RAMCHANDRA BALAJI Vs. SHANKAR APPARAO

JUDGEMENT

(1.) THIS Letters Patent Appeal against the decision of N. J. Wadia J. raises an important question of Hindu law which was regarded in this Province as settled by the full bench ruling in Balu Sakharam v. Lahoo Sambhaji [1937] Bom. 508 : S. C. 39 Bom. L. R. 382 and a series of other rulings which followed it.

(2.) THE facts are simple and undisputed. One Ramchandra Devji died in 1900 possessed of the lands in suit and the right to kulkarniki watan service in four villages. He left behind him two sons Apparao alias Gururao and Balaji. Before Apparao's name was entered in the Kulkarniki Pali Register after his father's death, he died issueless in 1904 leaving behind him his widow Bhagubai defendant No. 4. THE name of Apparao's brother Balaji was then entered in the Pali Register for the kulkarniki service. Balaji adopted Ramehandra defendant No. 1 in 1919 and in 1920 he passed in his favour a deed of relinquishment in respect of both his immoveable property and the kulkarniki watan rights in the four villages. Ramchandra's name was then substituted for that of Balaji in the Pali Register by the Collector. Under the deed of relinquishment Balaji transferred all the family property to Ramehandra, defendant No. 1, on receiving from him Rs. 1,500 for his maintenance. Balaji died in 1923 and many years after that, on May 25, 1936, Apparao's widow Bhagubai took the plaintiff in adoption and the plaintiff filed this suit in 1937 against defendant No. 1 and his two sons defendants Nos. 2 and 3 asking for a partition and possession of his half share in the family property and for a declaration that he was the owner of the sixteen annas kulkarniki right of service in the said four villages and that he was " the nearer heir than defendant No. 1 for his name being entered in the Pali Register. " THE defendants contended that the effect of the deed of relinquishment passed by Balaji to defendant No. 1 in 1920 was to bring about a partition between them with the result that the coparcenary came to an end and that the subsequent adoption of the plaintiff by Apparao's widow, though valid, would give the plaintiff no right either to the immoveable property or to the right of service which had already become the separate property of defendant No. 1 long before the plaintiff's adoption. THEy also contended that the plaintiff was not entitled to the declaration claimed by him. THE trial Court upheld both these contentions and dismissed the suit with costs. In appeal the learned District Judge took a different view and held that the deed of relinquishment did not effect a partition between Balaji and defendant No. 1 and that the coparcenary did not terminate as a result of the execution of that deed. He, therefore, found that defendant No. 1 continued to be the sole surviving member of the joint family and, therefore, not only was the plaintiff's adoption valid, but it entitled him to claim a half share in the property of the family in the hands of defendant No. 1. He also held that the plaintiff was entitled by the rule of primogeniture to have his name entered in the watan register in preference to defendant No. 1 in respect of the kulkarniki service in the four villages. Although the prayer clause in the plaint did not specify to whom the plaintiff claimed to be declared the nearer heir, the learned District Judge thought that he wanted a declaration that he was the nearest heir to the deceased representative watandar Ramchandra Devji, his grandfather. A decree for partition and a declaration to that effect were granted to the plaintiff and the decree was confirmed in second appeal.

(3.) THIS view was approved of by their Lordships and the use of the words "retrospective effect" indicates that the adopted son is by a legal fiction to be regarded as born at his father's death. Mr. Datar, however, points out that this is opposed to the view expressed by their Lordships in Bamundoss Mookerjea v. Mussamut Tarinee (1858) 7 M. I. A 169. In that case it was argued before the Judicial Committee that a widow who had received an authority from her husband to adopt should be considered as pregnant at the date of his death and that the son adopted by her should be regarded as a posthumous son, but the Judicial Committee refused to act upon any such analogy and held that although a son when adopted acquires the full rights of a natural born son, his rights could not relate back to any earlier period. Referring to this case the learned author of Mayne's Hindu Law (tenth edition, p. 277) observes: The rights of the boy as adopted son arise only from the date of the adoption in the sense that he is bound by such acts of the widow as would bind the heirs of the husband after her. But so far as the continuity of the line is concerned, the adoption has a retrospective effect and there is no hiatus in it.