RAMCHANDRA HANMANT Vs. BALAJI DATTU KULKARNI

JUDGEMENT

(1.) Second Appeal No. 940 of 1952 which has been referred to a full bench raises the vexed question of the right of an adopted son to divest the property which has already become vested, and the very few facts which are necessary to be stated in order to appreciate the question that has been raised are that Balaji and Ramchandra were two brothers. They were separate and Balaji had predeceased Ramchandra. Ramchandra died on 10-10-1903, leaving his widow Tarabai who died shortly after him on 12-10-1903. Ramchandra had a son by the name of Hanmant who had predeceased both his parents and he had left a widow by the name of Sitabai. Balaji had a son named Dattu who died on 20-1-1916, and Balaji the defendant is the adopted son of Dattu. Sitabai adopted the plaintiff as a son to her husband on 21-1-1945. Ramchandra left certain 'vatan' lands which went to Dattu on the death of Tarabai and on Dattu's death Balaji on his adoption went into possession of those lands, and the plaintiff filed the suit for recovery of lands belonging to Ramchandra which had gone to Balaji.

(2.) Now, before we consider the authorities that have been cited at the Bar, perhaps it would be better to approach this question on principle. When Dattu succeeded to the property of Ramchandra there was a potential mother in the family of Ramchandra, viz., Sitabai, and therefore it is well settled since the Privy Council decided -- 'Anant Bhikappa v. Shankar Ramchandra', AIR 1943 PC 196 (A), that Dattu inherited this property subject to defeasance, the defeasance coming into operation in the event of the potential mother Sitabai adopting a son into the family of Ramchandra. But it is equally well settled that subject to this defeasance Dattu had an absolute interest in the property which he inherited, He was the full owner of the property, he could deal with that property as his own, and it would be erroneous to suggest that Dattu had only a qualified interest in this property. As an absolute owner he could alienate the property and the alienation would be binding upon any son adopted subsequent to the alienation. If the property had remained with Dattu when the plaintiff was adopted, no question could have arisen with regard to the right of the plaintiff to divest the property vested in Dattu. But the question that has arisen in this appeal is whether the right that the plaintiff had so long as the property remained with Dattu can be exercised, against Balaji who is the heir of Dattu. The matter may be looked at in this way. Balaji has succeeded to the estate of his father Dattu, and what the plaintiff is really claiming is not the property of Ramchandra but the property of Dattu which Balaji has inherited as his son. If the property had been with Dattu, the result of the plaintiff's adoption would have been that the doctrine of relation back would have come into force and by legal fiction it would have been assumed that the plaintiff was alive at the date when Ramchandra died. Therefore, really, the plaintiff would have displaced Dattu as the preferential heir to his own grand-father. But it is difficult to understand how that principle can apply when we are dealing with property in the hands of Dattu's heir. It cannot be said that 'quae' the estate of Dattu the plaintiff is an heir preferential to Balaji, and really what the plaintiff is claiming is to displace Balaji and to contend that be is the heir of Dattu.

(3.) It has been urged by Mr. Albal on behalf of the plaintiff that it does not matter with whom the property is or who is in possession of the property. The limitation attaches to the property itself and it attaches as much in the hands of Balaji as it did in the hands of Dattu. Now, if that were the true principle, then it is difficult to understand why that limitation should not attach to property even if Dattu alienated the property. The answer given by Mr. Albal is that in the case of alienation certain equities arise and therefore the Courts have laid down that if there was a lawful alienation by Dattu, the alienation would have been binding on the plaintiff. But this Court has now held that if Dattu made a gift of the property which he inherited from Ramchandra or if he made a will with regard to the property, both the gift and the testamentary disposition would be binding upon the plaintiff. It cannot be suggested that there is any higher equity in favour of a donee or a legatee than there is in favour of Dattu's heir. Therefore, in our opinion, once the principle is accepted, as indeed it must be accepted, that the property which Dattu inherited from Ramchandra was held by him absolutely as a full owner, then it is impossible to accede to the plaintiff's contention that Balaji inherited to that property subject to certain limitations. The possibility of there being a defeasance only continued so long as Dattu was alive. When, he died, he left his property, which was his absolute property, to his heir, and there is no reason in principle why that provision with regard to defeasance should continue after the property had been inherited by Balaji as the heir of Dattu.