Case: Shripad Gajanan Suthankar Vs. Dattaram Kashinath Suthankar And Ors

partition in order that the property should be redivided on a fair and equitable basis."17. Shri Javali pressed before us that Balajis case 47 Bom LR 121 = (AIR 1945 Bom 229 FB) was a closer parallel to our case, forgetting that as Chagla, C. J., explained in Bhimji, 52 Bom LR 290 = (AIR 1950 Bom 271 ) that Lokur, J., decided that case on the footing that a partition was not an alienation and the conclusion would have been different had he treated a partition as a transfer. But now, this Court has laid down that a post-partition adoption cannot reunite the family even though it may not deprive him of a share so long as some coparcenary property existed. The Full Bench case in Sankaralingam Pillai v. Velu Chami Pillai, ILR (1943) Mad 309 = (AIR 1943 Mad 43 (FB)) also does not militate against the Bombay view. Leach, C. J., in the course of the judgment, observed:"If the law recognises in an adopted son of a deceased coparcener the right to share in the estate as it existed before the partition, propertywhich has not been lawfully alienated in the meantimeis still within his reach."(emphasis supplied).Mysore also has fallen in line with this strand of thought. In Somasekharappa v. Basappa Channabasappa, (1960) 38 Mys LJ 687 = (AIR 1961 Mys 141) a Bench of that Court laid down the law condensed in the headnote thus:"A son adopted by a widow of a deceased coparcenr cannot claim the joint family property in the hand of a transferee from the heir of the last surviving coparcener, even though the transfer took place before the adoption. The doctrine of relation back will not extend to a case where a transfer has already been made either by the sole surviving coparcener or by his heir. The principle is that when a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, no rights of a son who is subsequently adopted can affect that portion which is disposed of."True the decision under appeal before us also is from Mysore and takes the opposite view.18. We reach the end of the journey of precedents, ignoring as inessential other citations. The balance sheet is clear.The propositions that emerge are that: i) A widows adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last: ii) Nevertheless, the factum of partition is not wiped out by the later adoption; iii) Any disposition testamentary or inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son; iv) lawful alienation, in this context, means not necessarily for a family necessity but alienation made competently in accordance with law: v) A widows power of alienation is limited and if - and only if - the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Banaras school; vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue has no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene.Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here.19. Applying the above formulations to the present facts, the conclusion is clear.The plaintiff will be eligible to get one-third of the available joint family property. In computing net property the gift by Mahadev to the 2nd defendant has to be excluded. But the allotment for maintenance of the 3rd defendant will have to be ignored, brought into the corpus and, in the division by metes and bounds allotted to the share of the plaintiff.20. One more problem, rather ticklish, remains - the equitable effectuation of the partition. The Full Bench decision of the Bombay High Court in Krishtappa, AIR 1957 Bom 214 (FB) emphasized that the adopted sons right, arising long after other proprietary events, should be worked out not rigidly but justly.Chagla, C. J., laid down the guidelines already extracted while dealing with the case earlier. We agree with this sensitive approach and proceed to adopt it here. The plaintiff has to be given his onethird share as in 1944, when the partition took place. Assuming that the entire estate was then worth 3 lakhs, the adopted son would have got a lakh of rupees, say. But Mahadevs share has been entirely gifted away and must be ignored. Which means that the plaintiffs one-third share valued at one lakh will have to come out of Gajanans properties which, on our arithmetical assumption, would be one-half of three lakhs, i. e. 11/2 lakhs. It would be unfair to deprive Gajanan of a lions share out of his allotment merely because, before adoption, he had not parted with his properties. It would be eminently just to make the first defendant bear only one-half the burden cast by the notional re-entry of the plaintiff into the coparcenary and we direct a division into two equal shares of such of the properties which fell to the first defendants share in the 1944 partition as were with the first defendant at the date of adoption, and award one share to the plaintiff. The justice and equity of the situation, not any inflexible legal principle, prompts this course. We confess that the pre-statutory law of adoption, in its conflict between fiction and fact, has had zigzag course in Courts and we have read the diverse dicta imbued by the Holmseian thought that the life of the law is not logic but experience.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. It is established law that the adoption by a widow relates back to the date of the death of the adoptive father, which, in this case, took place in 1921. Indeed the complexity of the present case arises from the application of this legal fiction of "relation back" and the limitations on the amplitude of that fiction vis-a-vis the partition of 1944, in the light of the rulings of the various High Courts and of the Judical Committee of the Privy Council, and of this Court, the last of which is Govind v. Nagappa (1972) 3 SCR 200   : (AIR 1972 SCIt is settled law that the rights of an adopted son spring into existence only from the moment of the adoption and all alienations made by the widow before the adoption, if they are made for legal necessity or otherwise lawfully, such as with the consent of the next reversioners, are binding on the adopted son. The narrow but important question that arises here is as to whether the adoption made in 1956 can upset the partition of 1944, validly made under the then conditions, and whether the gift by Mahadev of properties exclusively set apart to him and, therefore alienable by him, could be retroactively invalidated by the plaintiff on the application of the legal fiction of "relation-back". It is unlikely that a similar question will arise hereafter since Section 4 ofthe Hindu Succession Act, 1956 has practically swept off texts, rules and the like in Hindu Law, which were part of the law in force immediately before the commencement of the Act, till provisions have been made for such matters in the Act. Since on the husbands death the widow takes an absolute estate, questions of the type which engage us in this appeal will be stilled for ever. Of course we need not investigate this aspect of the matter as the present case relates to a prestatutory adoption. Even Section 12 ofthe Hindu Adoptions and Maintenance Act, 1956, makes it plain that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of theprinciples compete in this jurisdiction and judges have struck a fair balance between the two, animated by a sense of realism, impelled by desire to do equity and to avoid unsettling vested rights and concluded transactions, lest a legal fiction should by invading actual facts of life become an instrumentality or instability. Law and order are jurisprudential twins and this perspective has inarticulately informed judicial pronouncements in this branch of Hindu Law. In short, the principle of relating the birth of the adopted son to the last day of the adoptive fathers life is put in peaceful co-existence with recognition of rights lawfully vested on the basis of the realities then existing. The law frowns on divesting vested rights and keeping in cold storage or suspended animation normal legal events like competent transfers and collateral succession, except when compelled by jural mandate. So viewed, the partition of 1944 was valid; so also the gift of his exclusive share by Mahadev, Defendant No. 1 to Shripad, Defendant No. 2. The plaintiff could reopen the partition only to the limited extent rights flowing from these two facts viz., disruption of jointness and alienation by one share permitted. Nor is law inhuman or inequitable or abstract, its essence being social engineering. Therefore, the humane endeavour to work out equities in a given case has engaged the conscience of judges in the reported rulings. Here, the circumstances that the whole share of Mahadev has gone out of the corpus of the coparcenary on account of the gift inflicts an injustice on the plaintiff if he is to get only one-third of the properties which were allotted to Gajanan whose branch still remained intact; equally unjust it would be on Gajanan if out of his allotment the plaintiff were to slice off what is equal to one-half of the total assets as at the time of partition in 1944 merely because of the misfortune that he had still kept it as the asset of his branch at the time of the adoption. Equitable considerations would suggest a modification. When the adoption was made there were only two coparceners and the corpus available only to Gajanans properties. So a half share out of those items may be fair, in the totality of circumstances. Maintenance to the mother and profits due to the plaintiff are minor matters and will be gone into last.By parity of reasoning we have to give the plaintiff a one-third share, which alone even an aurasa son of late Kashinath would have got stirpitally. To undo the divided status and continue the coparcenary till the date of the suit so as to award a half share to the plaintiff as representing one of the two surviving branches would be legal fiction run riot. Neither principle nor precedent compels that course.14. We now sail into still more troubled waters. Where is this share to come from? From the coparcenary property, less what has legitimately gone out of it. If the widow of a deceased coparcener had alienated for binding necessity, such property has to be excluded - although a strict projection of the fiction would mean that the adopted son was alive at the time succession opened and the widow could not have the right to even a limited estate and a fortiori could not competently alienate for necessity or otherwise. Liberties with the legal fiction have been taken in this and other aspects of the "relation back" theory. If a property has validly gone out of the hotch-potch the adopted son cannot recall it. The fact of partition cannot be drowned by the subsequent adoption because when it was entered into there was no legal impediment in doing it. Likewise, if a manager or widow alienates for binding necessity the constructive antedated nativity of the adopted son cannot nullify what has taken place before he in actuality entered the coparcenary. By the same token, a sole surviving coparcener (except perhaps in the Banaras School where unlike in other schools he has no independent power of transferring his share) may dispose of the estate before adoption by a deceased coparceners widow and that act defeats the claim of a later adoptee. Such is the inexorable operation of time and circumstance on long later adoptions and their proprietary failout.We reach the end of the journey of precedents, ignoring as inessential other citations. The balance sheet is clear.The propositions that emerge are that: i) A widows adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last: ii) Nevertheless, the factum of partition is not wiped out by the later adoption; iii) Any disposition testamentary or inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son; iv) lawful alienation, in this context, means not necessarily for a family necessity but alienation made competently in accordance with law: v) A widows power of alienation is limited and if - and only if - the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Banaras school; vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue has no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene.Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here.19. Applying the above formulations to the present facts, the conclusion is clear.The plaintiff will be eligible to get one-third of the available joint family property. In computing net property the gift by Mahadev to the 2nd defendant has to be excluded. But the allotment for maintenance of the 3rd defendant will have to be ignored, brought into the corpus and, in the division by metes and bounds allotted to the share of the plaintiff.20. One more problem, rather ticklish, remains - the equitable effectuation of the partition. The Full Bench decision of the Bombay High Court in Krishtappa, AIR 1957 Bom 214   (FB) emphasized that the adopted sons right, arising long after other proprietary events, should be worked out not rigidly but justly.Chagla, C. J., laid down the guidelines already extracted while dealing with the case earlier. We agree with this sensitive approach and proceed to adopt it here. The plaintiff has to be given his onethird share as in 1944, when the partition took place. Assuming that the entire estate was then worth 3 lakhs, the adopted son would have got a lakh of rupees, say. But Mahadevs share has been entirely gifted away and must be ignored. Which means that the plaintiffs one-third share valued at one lakh will have to come out of Gajanans properties which, on our arithmetical assumption, would be one-half of three lakhs, i. e. 11/2 lakhs. It would be unfair to deprive Gajanan of a lions share out of his allotment merely because, before adoption, he had not parted with his properties. It would be eminently just to make the first defendant bear only one-half the burden cast by the notional re-entry of the plaintiff into the coparcenary and we direct a division into two equal shares of such of the properties which fell to the first defendants share in the 1944 partition as were with the first defendant at the date of adoption, and award one share to the plaintiff. The justice and equity of the situation, not any inflexible legal principle, prompts this course. We confess that the pre-statutory law of adoption, in its conflict between fiction and fact, has had zigzag course in Courts and we have read the diverse dicta imbued by the Holmseian thought that the life of the law is not logic but experience.