sum of Rs 1500 
This leaves us with the question as to the share to which the plaintiff is entitled in the partible properties
Even before the plaintiff was adopted into the family there was a partition between Krishna Rao and Lakshmana Rao
The genuineness of that partition is no more in dispute
After the partition Krishna Rao became absolutely entitled to his share of the properties and hence he was entitled to deal with that property in the manner he thought best
As mentioned earlier he had bequeathed his properties to others
But it was urged on behalf of the appellant that his adoption dates back to the date of the death of his adoptive father Ranga Rao
By a fiction of law he must be deemed to have been in existence when Krishna Rao and Lakshmana Rao divided the properties amongst themselves
The said partition having been effected without his joinder the same has to be 204 ignored
Hence he is entitled to a half share in the properties
Alternatively it was contended that the plaintiff is entitled to get by succession half share in the properties that fell to the share of Krishna Rao
Before proceeding to examine the decided cases referred to at the time of the arguments let us proceed to examine the question on first principles
It is true that by a fiction of law well settled by decided cases that an adopted son is deemed to have been adopted on the date of the death of his adoptive father
He is the continuator of his adoptive father s line exactly as an aurasa son and an adoption so far as the continuity of the line is concerned has a retrospective effect
Whenever the adoption may be made there is no hiatus in the continuity of the line
From that it follows that the appellant must be deemed to have been adopted in 1912
Consequently he is deemed to have been a coparcener in his adoptive father s family when Krishna Rao and Lakshmana Rao partitioned the properties
The partition having been effected without his consent it is not binding on him
But from this it does not follow that Krishna Rao and Lakshmana Rao did not separate from the family at the time of the partition
It was open to Krishna Rao and Lakshmana Rao to separate themselves from the family
Once they did separate the appellant and his adoptive mother alone must be deemed to have continued as the members of the family
It is true that because the plaintiff s adoptive mother was alive the family cannot be said to have come to an end on the date of partition
But that does not mean that Krishna Rao and Lakshmana Rao did not separate from the family
the partition took place in 1933 the appellant even if he was a coparcener on that day could have only got 13rd share
We fail to see how
his position can be said to have improved merely because he was adopted subsequent to the date of partition
It is true that because he was not a party to the partition he is entitled to ask for reopening of the partition and have his share worked out without reference to that partition
But so far as the quantum of his share is concerned it must be determined after taking into consideration the fact that Krishna Rao and Lakshmana Rao separated from the family in 1933
The alternative contention of the appellant referred to earlier is also untenable firstly because Krishna Rao disposed of his share of the properties by means of a will and secondly even if he had not disposed of his share of the property the same would have devolved on Lakshmana Rao by succession and the property that had once vested by succession cannot be divested as in that property the plaintiffs adoptive father had no right of his own
The doctrine of relation back is only a legal fiction
There is no justification to logically extend that fiction 
In fact the plaintiff had nothing to do with his adoptive father s family when Krishna Rao died
On that day 205 his adoptive father was not alive
The devolution of Krishna Rao s property must be held to have taken place at the very moment Krishna Rao died
We know of no legal fiction under which it can be said to have been in a suspended animation till the plaintiff was adopted
This takes us to the decided cases
A long line of decisions has firmly laid down that an adoption dates back to the date of the death of the adoptive father
It is not necessary to refer to the catena of decisions on this point
Suffice it to refer to the decision of this Court in Shrinivas Krishnarao Kango vs Narayan Devji Kango and Ors1
But that fiction by itself does not help the plaintiff
That fiction merely enables him to establish that he must be deemed to have been in existence on the date of the death of his adoptive father
Division of status need not be effected by bilateral agreement
It can be effected by an unilateral declaration by a coparcener if the same is properly communicated
Therefore it was within the power of Krishna Rao and Lakshmana Rao to separate themselves from the family and in fact they did so in 1933
We see no basis for the contention of the appellant that he can ignore the events that took place in 1933
He can no doubt ignore the actual partition by metes and bounds effected by Krishna Rao and Lakshmana Rao and ask for a repartition of the properties but his adoption by itself does not and cannot re unite the divided family
It is one thing to say that an adopted son can ignore a partition effected prior to his adoption which affects his rights and it is a different thing to say that his adoption wipes out the division of status that had taken place in his family
Reliance was placed on the decision of the Bombay High Court in Ramchandra Shrinivas and Ors
vs Ramkrishna Krishnarao 2  in support of the proposition that the plaintiff can enter into the adoptive family on the basis that the family is a joint and undivided Hindu family and his rights in the property of the family must be decided on that basis
It is true that this decision lends some support to the argument that despite the partition effected in 1933 the plaintiff can work out his rights on the basis that the family remains joint
The conclusion of the High Court that the adopted son is entitled to enter his adoptive family on the basis that the family continues as a joint and undivided Hindu family and that his rights in the family property must be decided on that basis does not appear to be supported by any Hindu law text or by any decision of this Court or the Judicial Committee
The decision of the Judicial Committee in Anant Bhikappa Patil Minor vs Shankar Ramchandra Patil3 relied on by the High Court did not consider that question
It is true that some of the observations of Chief Justice Stone in Bajirao and Ors
vs Rant 1  2 AIR 1952 Bam463 3 70 IA 232
206 krishna1 does support the view taken by the Bombay High Court
But the question that arose for decision in that case was whether a person adopted after a partition in his adoptive father s family cannot divest the properties that had vested in the other coparceners
It may be noted that in the course of his judgment the learned Chief Justice observed  There can in our opinion be no question of a partition whereby the partitioning male members take away all the family property from a joint Hindu family unless the family can be wholly disrupted and finally brought to an end
We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it
The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member
The existing male members can separate off they can take away their share
They cannot prejudice by partitioning the rights of the after bom male member whether the birth is natural or legal
If in point of fact before his arrival the existing coparceners have partitioned the new arrival can obtain a re opening of the partition and thereby get his share
How that share is to be calculated in various circumstances need not be decided here
 These observations in our opinion lay down the ratio of the decision and that ratio does not support the conclusion reached by the Bombay High Court
The decision of the Full Bench of the Madras High Court in K R Sankaralingam Pillai and anr
vs Veluchami Pillai Minor 2  relied on by Bombay High Court merely laid down that an adopted son is entitled to reopen partition entered into in the family of his adoptive father before his adoption
That position is no more open to question and was not questioned in this appeal
We are only concerned with the quantum of share to which the plaintiff is entitled
Our attention has not been invited to any decision which supports the view taken by the Bombay High Court
We see no justification to accept that view
Further the interest of the society is not advanced by engrafting one more fiction to the already existing fiction that an adopted son is deemed to have been born on the date of death of his adoptive father
Acceptance of the new fiction canvassed on behalf of the plaintiff is bound to create various complications
Hindu widows in the past were proverbially long lived because of the child marriage system
Adoptions might take place and have taken place more than half a century after the death of the adoptive 1 ILR 2 ILR 207 father
Meanwhile the other coparceners might have dealt with the family property on the basis of the then existing rights
They might have alienated the property
We see no justification to create chaos by inventing a new fiction unknown to Hindu law texts nor authorised by stare decisis
This Court in Shrinivas Krishnarao Kango s case1 has laid down that the fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the estate of the adoptive father
But where the succession to the property of a person other than the adoptive father is involved the principle applicable is not the rule of relation back but the rule that inheritance once vested cannot be divested
It is true that the question that arose for decision in that case was whether an adoptive son can claim to succeed to a collateral s estate divesting the property that had already vested in someone else
But the rule laid down by this Court in that case is much wider than the limited question that arose for decision and the reasons given in support of that rule support our conclusion
The rights of an adopted son cannot be more than that of his adoptive father
If the plaintiff s adoptive father was alive in 1933 when the partition took place he could not have obtained anything more than 13rd share in the family properties
It passes our comprehension how the plaintiff could acquire a greater right than his adoptive father could have had if he had been alive on the date of partition and that he could have got if he had been adopted prior to that date
In our judgment the plaintiff s claim for a half share in the family properties is unsustainable
In the result ibis appeal fails and the same is dismissed with costs
SC Appeal dismissed
1 1955 1SCR 1


Summary:
The appellant was adopted in 1955 by R s widow after R s death in 1912
In 1933 there was a partition between K R s father and his third son L the only two coparceners existing at that time
Thereafter K bequeathed his properties by will to some of his relations
Later there was a further partition between L and his son
L died in 1952
A suit was filed in 1956 by the appellant claiming half of the family properties
The trial court granted the appellant half share in the family properties
The High Court reduced the share awarded to the appellant from 12 to 13 of the properties held by it to be partible
The High Court also set aside the trial court s decree awarding a sum of Rs 1500 to the appellant as his share of the consideration received under a sale deed In appeal to this Court the appellant contended that his adoption related back to the date of death of his adoptive father by a fiction of law he must be deemed to have been in existence when K and L divided the properties between them the partition having been effected without his joinder the same had to be ignored and therefore he was entitled to a half share in the properties
Alternatively it was urged that the appellant was entitled to get by succession half share of the properties that fell to the share of K Dismissing the appeal HELD
i The appellant must be deemed to have been adopted in 1912 when R died
Therefore he must be deemed to have been a coparcener in his adoptive father s family when K and L partitioned the properties in 1933
The partition having been effected without his consent it is not binding on him but from this it cannot be said that K and L did not separate from the family
So far as the quantum of his share is concerned it must be determined after taking into consideration the fact that K  L separated from the family in 1933
The appellant can ignore the actual partitionby meters and bounds effected by K and L and ask for a repartition of the properties but his adoption by itself cannot reunite the divided family
The rights of an adopted son cannot be more than that of his adoptive father
The fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adopted son relates to the estate of the adoptive father
If the appellant s adoptive father was alive in 1933 when the partition took place he could not have obtained anything more than 13rd share in the family properties
Therefore the appellant s claim for a half share in the family properties is unsustainable
T204 G 207 B 201 The alternative claim of the appellant is also not tenable because K disposed his share by a will and secondly even if he had not disposed of his share the same would have developed on L by succession and the property once vested cannot be divested as in that property the plaintiffs adoptive father had no right of his own
The doctrine of relation back is only a legal fiction
When K died plaintiff s adoption father was not alive
The revolution of K s property must be held to have taken place as soon as K died
The property could not have remained in a suspended animation till the appellant was adopted
2O4G Shrinivas Krishnarao Kango vs Narayan Devji Kango and ors
   Anant Bhikappa Patil Minor vs Shankar Ramchandra Patil 70 IA 232 Bajirao and Ors
vs Ramkrishna ILR and K R Sankaralingam Pillai and Anr
vs Veluchami Pillai Minor ILR  referred to
Ramachandra Srinivas vs Ramakrishna Krishna Rao AIR 1952 Bom
453 disapproved
ii Both the courts below found the sale in question valid as the same was effected to meet family necessities
As the appellant did not seek an accounting from the 2nd defendant and as no case was made out for requiring the second defendant to account in respect of moneys received by him as Karta and as the plaint did not state that there was any cash in the hands of the 2nd defendant the High Court was justified in reversing the decree of the trial court directing the payment of Rs 1500 to the appellant
203 E