1. This appeal raises an interesting question as to the rights of a Hindu son in his natural family on his adoption. One Fakira Shravan mortgaged certain lands to defendant 1 on 18th April 1925, and he was given in adoption on 9th December 1927. Defendant 1 obtained a decree on his mortgage in special Suit No. 987 of 1931 against Fakira and in execution proceedings defendant 1 purchased the property. Bahinabai then filed a suit from which this appeal arises for a declaration that the decree passed in the mortgage suit was not binding on her and that she was entitled to the mortgaged property and that defendant 1 had no right, title and interest in that property. Bahinabai's contention was that on Fakira's adoption the equity of redemption in the mortgaged property was divestad from Fakira and became vested in her, and as she was not a party to the suit, the mortgage decree could not be binding on her; and the question that arises for our determination is whether on the adoption of Fakira the equity of redemption became divested. Now, this property came to Fakira on a partition made between the grandfather and his two uncles, his own father being dead; and therefore when he mortgaged the property and when he was adopted, he owned this property absolutely as having been given to him on partition. Now, the result of an adoption is that a Hindu as it were dies a civil death in his natural family and is re-born in the family of his adoption, and the question has been considerably agitated in the different High Courts in India as to what is the effect from the point of view of a Hindu who is adopted. The Madras and the Calcutta High Courts have taken the view that the property which already vested in the adopted son does not get divested by his adoption. It is only his future rights in the natural family and his rights to inherit his father that are lost to him on his leaving his natural family and going to the family of adoption. Our High Court has taken a different view, and the views of all the High Courts are based on a text of Manu which Sir Dinshah Mulla translates in his Treatise on Hindu Law at page 568, and the text is this: 'An adopted son shall never take the family (name) and the estate of his natural father.' Therefore, it is the estate of his natural father that the adopted son is prohibited and precluded from taking. Now, one should have thought that a share in a joint Hindu family could never be described by the designation of an estate, and therefore if a Hindu by survivorship gets the property which both he and his father were entitled to in the joint family, it would not be possible to speak of that share as having been inherited by the adopted son from the estate of his father. But it is too late in the day to contend for that view because this Court in a series of decisions has taken the view that if a sole surviving coparcener is adopted, then the property vested in him as such coparcener gets divested: see Dattatraya Sakharam v. Govind Sambhaji 40 Bom. 429: : AIR1916Bom210 , Manikbai v. Gokuldas 49 Bom. 520 : : AIR1926Bom363 and Bai Kesharba v. Shivsangji 56 Bom. 619: A. I. R. 1932 Bom. 654. But the case we are considering is not a case of the adopted son becoming entitled to the property in suit by survivorship as the sole surviving coparcener. Fakira got the property, as I have stated earlier, on partition, and our High Court has decided in Mahableshwar Narayan v. Subramanya Shivram 47 Bom. 542: A. I. R. 1923 Bom. 297 that a share coming to a Hindu on partition belongs absolutely to him, and on his being adopted, such a share does not become divested. Sir Norman Macleod, in delivering the judgment of the Court, says this (p. 546):
'In the present case defendant 1 had an absolute right to the share in the family property which had come to him on partition. He could have disposed of it so long as his right of disposition was not fettered by a son being born to him.' Then Sir Norman Macleod distinguishes this position from the position arising on a Hindu acquiring property by survivorship and becoming the sole surviving coparcener. This is what the learned Chief Justice says (p. 546):'It might be said that the rights of disposition possessed by the sole surviving member of the joint family would be the same until a son was born to him, but the origin of his title to the property would be of a different character, since nothing would have been done to put an end to the existence of the joint family.'
What the learned Chief Justice emphasizes here is the disruption of the joint family. If the joint family is not disrupted, then even though the adopted son is the sole surviving coparcener, the property is divested. But if the joint family is disrupted and the adopted son gets some property on partition, then the property which he gets is not divested on his being adopted. Now, Mr. Pradhan has tried to distinguish this case by pointing out that Sir Norman Macleod was dealing with a case where the partition was between a father and son and in the case we are considering the partition is between a grand father and his sons and grandson. It is difficult to understand what is the distinction in principle. Mr. Pradhan puts it this way. He says that Fakira on partition got from his grandfather the share which his father would have got if his father had been alive and therefore he represents his father and the case would come within the principle of the three decisions, namely, Dattatraya Sakharam v. Govind Sambhaji 40 Bom. 429: : AIR1916Bom210 , Manikbai v. Gokuldas 49 Bom. L. R. 520: A. I. R. 1925 Bom. 363 and Bai Kesharba v. Shivsangji 56 Bom. 619: A. I. R. 1932 Bom. 654. Now, to my mind it is fallacious to suggest that Fakira got his share on partition as the representative of his father or that his right to get the share depended upon his father. Fakira's right in the joint family property originated from his birth and independently of his father he had a right in the joint family property. When the partition took place, he got a particular share because of the death of his father. He did not get the share through his father nor did his claim arise through his father. His claim was independent, but the particular share which he got was determined by the fact of his father's death and therefore it is not true to say that the share which Fakira got was a share which he claimed through his father. I see no reason why we should further extend the principle of divesting on the adoption of a Hindu as laid down in the three Bombay cases to which I have referred. As this is a case of partition and the only decision we have of this Court: Mahableshwar Narayan v. Subramanya Shivram 47 Bom. 542: A. I. R. 1923 Bom. 297 clearly lays down that property acquired on partition does not get divested on adoption, I think we should follow the last mentioned decision. In nay opinion this case falls within the ratio of the case reported in Mahableshwar Narayan's case 47 Bom. 542: A. I. R. 1923 Bom. 297. Therefore, the learned Judge was right in dismissing the suit.
2. The appeal fails and must be dismissed with coats.