RAMCHANDRA BALAJI Vs. SHANKAR APPARAO

JUDGEMENT

(1.) This Letters Patent Appeal against the decision of N.J. Wadia J. raises an important question of Hindu law which was regarded in this Province as settled by the full bench ruling in Balu Sakharam V/s. Lahoo Sambhaji [1937] Bom. 508 : S.C. 39 Bom. L.R. 382 and a series of other rulings which followed it.

(2.) The facts are simple and undisputed. One Ramchandra Devji died in 1900 possessed of the lands in suit and the right to kulkarniki watan service in four villages. He left behind him two sons Apparao alias Gururao and Balaji. Before Apparao's name was entered in the Kulkarniki Pali Register after his father's death, he died issueless in 1904 leaving behind him his widow Bhagubai defendant No. 4. The name of Apparao's brother Balaji was then entered in the Pali Register for the kulkarniki service. Balaji adopted Ramehandra defendant No. 1 in 1919 and in 1920 he passed in his favour a deed of relinquishment in respect of both his immoveable property and the kulkarniki watan rights in the four villages. Ramchandra's name was then substituted for that of Balaji in the Pali Register by the Collector. Under the deed of relinquishment Balaji transferred all the family property to Ramehandra, defendant No. 1, on receiving from him Rs. 1,500 for his maintenance. Balaji died in 1923 and many years after that, on May 25, 1936, Apparao's widow Bhagubai took the plaintiff in adoption and the plaintiff filed this suit in 1937 against defendant No. 1 and his two sons defendants Nos. 2 and 3 asking for a partition and possession of his half share in the family property and for a declaration that he was the owner of the sixteen annas kulkarniki right of service in the said four villages and that he was " the nearer heir than defendant No. 1 for his name being entered in the Pali Register." The defendants contended that the effect of the deed of relinquishment passed by Balaji to defendant No. 1 in 1920 was to bring about a partition between them with the result that the coparcenary came to an end and that the subsequent adoption of the plaintiff by Apparao's widow, though valid, would give the plaintiff no right either to the immoveable property or to the right of service which had already become the separate property of defendant No. 1 long before the plaintiff's adoption. They also contended that the plaintiff was not entitled to the declaration claimed by him. The trial Court upheld both these contentions and dismissed the suit with costs. In appeal the learned District Judge took a different view and held that the deed of relinquishment did not effect a partition between Balaji and defendant No. 1 and that the coparcenary did not terminate as a result of the execution of that deed. He, therefore, found that defendant No. 1 continued to be the sole surviving member of the joint family and, therefore, not only was the plaintiff's adoption valid, but it entitled him to claim a half share in the property of the family in the hands of defendant No. 1. He also held that the plaintiff was entitled by the rule of primogeniture to have his name entered in the watan register in preference to defendant No. 1 in respect of the kulkarniki service in the four villages. Although the prayer clause in the plaint did not specify to whom the plaintiff claimed to be declared the nearer heir, the learned District Judge thought that he wanted a declaration that he was the nearest heir to the deceased representative watandar Ramchandra Devji, his grandfather. A decree for partition and a declaration to that effect were granted to the plaintiff and the decree was confirmed in second appeal.

(3.) In upholding the decree of the learned District Judge Wadia J. had to decide whether the deed of relinquishment effected a partition between Balaji and his son, since in view of various rulings of this Court it was fairly conceded by Mr. Madbhavi for the plaintiff-respondent that if as a result of that deed, there was a separation, between Balaji and defendant No. 1, the plaintiff's suit must fail, at least as regards the immoveable property. In Balu Sakharam v. Lahoo Sambhaji a full bench of this Court held that where a Hindu coparcenary had come to an end on the death of the last surviving coparcener and the family property had vested in his heir, a subsequent adoption by the widow of a predeceased coparcener was valid, but it did not revive the coparcenary and did not vest the coparcenary in the adopted son to the exclusion of the heir of the last holder, other than the widow herself. In Bammangouda Shankargouda V/s. Shankargouda Rangengouda the principle laid down by this ruling was extended to every case in which a coparcenary had come to an end, whether by the death of the last surviving coparcener or by a partition or by a severance of status. In Hirachand v. Rowji Sojpal (1938) 41 Bom. L.R. 760 Rangnekar J. considered the whole law on the subject at length and took the same view. That ruling was followed by N.J. Wadia and Wassoodew JJ. in Irappa Lokappa V/s. Rachayya Madiwalayya , in which the facts were quite similar to those in the present case. One of two undivided brothers died leaving his widow behind him. The other brother had a son, and they made a partition of the family property between themselves. The widow of the predeceased brother then adopted the plaintiff and it was held that the adoption, though valid, did not give the plaintiff any right to the property, since the coparcenary had come to an end on the partition between the surviving brother and his son. It follows from this that if the deed of relinquishment passed by Balaji to defendant No. 1 effected a partition between them, the plaintiff's adoption, though valid, could not confer upon him any right to the property already vested in defendant No. 1. A contrary view was taken by a full bench of the Madras High Court in Sankaralingam V/s. Veluchami [1943] Mad. 309 F.B., and by the Nagpur High Court in Bajirao V/s. Ramkrishna [1941] Nag. 707. This conflict of views has now been set at rest by the ruling of the Privy Council in Anant Bhikappa Patil V/s. Shankar Ramchmdra Patil (1943) 46 Bom. L.R. 1 P.C. It expressly overruled Balu Sakharam V/s. Lahoo Sambhaji and approved of the decision of the Nagpur High Court in Bajirao V/s. Ramkrishna. In the Privy Council case one Keshav had succeeded to certain watan property on the death of his father in 1905 and to certain other property on the death of his separated uncle Narayan in 1908. Keshav died issueless in 1917 and under Bombay Act V of 1886 his watan property devolved upon his distant separated cousin Shankar in preference to his mother Gangabai. Then in 1930 Gangabai took the plaintiff Anant in adoption and he sued Shankar to recover the watan property from him. When the case came in appeal before this Court, Rangnekar and N.J. Wadia JJ., following the ruling in Balu Sakharam V/s. Lahoo Sambhaji, held that the adoption was valid, but the plaintiff could not divest Shankar of the watan property which had already vested in him on the death of Keshav. But the Privy Council held that by his adoption Anant was constituted as the next heir of Keshav and, therefore, the effect of the adoption was to take the watan lands out of the hands of Shankar who was more remote than Anant and pass them to Anant. Their Lordships relied upon the following passage from the judgment in the Nagpur case cited above (p. 718); We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member.