Case: Shrinivas Krishnarao Kango Vs. Narayan Devji Kango And Others

applicable to adoption by a widow of a deceased coparcener had therefore had therefore no application. It was a case in which the adopted son laid a claim to properties, not on the ground that they belonged to the joint family into which he had been adopted but that they belonged to a collateral to whom he was entitled to succeed as a preferential heir, and it was sought to divest Hanmant of the properties which had vested in him in 1918 on the strength of the decision in - AIR 1943 PC 196 (A). The contention was that if Anant could as adopted son divest the personal properties of Keshav which had devolved on Shankar as his perferential heir, Jivaji could also divest the properties which had devolved on. Hanmant as the perferential heir of vishnu. The learned Judges made no secret of the fact that this contention received support from the decision in - AIR 1943 PC 196 (A), but they were impressed by the fact that the statement of the law in - 12 Ind App 137 (PC (N), as to the rights of an adopted son quoad the estate of a collateral had been reaffirmd and they accordingly held that the decision in - "AIR 1943 PC 196 (A) did not intend to alter the previous law that an adopted son could not divest properties which had been inherited from a collateral prior to the case of adoption. They distinguished the actual decision on the ground that as Keshav had vested in him both the ancestral properties as well as the properties inherited from Narayan, and as admittedly there was a relation back of the rights of Anant in respect of the ancestral properties, there should likewise be a relation back in respect of the separate properties. But it is difficult to follow this distinction. If under the law the rights of an adopted son differ according as they relate to the estate of his adoptive father or to property inherited from collaterals, the fact that both classes of properties are held by the same person can make no difference in the quality of those rights. The position will be analogous to that of a coparcener who has also self-acquisitions, in which case the devolution by survivorship of joint family properties does not affect the devolution by inheritance of the separate properties. 25. The fact is, as frankly conceded by the learned Judges, they were puzzled by the decision in - AIR 1943 PC 196 (A), and as it was an authority binding on the Indian Courts, they could not refuse to follow it, and were obliged to discover a distinction. This Court, however, is not hampered by any such limitation, and is free to consider the question on its own merits. In deciding that an adopted son is entitled to divest the estate of a collateral, which had devolved by inheritance prior to his adoption, - AIR 1943 PC 196 (A) went far beyond what had been previously understood to be the law. It is not in consonance with the principle well-established in Indian jurisprudence that an inheritance could not be in abeyance, and that the relation back of the right of an adopted son is only quoad the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient when an adoption is made by a widow of either a coparcener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alterations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees from limited owners, whether they be widows or coparceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from him would have no protection, as there could be no question of supporting the alienations on the ground of necessity or benefit. And if the adoption takes place long after the succession to the collateral had opened - in this case it was 41 years, thereafter - and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. We must hesitate to subscribe to a view of the law which leads to consequences so inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should be extended so as to lead to unjust results. We are of opinion that the decision in - AIR 1943 PC 196 (A) in so far as it results to properties inherited from collaterals is not sound, and that in respect of such properties the adopted son can lay on claim on the ground of relation back. The decision of the High Court in respect of C schedule properties must therefore be affirmed. 26. It was finally, contended that the defendants had blended C schedule properties along with the admitted ancestral properties so as to impress them with the character of joint family properties. The burden of providing blending is heavily on the plaintiff. He has to establish that the defendants had so dealt with the properties as to show an intention to abandon their separate claim over it. This is a question of fact of which the Courts below have concurrently found against the appellant, and there are no grounds for differing from them.

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

Explanation:
1[ds]But in the present case, the finding of the Courts is that the income from the lands was not sufficient even for the maintenance of the members, and on that, they were right in holding that the plaintiff had not discharged the initial burden which lay on him. But even it we are to accept the contention of the appellant that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold o the facts that that burden had been dischargedLikewise, in the present case all the ancestral Watan lands are intact, and are available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family. Whether we hold, as did the learned Judges of the High Court, that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds the result is the same.The contention of theappellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in consequence erroneous, must failWe are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties, and an issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of opinion that the judgements are admissible under Section 13 of the Evidence Act as assertions of Rukminibai that the properties now in dispute belonged to the joint family3. The oral evidence relating to this is that a family temple stands on it. It cannot be partitionedIn the result, it must be held that the plots. S. Nos. 634 and 635,S. Nos. 639, 640 and641andS. Nos. 642, 644and645 are ancestral properties,andthat the plaintiff is entitled to a half share there in. As substantial superstructures have been put thereon, the appropriate relief to be granted to the plaintiff is that he be given half the value of those plots as on the date of the suitIt is true that reference is also made to the fact that the boy adopted was not actually in existence on the date of the death of, but that, however, would make no difference in the legal position, if the principle of relation back was applicableIt will be seen that in this case no claim of the adopted son to succeed to a collateral was involved,andno question arose as to how far the theory of relation back could be invoked in support of such a claim. The estate claimed was that of his adoptive father, Brajendra,andif the adoption was at all valid, it related back to the date of Brajendras death,andenabled Amarendra to divest BanamalaiConsiderable emphasis is laid on the fact that a coparcener has only a fluctuating interest in the joint family properties, that it may increase by deathanddecrease by birthandthat such a qualified interest as that must carry with it the liability to be divested by the introduction of a new coparcener by adoption. This reasoning, however, is wholly inapplicable to property which is not held incoparcenary, such as the estate of a collateral devolving by inheritanceWe are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties,andan issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties,andthe same was granted. We are of opinion that the judgements are admissible under Section 13 of the Evidence Act as assertions of Rukminibai that the properties now in dispute belonged to the joint familyThe order of the trial court rejecting the document has not been produced before us. But there is on the record a petition filed by the plaintiff on6 after the evidence was closedandbefore arguments were addressed, for the admission of the 32 documents rejected ond thereinit stated that "they have been rejected on the ground of late production". The defendants endorsed on this petition that if the documents were to be admitted at that stage, an opportunity would have to be given to them to adduce evidenceandthe trial would have to bed theprayer for admission of these documents was accordingly opposed. The courtdismissedThe rejection of the documents was therefore clearly made under Order 13, Rule 2,andthere are no grounds for now setting aside that orderandreopening the whole case. This ground of objection must therefore failThe trial Court held thatin the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral,andon that ground, decreed to the plaintiff a half share in S. Nos. 639and640. The High Court reversed this decision observing generally that the evidence relation to the house sites was not clear, "when they were acquired or by whom",andWith respect, we are unable to agree with this view. While it is not unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be found to have been in the possession of a family from time immemorial; it is not unreasonable to presume that it is ancestralandto throw the burden on the party pleadingn to establish it14. It is necessary in this view to examine the evidence relating to the several plots for which no title deeds have been produced. S. No. 634and635 from one block, on which one of the houses has been constructed. The sanads relating to them are Exhibitsthey merely recite that the grantee was in occupation of plots,andthat was confirmed. There is reference in them to a previous patta granted by the Government, Exhibits 52 to 55 are pastas showing that the propertiescomprisedthereinhad been acquired from the Government. If the identity of S. Nos. 634and635 with the propertiescomprisedin these documents had been established, the plea that they are not ancestral would have been made outBut that has not been done,andthe presumption in favour of their being ancestral propertys unrebutted. The claim of the plaintiff to a half sharethereinmust be allowed. S. Nos. 639, 640and641from one block, on which there is another houseg there is no title deed for S. No. 639, Exhibit7 is the sanad for S. No. 640andit merely recognises the previous occupation by the grantee,andthat is consistent with its character as ancestral property. Exhibit terms as Exhibits8 is the sanad for S. No.641andis in the same terms as Exhibit. The claim of the plaintiff with reference to all these items must be upheldIn the result, it must be held that the plots. S. Nos. 634and635,S. Nos. 639, 640and641and