RAMCHANDRA Vs. HARISCHANDRA

JUDGEMENT

(1.) 1. The appellant in this case, Ramghandra, and defendant 1 Harishchandra, were the sons of Raoji Kunbi. After Raoji's death there was, according to the finding of both the lower Courts, a partition between Bamchandra and Harishchandra. After the partition Ramohandra was taken in adoption by his uncle Bisram, and Harishchandra took possession of the property that had fallen to Ramchandra at the partition. On attaining majority Ramchandra brought the suit, out of which this appeal arises, to recover possession on the ground that the property had vested in him before the adoption and could not be divested by the adoption. The trial Court decreed Bamchandra's claim, but the lower appellate Court has reversed the decree and dismissed the suit.

(2.) THE first point I propose to deal with, is the contention raised on behalf of the respondents that the lower Courts finding as to partition having taken place is wrong. This finding is attacked on the ground that a document Ex. P-16, described as a farkat, is not registered, although it is a deed of partition and, having regard to the value of the property affected, is compulsorily registrable, and should not have been admitted in evidence. It is admitted that there was a division of property between Ramchandra and Harishchandra, but it is said to have been admitted in evidence. It is admitted that there was a division of property be ween Ramchandra and Harishchandra, but it is said to have been merely a family arrangement. There is however, adequate evidence, apart from Ex. P-16 to show that there was a partition and not merely a family arrangement; and even if the view is accepted that Ex. P-16 has been wrongly admitted in evidence I see no reason to differ from the finding of the lower Courts that Ramchandra and Harishchandra separated from each other.

(3.) SARKAR 's view of the effect of adoption after property had vested in the person. adopted was originally the same as that taken in Venkata Narasimha v. Rangayya Appa Row [1906] 29 Mad. 437. The theory subsequently held by him that adoption is tantamount to civil death and rebirth has been considered in the judicial decisions and text books referred to above, and has not, for reasons which appear to me to be sound, been accepted as an accurate guide as to the effect of adoption. It has been accepted by Mookerjee, J, in Birbhadra Nath v. Ralpataru Panda [1905] 1 C.L.J. 388., but I cannot find that it has been accepted elsewhere. In Dattatraya Sakharam v. Govind Sambhaji [1916] 10 Bom. 429, Shah, J., though he dissented from Venkata Narasimha Raw v. Rangayya Appa Row [1906] 29 Mad. 437, did not proceed upon the theory of civil death and rebirth. Nor is that theory, I think, adopted in Ramchandra v. Manubai [1919] 43 Bom. 774 though I note that that decision is referred to in Maroti v. Lax-man A.I.R. 1922 Nag. 16. as supporting the theory.