K R SANKARALINGAM PILLAI Vs. VELUCHAMI PILLAI, MINOR BYADOPTIVE MOTHER AND NEXT FRIEND CHELLA THAYI ALIAS MEENAKSHI AMMAL

JUDGEMENT

(1.) This second appeal raises a question of some difficulty and importance in the Hindu law of adoption. The facts are undisputed and may be briefly stated. One K. Ramaswami Pillai had four sons namely, defendants 1 and 2,. K.R. Karuppanna Pillai the deceased husband of the 6 defendant and K. R. Ramaswami Pillai the deceased husband of the next friend of the minor plaintiff. They formed members of an undivided family. K. R. Ramaswami died in November, 1924 issue-less leaving his widow Chellathayi. Karuppanna died in 1924 leaving his widow Parvathi the 6 defendant. Ramaswami Pillai the father died in 1929. In the middle of 1936 defendants 1 and 2 effected a partition and divided the joint family properties between themselves. Subsequent to the partition Chellathayi adopted the plaintiff on 25 January, 1937. and the 6 defendant adopted the 3rd defendant on 31 January, 1937. This suit is by K. R. Ramaswami Pillai's adopted son the plaintiff by his adoptive mother Chellathayi for recovery of one-fourth share of the property. The main defence is that the adoption, having taken place subsequent to the partition, it was invalid and in any event the estate to which the defendants became entitled by virtue of the said partition could not be divested by the adoption. Both the lower Courts found in favour of the factum and validity of the adoption. In regard to the validity of the adoption Mr. Rajah Aiyar has stated that in view of the decision in Panyam V/s. Ramalakshmamma (1931) 62 M.L.J. 187 : I.L.R. 55 Mad. 581 by which I am bound, he does not propose to contest its validity before me. Both the lower Courts have also held that the fact that the adoption look place subsequent to the date of partition is no bar for the recovery of the share which the plaintiff is entitled to as the adopted son of Ramaswami Pillai.

(2.) The question for decision is whether this view is sound. The arguments for and against the said view have been very ably presented both by Mr. Sitarama Rao on behalf of the plaintiff and Mr. Rajah Aiyar on behalf of the 1 defendant, who is resisting the claim of the plaintiff. I may at the outset state that there is no direct decision of this Court on this question. There is an obiter dictum in Krishna V/s. Sami (1885) I.L.R. 9 Mad. 64 (F.B.) which is exactly in point in favour of the view that the plaintiff is entitled to claim a share. As against this view there are decisions of the Bombay High Court--(Vide Irappa Lokappa V/s. Rachayya Madivallayaa I.L.R. (1940) Bom. 42 .Hirachand Gangji V/s. Sojpal I.L.R. (1939) Bom. 512 and Balu Sahharam V/s. Lahoo Sambhaji I.L.R. (1937) Bom. 508 (F.B.). The quesion is which view is in accord with the principles of Hindu law as established by judicial decisions particularly of the Privy Council. In this case at the date of the death of the brothers Karuppanna and Ramaswami, the family was undivided and it continued to be undivided until 1936. It is undisputed that if the adoption of the plaintiff was made before that date the adopted son would be entitled to recover the share of his father. The question is whether the fact of partition prevents him from claiming it. The recent decisions of the Privy Council, particularly Amarendra Man Singh's case in Amarendra Man Singh V/s. Sanatan Singh (1933) 65 M.L.J. 203 :L.R. 60 I.A. 242 :I.L.R. l2 Pat. 642 (P.C.) have laid down that the power of a Hindu widow to adopt a son to her deceased husband is not dependent on the question of her husband's estate vesting in her or on the fact, of the adopted son divesting the said estate vested in any person other than the adopting widow. In the course of the judgment in, Amarendra Man Singh V/s. Sanatan Singh (1933) 65 M.L.J. 203 :L.R. 60 I.A. 242 :I.L.R. l2 Pat. 642 (P.C.) Sir George Lowndes observed at page 657 thus: Their Lordships think, from this decision, that the vesting of the property on the death of the last holder in someone other than the adopting widow, be it either another coparcener of the joint family, or an outsider claiming by reverter, or, their Lordships would add, by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption. He further added that the true principle must be found upon the religious side of the Hindu doctrine and that, her power would not be exhausted or become extinct until it was shown that the deceased husband had left a son who was capable of continuing the line either by giving birth to a natural son or by his leaving a widow who could continue the line by means of an adoption. The facts in that particular case are instructive. One Brajendra was the owner of an impartible estate and he died in 1903 leaving his son Bibhudendra and his widow Indumati. Bibhudendra died unmarried and thereupon the property vested in one Banamali a distant sapinda by inheritance. Indumati adopted Amarendra, a week after the property vested in Banamali. The Court of Wards took possession of the estate on behalf of the adopted son. Banamali filed a suit for recovery of the estate challenging the validity of the adoption. Their Lordships held the adoption to be valid and dismissed the suit of Banamali. The case was decided on the assumption that Banamali. was a separated sapinda claiming strictly by inheritance and when the property on the death of Bibhundendra vested in Banamali, it did not vest in him as a surviving coparcener. The principle of this decision was followed by their Lordships in Vijaysingji V/s. Shivsangji (1935) 68 M.L.J. 701 : L.R. 62 I. A. 161 I.L.R. 69 Bom. 360 (P.C.) That was also a case relating to an impartible . estate. One Himatsangji died leaving two sons Chandrasingji and Bhim-sangji. Chandrasingji succeeded to the estate as the elder son and died in 1899 leafing him surviving his son Chatrasingji and his widow Kesarba. In 1915 Chatrasingji was adopted by the. widow of one Kunwarsahib Bapusahib the proprietor of an impartible estate. Thereupon Kesarba adopted Mansangji as a son to her deceased husband Chandrasingji. In 1918, Bhimsangji filed a suit claiming the impartible estate called the Ahima estate on the ground that Chatrasangji by reason of his adoption in. another family had forfeited his right in the Ahima estate which then devolved upon him according to the rule of primogeniture. The High Court took the view that the adoption was invalid and that Bhimsangji was entitled to the properties which constituted the Ahima estate. They also negatived the claim set up by Chatrasingji that though he was adopted to another family he still retained his estate in the original family. Their Lordships of the Privy Council did not decide this question but reversed the decision of the High Court on the ground that the adoption was valid following Amarendra Man Singh's case (1933) 65 M.L.J. 203 :L.R. 60 I.A. 242 :I.L.R. 12 Pat. 642 (P.C.). As a necessary consequence. their Lordships held that in the presence of the adopted son Bhimsangji could not inherit the estate. In order to understand the scope of this decision it must be noted that Bhimsangji claimed to succeed to the property by right of inheritance and not as a member of a joint family and the whole case proceeded on the assumption that Bhimsangji was a separated member of the family of Chatrasingji. (Vide the observations of the learned Judges of the Bombay High Court in Bai Kesharba V/s. Shivsangji (1932) I.L.R. 56 Bom. 619 at pp:. 628 and 629).. In both these cases the adoption was not to the last male owner but to the latter's father by his widow and the adopted son was entitled to divest the estate which vested in the heir of the son.. This can only be justified on the ground that the adopted, son as the father's son of the last male owner must be deemed to have been in existence on the date of the father's death and therefore on the son's death would have succeeded as the coparcener of the son in preference to a collateral heir of the son. Both these decisions therefore proceed on the principle that an adopted son for purposes of inheritance to property in the family of his adoptive father occupies the same position as a posthumous son. Their Lordships were not enunciating any new principle but were only re-affirming what they gave expression to in some of the earlier cases. As early as Jatindra Mohan Tagore V/s. Ganendra Mohan Tagore and Ganendra Mohan Tagore V. Jatindra Mohan Tagore (1872) 9 Beng. L.R. 377 at p. 397 (P.C.) Willes, J. in dealing with the rights of an adopted son observed thus: In contemplation of law, such child is begotten by the father who adopts him, or for and on behalf of whom he is adopted. Such child may be provided for as a person whom the law recognizes as in existence at the death of the testator, or to whom, by way of exception, not by way of rule, it gives the capacity of Meriting, or otherwise taking from the testator, as if he had existed at the time of the testator's death having been actually begotten by him. This fiction of posthumous son is very clearly brought out by their Lordships of the Privy Council in Pratapsingh Shivsingh V/s. Agarsingh, Rajasangji (1918) 36 M.L.J. 511 : L.R. 46 I.A. 97 : I.L.R 43 Bom. 778 (P.C.). In that case a jivai grant was carved out of an impartible estate and given to a junior member of the family for maintenance to be held and enjoyed, as long as the grantee's male line lasted. The last male holder died in October, 1903, leaving a widow but no male issue. On 12 March, 1904 she purported to adopt a boy as heir to her husband. Thereupon the then holder of the impartible estate instituted a suit to recover the property from the adopted son on the ground that the property having reverted to him the adaption was invalid. The High Court gave a decree in his favour but it was reversed by their Lordships of the Privy Council who held that it did not revert to the holder of the impartible estate but was inherited by the adopted son. In the course of the judgment Mr. Ameer Ali made the following observations at page 794: It was contended with considerable force and some degree of plausibility that in the case of Jivai grant on the death of the holder thereof there is no property left for the adopted son to take, as it reverts to the grantor's estate immediately the jivaidar dies. But it was admitted that a posthumous son would prevent the reversion. If the widow happened to be enceinte the reversion naturally would remain in suspense until the birth of the child, to see whether it was a male or a female. It is futile, therefore, to say that the property reverts to the grantor's estate immediately the breath leaves the body of the jivaidar. Here the adoption was made within the period of natural gestation, and the property was at the time of the adoption in the possession of the widow and still is in the possession of the adopted son. The use of the language within the period of natural gestation is very significant as suggesting that the adopted son would be in the position of a posthumous son. The expression natural period of gestation was used in that case because the adoption was made within five months after the death of the last male holder., No doubt in that particular case it was within that period but there can be no doubt as to what his Lordship meant, vis:, that the adopted son is for the purpose of inheritance in the adoptive family in the same position as a posthumous son to whom reference was made earlier. As a logical consequence of this principle, the adopted son has been held to divest the estate of his adoptive mother if the property devolved on, her on the death of her husband or the estate of a collateral heir of his father in whom the latter's estate vested on the death of his father or the interest of his father which has on his death lapsed to his surviving coparcener whoever he be a brother or a father or a grandfather. That the Privy Council limited the fiction of a posthumous son only to the case of an adopted son inheriting or taking the father's estate is clear from another principle they laid down in Bhubaneswari Debi V/s. Nilcomul Lahiri (1885) L.R. 12 I.A. 137 : I.L.R. 12 Cal. 18 (P.C.) that is, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral, i.e., as an heir to the property Which was not his father's property. In regard to the property - inherited or interest taken, the Privy Council also imposed a limit to the operation of this fiction. In Krishnamurthi Aiyar V/s. Krishnamurthi Aiyar (1927) 53 M.L.J. 57 : L.E. 54 I.A. 248 : I.L.R. 50 Mad. 508 (P.C.) Viscount Dunedin laid down the following principle at page 525: 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. No doubt in that case the disposition was by the adoptive father himself. The said principle would apply to the case of every disposition made by a male holder of the estate who in the absence of an adopted son was entitled to it. This is clear from an early decision of the Privy Council in S.V.P. Raghunada Deo Vs. S. B. K. Patta Deo (1876) L.R. 3 I.A. 154 : I.L.R. 1 Mad. 69 (P.C.) where on the death of an elder, brother in an undivided family the estate which was impartible devolved on the younger brother but two years later the widow of the elder brother made an adoption which had the effect of defeating the younger brother to the estate; the Privy Council held that until the adoption the younger brother was entitled to the estate and that no claim for profits could be made against him until the adoption. It is by the application of this principle our High Court held that where a father and son constituted members of an undivided family and the son died leaving a widow giving power to adopt but before the adoption could be made, the father settled all the property on his daughter, the settlement was valid. (Vide Veeranna V/s. Sayamma (1928) 56 M.L.J. 401 : I.L.R. 52 Mad. 398). So far as the husband's estate vested in his widow is concerned, it was laid down so early as Bamundoss Mookerjea V/s. Mussamut Tarinee (1858) 7 M.I.A. 169 that the property is in the widow from the death of her husband till the power of adoption is exercised and that any alienation,, made. by her would be binding on the adopted son if it was for strict necessity. The principle deducible from these decisions is that though the title of the adopted son dates back to the death of the adoptive father for inheriting or taking his adoptive father's estate, he takes the estate subject to the dispositions made within the competency of the person who was entitled to hold the said estate until his adoption.

(3.) In the light of these principles the question in issue has to be approached. If the true position of the adopted son is that he must be deemed to be a posthumous soil for the purpose of inheritance as if he existed on the date of the death of the adoptive father, a partition made by the coparceners of his father before adoption should have to be reopened and that was the view expressed in the decision in Krishna V/s. Sami (1885) I.L.R. 9 Mad. 64 (F.B.). In the course of the judgment in that case, Turner, C.J., made the following observations at page 78: Let C have died before partition, leaving a. widow and having given her power to adopt which she does not exercise till after a partition has been made by B, D and E. When she exercises her power we apprehend that the adopted son would be entitled to call upon his uncles to make over to him a portion of the wealth equal to that which would have been taken by his father. The reason given is thus stated towards the end of the judgment: "The existence of a valid power creates a potentiality of inheritance, which may be likened to that of a son in the womb". No doubt the observation is obiter and not necessary for the decision of that case but nevertheless being the opinion expressed by five learned Judges, it is entitled to the greatest weight. But the Bombay High Court has dissented from this view in more than one of their decisions. In Irappa Lokappa V/s. Rachayya Madivalayya I.L.R. (1940) Bom. 42, the father and son who were the only members of a Hindu coparcenary divided the family property between themselves and thereafter the widow of a predeceased undivided brother of the father adopted the plaintiff. It was held that though the adoption might be valid he could not recover any share of the property which had already been partitioned before his adoption. Wadia, J., after citing the observations made in Baht Sakharam V/s. Lahoo Sambhaji I.L.R. (1937) Bom. 508 (F.B.), namely, Where a coparcenary exists at the date of the adoption, the adopted son becomes a member of the coparcenary, and takes his share in the joint property accordingly.... But..where the adoption takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener, has not the effect of reviving the coparcenary, and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her. observed thus at page 46: In principle I am unable to see any distinction between the extinction of a coparcenary by the death of the last surviving coparcener and its extinction by partition, so far as the rights of an adopted son adopted after the extinction of the coparcenary are concerned. The effect of a partition is to dissolve a coparcenary, with the result that the separating members hold their respective shares as their separate property after the partition. In Hirachand Gangji V/s. Sojpal I.L.R. (1939) Bom. 512- it was held by Mr. Justice Rangnekar, sitting singly that under Hindu law, on the extinction of a coparcenary by a partition, the widow of a coparcener., who had died long before the partition, cannot make a valid adoption .