KRISHTAPPA VENKAPPA GADAD Vs. GOPAL SHIVAJI RAMCHANDRA KULKARNI

JUDGEMENT

(1.) THE question submitted for the decision of this Full Bench is capable of being decided on a very narrow point and the question is this :

(2.) NOW, this Court laid down in the earlier decision that, when there was a sole surviving co-parcener and he made certain alienations and there was an adoption in the family subsequent to the alienations, then the alienations were binding on the adopted son because at the dates of the alienations the co-parcener had full right to treat the family property as if it was his own property, and that an adoption which was subsequent to the alienations could not affect the property which was already disposed of by the co-parcener as a person who acted as the full owner of the property. This decision was based on the well-recognised principle in Hindu Law that an adopted son is bound by all lawful alienations; and in deciding this case, the Court also gave effect to the principle enunciated in the decision of the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar, 54 Ind App 248 : (AIR 1927 PC 139) (C) that "when a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. " now, the case that arises here !s different because we have a case, not of a sole surviving co-parcener, but of a partition of a joint Hindu family and members of the divided family making alienations and an adoption taking place after the partition; and the question is What are the rights of the adopted son ?

(3.) MR. Justice Shah and Mr. justice Vyas felt that in the later decision decided by Mr. Justice Bavdekar and Mr. Justice Vyas reported in 56 Bom LR 252 : (AIR 19s4 Born 318) (B), a view was taken which was different from the ratio laid down in the earlier judgment. In that case the learned Judges held that, if there was an adoption after partition and one of the members of the original co-parcenary had made alienations which could not be justified by legal neces- sity, then on the re-opening of the partition the alienations should be allotted to the share of the alienating co-parceners and the adopted son should not be affected by the alienation; It is possible to take the view that the position of the members of the divided family is in law the same as that of a sole surviving co-parcener. Just as the sole surviving co-parcener has every right and authority to dispose of the property as if it was of his absolute ownership, so also after partition the members of the erstwhile co-parcenary have equally the right of disposing of that share which came to them on partition as if it was their property. Now, if the decision of Mr. Justice Bavdekar and Mr. Justice Vyas, in 56 Bom LR 252 : (AIR 1954 Bom 318 (B), conflicted with tile extension of the view taken by this Court in 52 Bom LR 290 : (AIR 1950 Bom 271) (A), as applying to the case of 'members of a disrupted joint family, then we would have considered which was the more correct view the view taken in 52 Bom LR 290 : (AIR. 1950 Bom 271) (A), or the view taken by Mr, Justice Bavdekar and Mr. Justice Vyas in 56 Bum L R 252 : (AIR 1954 Bom 318) (B ). But. in our opinion, the decision of Mr. Justice Bavdekar, and Mr. Justice Vyas. does not turn upon any important principle of Hindu law either relating to the question or relation-back in the case of an adoption or the question of lawful alienations made before adoption which are binding on the adopted son. It is clear from the judgment that these two learned Judges came to the conclusion which they did on the ground that, when a partition is sought to be reopened equities must be done. Now that is a 'well-established principle of Hindu law. Whenever a partition is re-opened, shares must be allocated on a fair and equitable principle, 'and what was uppermost in the minds of these two learned Judges was that, in giving to the adopted son his proper share, no injustice should be done to any coparcener and the adopted son should get his own fair share.