BHIMAJI KRISHNARAO Vs. HANMANTRAO VINAYAK

JUDGEMENT

(1.) THE facts leading up to this first appeal are that one Vinayak Bothe had three sons, Dattatraya, Hanmantrao and Krishnaji. Vinayak and Dattatraya died long before 1923. Krishnaji died in 1923 leaving Hanmantrao as the sole surviving coparcener of the joint and undivided Hindu family, Krishnaji'a widow Eukhminibai adopted the plaintiff on 25th Jane 1935 and the plaintiff filed this suit for his half share in the joint family properties. THE learned Judge gave relief to the plaintiff with regard to some properties, but in the main held that the alienations made by Hanmantrao were binding on him and he could not challenge those alienations and therefore refused to give the plaintiff relief. All the alienations challenged which were made by Hanmantrao were prior to 25th June 1935, and really the only question that has been agitated before us in this first appeal is whether Hanmantrao as the sole surviving coparcener was entitled to alienate joint family properties and whether those alienations are binding on the adopted son.

(2.) MR. Shah relies on the principle enunciated by the Privy Council that an adoption relates back to the death of the adoptive father and he particularly relies on a passage appearing in the judgment of MR. Ameer All in Pratapsing Shivsing v. Agarsigji Raisingi, 46 I. A. 97 : (A. I. R. (5) 1918 P. C. 192) and the passage appears at p. 107 : "again, it is to be remembered that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son, and that 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. " It is to be noted that what was emphasised by the Privy Council when giving retrospective effect to the adoption was that the continuity of the line was not in any way interfered with and there was no hiatus. The Privy Council did not say that an adoption had retrospective effect in all respects and that an adopted son was put in the same position as an aurasa eon. This statement of the law was reiterated in Anant Bhikappa v. Shanker Ramchandra, 46 Bom. L. R. 1 at p. 8 : (A. i R. (30) 1946 P. C. 196) and their Lordships at that page set out the passage in the judgment of MR. Ameer Ali to which I have just referred. The decision in Anant v. Shanker, (46 Bom. L. R. 1 at p. 8 : A. I. R. (30) 1943 P. C. 196) was that a title based on in. heritance could be displaced if the property had gone out by inheritance from the last surviving coparcener and the widow of a deceased coparcener adopted and the adopted son came into the joint family and as it were revived the joint family. Therefore, what is urged before us is that as the joint family never came to an end and as the adoption had retrospective effect, and it must be considered that the adopted son was in existence in the eye of the law at the death of the adoptive father, therefore the surviving coparcener could not alienate properties to the detriment and prejudice of the adopted son. If the joint family was constituted by Hanmantrao and the adopted son, undoubtedly Hamnatrao would have no power to alienate. The mere fact that when the alienation took place the plaintiff was not adopted would make no difference to the position in law, because the adoption must be given retrospective effect and it must be deemed as if at all material times the joint family consisted of Hanmantrao and the plaintiff. We frankly confess that logically it is very difficult to resist the force of this argument. But we are faced by a decision of the Privy Council which has considered this very point and has come to a contrary conclusion, and that is in Krishnamurthi Ayyar v. Krishnamurthi Ayyar, 64 I. A. 248 : (A. I. R, (14) 1927 p. C. 139 ). At p. 262, their Lordships carefully considered all the decisions bearing on this point and then they considered the matter on principle and came to the conclusion 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. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt. For the will speaks as at the death of the testator, and the property is carried away before the adoption takes place. " Therefore, the test which the Privy Council asks us to apply is whether when the alienations were made Hanmantrao had full power over the property which he was alienating. The answer to that question must be in the affirmative. He was the sole surviving coparcener and he had full right to treat the ancestral property as if it was his own property. The adoption was subsequent to the alienation and therefore that adoption Cannot affect the property which was already disposed of by a person who acted as the full owner of the property.