GOVIND HANUMANTHA RAO DESAI

NAGAPPA ALIAS NARAHARI LAXMAN RAO DESHPANDE

AND & 7 ORS.

January 25, 1972

(K. S. HEGDE, P. JAGANMOHAN REDDY AND D. G. PALEKAR, JJ.]

Hindu Law-Adoption-Theory of relation hack-Adoption by widow of deceased coparcener-Before adoption partition of property b:y surviving coparceners-Share which adoptive son entitled to.

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 existink 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 1/2 to 1/3 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 hl. adoption related back to the date of death of his adoptive father; by a fiction of law, be must he deemed to have been in existence when K and L divided the properties between them; the partition, having been effected without bis joinder, the same had to be ignored; and, therefore, he wa• 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 elf K.

Dismissing the appeal,

HELD . ( i) The appellant must be deemed to have been adopted in 1912 when R died. Therefore, he must he deemed to have~ a co.- parccner in his adoptive father's family when. K and L partitioned the properties in 1933. The partition having been effected without his consent, 1t 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 he determined after taking into consideration the fact that K & L separated from the family in 1933. The appellant can ignQre the actual partition, by meters aild bounds effected by K and L and ask for a repartition of the properties but bis adoption by itself cannot reunite

the divided family. The rights of an adopted son cannot be more than that df his adoptive father.

The fiction that an adoption relates back to tho date of the death of the adoptive lathe\'. applies only wheo the claim

of the adopted son relates to the estate of the adoptive father.

H the appellant's adoptive father was alive in 1933, when the partition took pW:e, he could not have obtained anything more than I/3rd share in the family properties. Therefore, the ap_pellant's claim for a half share in the family properties is unsustainable. l204 O; 2<YT Bl

lll

The ; uternative 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, tho. same would have developed on L by succession and the property once vested:, cannot be divested as in that property the plaintiff'•

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 devolution 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. ~204 G]

Shrinivas 'Krishnarao Kango v. Narayan Devji Kango and ors., [1955] 1 S.C.R. 1; Anaizt Bhikappa Patil, Minor v. Shankar Ramchandra Patil, 70 I.A. 232; Baiirao and Ors. v. Ramkrishna, I.L.R. ~1941] Nag. 707 and K. R. Sankaraliam Pillai and Anr. v. Veluchaml Pillai, Minor, I.L.R. 119431 Mad. 309, referred to,

Ramachandra Srinivas v. Ramakrishna Krishna Rao, A.I.R. 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 req_uiring the second defendant to account in respect of moneys ro- D ceived by him as Karta and as the plaint did not state that there was any cash in the bands 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 El

CML APPELLATE JURISDICTION : Civil Appeal No. 527 ot 1967.

Appeal from the judgment and decree dated August 2nd/3rd, 1965 of the Mysore Hgh Court in Regular First A.ppeal No. 14 7 of 1958.

M. Natesan and K. Jayaram, for the appeltant,

~· S. S. Shukla, for respondents Nos. 1 to 4.

The Judgment of the Court was delivered by

Hedge, J. 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. other minor contention had also been urged which will be referrrit 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. '

Tlie . appellant is the adopted son of one . Ranga Rao . alias Ramachandra Rao who died in 1912. He was adopted by the

said Ranga Rao's wid'Ow Seethabai on September 18, 1955. The A gi:neo!ogy of the family of Ranga Rao is as follows :

KRISHNA RAO DESHPANDE (Died 1934) MARRIED RADHABAI (Died 1935)

Ranaa Rao alias Ramcbandra Rao

(died 1912)

. Mmied Seothabai

(Defendant No. !)

Govinda (Adopted on 1S..9-19SS)

Plaintiff

Hanumantfu.

Rao (went out of tho family by adoption).

I, aksh;,, ana Rao (died 6-9-19'2) Mmied

.. •.

venkubai ·!st wife (died 1904)

-~ ts; r· Deft. 3 Del\·. s. .

kiiuyabli Deft. 7

Hanumantha:.Rao went a.It of'the fiUmly 'havmgbeen ~

 into some other family. Then: W\IS. a lion between Krislm&' Rao 'ud 1; aJcsbiwiJla Rao, the oiily twO existiili -~ that time, in 1933. After partition Krishna Rai> IS said to have ueathed his properties to SOll)e _of , Iris reJa.tiQllS as. per bis-will: R dated November 8, 1934. Sui1sequently there W84 a er partition between Laksbmana Rao and defendant No. Z 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 l/3rd of the properties l).eld 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. 1500/- 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 betweea Krishna Rao and Lakshmana Rao.

The genuineness of that G 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 beqthed 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 deemed fi to have been .in .eliistence when Krishna Rao and Lakshmana ' - . .

Rao divided the properties amongst themselves. The said parti tion hav.iD.g been effected without his joinder, the same has tQ bo -

ignored. Hence he is entitled to a half share in the properties.

A Alternatively, it was contended that the plaintiff is entitled to get by suecession 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 8 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 C follows that the appellant must be deemed to have be,,; n 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 D separate froni 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 E 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 coparcener on that day could have only got I/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 e.ti- Y titled 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 b 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 G 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 plaintiff's adoptive father had no right of his own. The doctrine of relation H back is only a legal fiction. There is no justification to logically eXtend that fiction. In fact the plaintiff had nothing to do with hfa adoptive .father's family when Krishna Rao died.

On that day

GOV!ND v. NAGAPPA ,(Heg~, /.) 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 plaintifl was adopted.

This lakes us to the decided cases. A long line of decisions has finnly 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 ;:efer to the decision of this Court in Shrinivas Krishnnrao Kango v. Narayan Devji Kango and Ors. (1).

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 separa.te 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 Lakslunana Rao and ask for a repartition of the properties but his adoption by iiself 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 ori the decision of the Bombay High Court in Ramchandra Shrinivas and Ors. v. 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 andhis 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 fami)y 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 P!llil, 1,1inor

v. Slwnlcar ltamchandra Patil('), relied on by the High Court did not co!ISider that question.

It is true that some of the observations of Chief Justice Stone in Bajirao and Ors.

v. Ram-

(1) fl9SS) I S.C.R. I.

(2) A.I.R. 1952 Bam.463

(3) 70 I.A. ~32.

krishna ( 1), 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 nat•ire 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 caamot prejudice by partitioning the rights of the after-born 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. v.

Veluchami Pillai, Minor('), 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 bOm on the daie of death of his 'adoptive father. Acceptance of the new fiction canvassed on behalf of the plaintiff is bjound to create various complications. . Hinu 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) I.L.R. [1941] Nag. 7!17.

(2) I.L.R. (1943] Mad. 309.

A father.

Meanwhile the other coparceners might have dealt with the family property on the ba8is 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 Jaw texts nor authorised by stare decisis.

This Court in Shrinivas Krishnarao Kango's case( 1) 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 *at the question that arose for decision !n 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 crmclusion. The rights of an adopted son cannot be more than that of his adoptive father. If the plaintiff's adoptive father was alive iii 1933 when the partiti9n took place, he could not have obtained anything more than I/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 -hav-e got if he had been adopted prior to that date. In our judgment the plaintift's claim for a half share in the family properties is unsustainable.

In the result th.is appeal fails and the same is dismissed with costs. s.c. 4ppeal dismissed.

(I) [1955) l.S.C.R. I.