Full Judgment Text
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PETITIONER:
GOVIND HANUMANTHA RAO DESAI
Vs.
RESPONDENT:
NAGAPPA ALIAS NARAHARI LAXMAN RAO DESHPANDE AND & 7 ORS.
DATE OF JUDGMENT25/01/1972
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
REDDY, P. JAGANMOHAN
PALEKAR, D.G.
CITATION:
1972 AIR 1401 1972 SCR (3) 200
1972 SCC (1) 515
CITATOR INFO :
R 1974 SC 878 (6,12)
ACT:
Hindu Law--Adoption--Theory of relation back--Adoption by
widow of deceased coparcener--Before adoption partition of
property by surviving coparceners--Share which adoptive son
entitled to.
HEADNOTE:
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 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 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
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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 partition,by
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 1/3rd 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 v. Narayan Devji Kango and ors.,
[1955] 1 S.C.R. 1; Anant Bhikappa Patil, Minor v. Shankar
Ramchandra Patil, 70 I.A. 232; Bajirao and Ors. v.
Ramkrishna, I.L.R. [1941] Nag. 707 and K. R. Sankaralingam
Pillai and Anr. v. Veluchami Pillai, Minor, I.L.R. [1943]
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 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]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 527 of 1967.
Appeal from the judgment and decree dated August 2nd/3rd,
1965 of the Mysore High Court in Regular First Appeal No.
147 of 1958.
M. Natesan and K. Jayaram, for the appellant.
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 deci-
sion 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.
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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
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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
Deft.3 (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 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 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
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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. When. the partition took place in 1933, the
appellant even if he was a coparcener 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
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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
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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 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 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. 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 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(3), 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. v. Rant-
(1) [1955] 1 S.C.R. 1. (2) A.I.R. 1952 Bam.463
(3) 70 I.A. 232.
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206
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 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. v. 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) I.L.R. [1941] Nag. 707.
(2) I.L.R. [1943] Mad. 309.
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 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
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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 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
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.
S.C. Appeal dismissed.
(1) [1955] 1.S.C.R. 1.
208