Case: Govind Hanumantha Rao Desai Vs. Nagappa Alias Narahari Laxman Rao Deshpande And & 7 Ors

Hegde, J. 1. This appeal by certificate arises from the decision of the Mysore High Court in R.A. 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. 2. The facts as found by the High Court and which are no more in dispute may now be stated. 3. The appellant is the adopted son of one Ranga Rao alias Ramachandra Rao who died in 1912. He was adopted by the said Ranga Raos widow Seethabai on September 18, 1955. The geneology of the family of Ranga Rao is as follows : "CHART" 4. 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 co-parceners 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 February 14, 1946. Lakshmana Rao died in 1952. As mentioned earlier, the plaintiff was adopted on September 18, 1955 and the suit from which this appeal arises was instituted in 1956 by the plaintiff-appellant represented by his natural father, as his 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 1/3rd 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 Courts decree awarding a sum of Rs. 1, 500/- to the plaintiff. 5. Before proceeding to examine the appellants 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. 6. The Trial Court came to the conclusion that out of the consideration of Rs. 6, 500/- received under the sale deed Ext. 177, the second defendant had not accounted for Rs. 3, 000/-. 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. 1, 500/-. 7. This leaves us with the question as 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 the 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 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. 8. 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 fathers 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 deemed to have been adopted in 1912. Consequently he is deemed to have been a co-parcener in his adoptive fathers 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 plaintiffs adoptive mother was alive, the family cannot be said to have come to an end on the date of partition. But that 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. When the partition took place in 1933, the appellant even if he was a co-parcener on that day could have only got 1/3rd 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 fathers family when Krishna Rao died. On that day his adoptive father was not alive. The devolution of Krishna Raos 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. 9. 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 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 v. Narayan Devji Kango and others. [(1955) 1 SCR 1 : AIR 1954 SC 379 ]. 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 co-parcener 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 Others v. Ramkrishna Krishnarao, [AIR 1952 Bom 463 ] 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 v. Shankar Ramchandra Patil, [70 IA 232] 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 Others v. Ramkrishan, [ILR 1941 Nag 707] 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 fathers family cannot divest the properties that had vested in the other co-parceners. 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 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-born male member whether the birth is natural or legal. If in point of fact, before this arrival, the existing co-parceners 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 circumstance 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 Another v. Veluchami Pillai, Minor, [ILR 1943 Mad 309] relied on by Bombay High Court merely laid down that an adopted son 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. 10. 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 affect the death of the adoptive father. Meanwhile the other co-parceners 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. 11. This Court in Shrinivas Krishnarao Kangos case (supra), 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 collaterals estate, divesting the property that had already vest in some-one else. But the rule laid down by this Court in that case is such 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 plaintiffs adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd 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 plaintiffs claim for a half share in the family properties is unsustainable.

Decision:
0[ds]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 the 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 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 Rao8. 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 fathers 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 deemed to have been adopted in 1912. Consequently he is deemed to have been a co-parcener in his adoptive fathers 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 plaintiffs adoptive mother was alive, the family cannot be said to have come to an end on the date of partition. But that 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. When the partition took place in 1933, the appellant even if he was a co-parcener on that day could have only got 1/3rd 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 fathers family when Krishna Rao died. On that day his adoptive father was not alive. The devolution of Krishna Raos 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 adopted9. 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 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 v. Narayan Devji Kango and others. [(1955) 1 SCR 1   : AIR 1954 SC 379  ]. 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 co-parcener 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 Others v. Ramkrishna Krishnarao, [AIR 1952 Bom 463  ] 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 v. Shankar Ramchandra Patil, [70 IA 232] 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 Others v. Ramkrishan, [ILR 1941 Nag 707] 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 fathers family cannot divest the properties that had vested in the other co-parceners. 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 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-born male member whether the birth is natural or legal. If in point of fact, before this arrival, the existing co-parceners 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 circumstance 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 Another v. Veluchami Pillai, Minor, [ILR 1943 Mad 309] relied on by Bombay High Court merely laid down that an adopted son 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 view10. 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 affect the death of the adoptive father. Meanwhile the other co-parceners 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 decisis11. This Court in Shrinivas Krishnarao Kangos case (supra), 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 collaterals estate, divesting the property that had already vest in some-one else. But the rule laid down by this Court in that case is such 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 plaintiffs adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd 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 plaintiffs claim for a half share in the family properties is unsustainable.