MAHABLESHWAR NARAYANBHAT DEVTE Vs. SUBRAMANYA SHIVRAM JOSHI

JUDGEMENT

(1.) A joint Hindu family consisted of one Shiv-ram Joshi, his three sons, Hahabaleshwar, Ganpati and Venkatraman by his first wife, and one son Subramanya by his second wife. In 1904 there was separation of the family and partition of the family property, the father and his four sons each taking one-fifth of the family property. Mahabaleshwar, the present first defendant, after partition, was in 1907 given in adoption by his father to one Narayan Bhatta Devte. He thereby became a member of his new family. Shivram Joshi died leaving a will dated September 28, 1907, wherein he stated that he was not quite confident as to whether he could own the entire property which had been acquired by partition by the first defendant or only one-fourth share. If he owned the whole he left it in equal shares to Subramanya and Ganpati. If he only had a share he left it all to Subramanya. Subramanya then brought this suit seeking to recover from the first defendant the share which was given to him by his father's will in the property originally acquired by the first defendant on the partition. The suit has been decreed in both Courts on the ground that the decision in Dattatraya Sakharam v. Govind Sambhajia (1916) I.L.R. 40 Bom. 429 : 18 B.m. L. R. 258. was conclusive on the point.

(2.) In order to see whether the decision in that case applies, it is necessary to ascertain the facts. One Mahadev and his brother Sambhaji were divided in interest. Mahadev died more than twenty years before the suit, leaving a widow Parvatibai, a son Ramchandra, and daughters. After Mahadev's death Ramchan- dra was given in adoption to a different family at Gwalior, and the properties in suit, which were originally assigned to the share of Mahadev and which were vested in Ramchandra alone after Mahadev's death, were mortgaged by Parvatibai in 1909 to one Dattatraya, long after Ramchandra's adoption. The mortgagee filed a suit to enforce the mortgage. The opponents were the sons of the divided brother of Mahadev and the heirs of Parvatibai. The plaintiff's claim was contested on the ground that the property being vested in Ramohandra at the time of his adoption remained vested in him even after he was given in adoption, and that Parvatibai had no right to mortgage the property as Ramcbandra was alive. Mr. Justice Shah in giving judgment at p. 433 said : The text of Manu (Adhyaya IX, verse 142) bearing on this point is dear. It is translated in Vol. XXV of the Sacred Books of the East, at page 355 as follows :- An adopted Bon shall never take the family (name) and the estate of his natural father; the funeral cake follows the family (name) and the estate, the funeral offerings of him who gives (his son in adoption) cease (as far as that son is concerned).

(3.) It was urged there by Mr. Shingne that there was no provision in the text for the divesting an estate once vested in a person, and that the person leaving the family of his birth could not be divested of property exclusively vested in him before adoption. But the learned Judge thought that that argument ignored the essential idea of an adoption. He said: There is a change in the position of the boy, and this divesting of the estate of the natural father is an incident, and, in my opinion, a necessary incident, of that change. The boy given in adoption gives up the rights, which may be vested in him by birth, to the property of his natural father, if the adoption takes place in his father's lifetime. To that extent the rights vested in him are divested after adoption. If the divesting of a vested interest so far is to be allowed, I do not see any difficulty in holding that even if the estate of the natural father be wholly vested in the boy before adoption, he is divested of it when he is given in adoption.