1. This is an appeal against a decree of the Civil Judge, Senior Division, Satara, in Special Suit no. 6 of 1946. The plaintiff, as an adopted son of one Baburao, filed the suit for possession of items Nos. 1 to 18 as described in Schedule A annexed to the plaint, and for recovery of mesne profits for three years prior to the date of the suit at the rate of RS. 245 per annum and for future mesne profits at the rate of Rs. 400 per annum from the defendants. The learned trial Judge has passed a decree in his favour awarding him possession of lots Nos. 1 to 18 and Rs. 645 by way of mesne profits for three years prior to the date of the suit have been awarded against defendants 1 and 2, Rs. 90 against defendants 3 and 4, and future mesne profits at the rate of Rs. 350 from defendants 1 and 2 and Rs. 60 from defendants 3 and 4. Mesne profits after the date of the decree are ordered to be ascertained under Order 20, Rule 12, Clause (c), Civil P. C. It is against this decree that defendants l and 2 have come in appeal.
2. One Hanmant died on 9-10-1907. He had two sons and one daughter by name Dhondubai. He had a wife by name Bayaja. Babu, the eldest son of Hanmant, was the first to die on 28-9-1907 After him Hanmant died on 9.10.1907, and about a month thereafter Anna, the second son of Hanmant, died on 8-11-1907. Babu died leaving him surviving his widow Bhagirthi, who is defendant 5 in the present litigation. Hanmant's widow Bayaja survived him. Anna died unmarried. Bayaja died on 11-4-1910. On the death of Bayaja, Dhondubai the daughter of Hanmant became the owner of the property by inheritance to Anna, who was the last male holder. After the death of Bayaja, suit No. 2782 of 1910 was filed by Bhagirthi on 29-10-1910, against Dhondubai contending that her husband Baburao was the last male holder of the properties in the possession of Dhondubai and accordingly she (Bhagirthi) was heir to the property last by Baburao and that Dhondubai had no right or interest in the property. During the pendency of that suit Bhagirthi and Dhondubai arrived at a compromise, which was recorded as a consent decree on 12-6-1912, whereby Bhagirthi was given lots NOS. 1 to 8 and 17 and 18 in the present suit and three other properties which are referred to in the present suit as lots NOS. 19 and 20 and a half share of lot No. 21. The remaining properties, that is, lots Nos. 9 to 16 and a half share of lot No. 21 remained with Dhondubai. On 21-6-1912, Bhagirthi sold to defendant 8 lots Nos. 17 and 18 of the properties which she bad acquired under the consent decree. On 13-3-1918, Bhagirthi sold to Dhondubai for a sum of Rs. 1000 lots NOS. 1 to 8 and 19 and 20 and a half share of lot no. 21. On the same day Dhondubai sold the properties purchased by her from Bhagirthi to Pandu, the father of defendant 1. Defendants 1 and 2 have become the owners of those properties sold by Dhondubai on the death of Pandu. As a result of the alienations Bhagirthi did not retain any interest in the properties of Anna which she acquired under the consent decree. Defendants 1 and 2 became the owners of lots Nos. 1 to 8 and 10 to 19 and 20 and a half share in lot no. 21 under the sale deed dated 13-3-1913, executed in their favour by Dhondubai.
3. On 23-6-1938, Bhagirtbi, the widow of Babu, adopted the plaintiff Mahadu as a son to her deceased husband. Dhondubai died thereafter on 16-10-1938, and the properties which she had inherited from Anna and had remained undisposed of were claimed by defendant 3 Dhoudubai's daughter as an heir. The plaintiff Mahadu thereafter filed the present suit against defendants 1 and 2, daughter's son and daughter respectively of Dhondubai for possession of Anna's properties, i. e., lots Nos. 1 to 16, and against defendants 3 and 4 as the alienees of lots Nos. 17 and 18. Bhagirthi was impleaded as defendant 6. It was the case of the plaintiff that properties lots Nos. 19 and 20 were watan properties and were in his possession at the date of the suit, as the watandar. It is his case also that property lot No. 21 was in his possession and therefore he did not make any claim against the defendants in that respect. The learned Judge in the Court below granted a decree in favour of the plaintiff for possession of lots NOS. 1 to 18 on the ground that whatever may have been the result of the litigation between Dhondubai and Bhagirthi, the decree passed in that litigation did not bind the plaintiff. He held that the plaintiff was entitled to obtain possession of the properties of Anna which had devolved upon Dhondubai and that he was not bound by any alienation which may have been effected by Dhondubai.
4. It is urged by Dr. Kane on behalf of defendants 1 and 2 that the plaintiff is not entitled to divest the estate which was already vested in them, either as transferees from Dhondubai or as heirs of Dhondubai. It is urged that even though the plaintiff's adoption was valid, the plaintiff was not entitled to obtain possession of the properties in suit, especially properties lots NOS. 1 to 16 which were in the possession of the appellants, inasmuch as the property had devolved upon Dhondubai as an heir of Anna, the last male holder, and the subsequent adoption of the plaintiff which had the effect only of introducing a nearer heir to Anna would not in law be sufficient to divest the estate vested in them. Reliance was placed upon a decision of their Lordships of the Privy Council in Bhubaneswari Debi v. Nilkomul Lahiri 12 I. A. 137 : 12 Cal. 18 and a decision of a Full Bench of this Court in Jivaji Annaji v. Hanmant Ramchandra, : AIR1950Bom360 (FB). It was further urged by Dr. Kane that, even if the plaintiff acquired rights to the property of Anna as a coparcener in the joint family, by reason of his adoption by Bhagirthi, he was not entitled to divest defendants 1 and 2 of the properties sold by Dhondubai to them on 13-3-1918. Defendants 3 and 4, who are alienees in respect of lots Nos. 17 and 18, have not preferred any appeal against the decree of the trial Court, but Mr. Pochaji Jamsedji on behalf of defendant 4 has contended that if the decree of the trial Court was to be set aside on either of the grounds urged by Dr. Kane, his clients should be given the benefit of the reversal of the decree, even though no appeal has been preferred against the decree of the trial Court by his clients.
5. Now out of the properties in suit lots Nos. 1 to 14 are non-watan or rayatwari lants, whereas Iota NOS. 15 to 13 are watan lands governed by the provisions of the Bombay Hereditary Offices Act. Lots Nos. 19 and 20, of which the plaintiff claimed to be in possession at the date of the suit, are also watan lands. Lot no. 21 is a residential house, half of which fell under the terms of the compromise decree dated 22-6-1912, to the share of Dhondubai and the other half fell to the share of Bhagirthi, and Dhondubai under the sale-deed dated 13-3 1918, sold her half share in lot No. 21 to defendants 1 and 2.
6. On the finding of the trial Court, which has not been challenged before us, Anna was the last surviving coparcener of the joint family which originally consisted of Hanmant and his two sons. On Anna's death the properties held by him devolved upon Bayaja his mother as his heir. It is stated that four days before her death Bayaja relinquished her interest in the property in favour of Dhondubai, and Dhondubai became entitled to the properties by reason of the relinquishment. It was urged that the properties having been relinquished by Bayaja in favour of Dhondubai there was an alienation by Bayaja for a lawful purpose and consequently Dhondubai acquired an indefeasible title to the property and it was not liable to be defeated by reason of a subsequent adoption by a widow of the joint family to which Anna the last male holder, belonged. In our view the only effect of the relinquishment was to accelerate the estate which Dhondubai would have obtained on Bayaja's death. It was not, strictly speaking, an alienation of the estate by Bayaja but a voluntary act of extinction of her own estate. Consequently, the relinquishment would not have the effect of bringing the present case within the rule that where an heir to the estate of a sole surviving coparcener has alienated property for a lawful purpose, the alienee acquires an indefeasible title and is entitled to retain the property contrary to the claim of an adopted son by a widow of the joint family.
7. It was farther urged that under the Hindu law as well as under other systems of law an estate never remains in abeyance ; and on the death of Anna if the property vested in Bayaja for a Hindu widow's estate, and after her death, civil or natural, the property devolved upon Dhondubai as the heir of Anna, the adoption of the plaintiff by Bhagirthi had not the effect of taking the property away from Dhondubai and vesting it in the plaintiff. It was argued that the property having vested in Dhondubai when the succession opened, the subsequent adoption of the plaintiff which had the effect of bringing into existence an heir of Anna nearer in degree to Dhondubai did not have the effect of reopening succession to Anna. The heirs, it was contended, must be ascertained as at the death of Anna, and the ascertainment of heirs on the death of Anna could not be postponed during the lifetime of Bhagirthi who was entitled to adopt but who had not adopted during the lifetime of Anna or even during the lifetime of Bayaja. In support of these contentions reliance is placed upon Bhubaneswari Debi v. Nilkomul Lahiri 12 I. A. 137 : 12 Cal. 18 and the decision of this Court in Jivaji Annaji v. Hanmant Ramchandra : AIR1950Bom360 , Now the submission made by Dr. Kane proceeds upon the assumption that the right of the plaintiff to the estate arose for the first time on his adoption on 23-6-1038. It is now well settled that a son adopted by a Hindu widow acquires an interest in the estate to which his adoptive father was entitled not from the date of his adoption but his adoption relates back to the date of the death of his adoptive father and he is entitled to claim that estate, subject to all lawful alienations effected since the death of the adoptive father and before the date of his adoption. The estate in the hands of the last or the sole surviving coparcener was subject to an incident that his interest was liable to be divested by reason of an adoption by a widow of the family, and that incident continued to attach to the property even after the property had devolved upon the heir of the last male bolder. As stated by their Lordships of the Privy Council in Anant Bhikappa v. Shankar Ramchandra :
'Kashav's right to deal with the property as his own would not be impaired by the mere possibility of an adoption (See Veeranna v. Sayamma 52 Mad. 398 : A.I.R. 1929 Mad. 296. But in his lifetime adoption by the widow of a collateral coparcener would have divested him of part of his interest, and the same right to adopt subsisting after his death must, in their Lordships' view, have qualified the interest which would pass by inheritance from him.'
The case in Anant Bhikappa v. Shankar Ramchandra to which I have referred, was a case in which one Keshav, son of Bhikappa was the last male owner of certain property, which included watan property. Keshav was the sole surviving coparcener of the joint family to which he belonged. He was also possessed of two items of property which he bad inherited from his uncle Narayan. Keshav died in the year 1917, and thereafter his mother Gangubai adopted Anant, the plaintiff, in the year 1930. In the meanwhile the properties of Keshav which were watan properties had devolved upon Shankar, a distant agnatic relation of Keshav. Anant on his adoption by Gangubai claimed to be a brother of Keshav and as such entitled to the properties which were of the ownership of Keshav at the time of his death. Their Lordships of the Privy Council held that Anant was entitled to all properties--joint family as well as separate--of Keshav. In our opinion, the present case would, subject to certain exceptions, which will be hereafter mentioned, be governed by the principle of the decision in Anant Bhikappa v. Shankar Ramchandra . Bhagirthi was a widow of the joint family to which Anna belonged and of which Anna was the sole surviving coparcener. On the succession opening to the estate of Anna the property devolved upon Dbondubai. But so long as Bhagirthi, a widow of the joint family to which Anna belonged, was alive, Dhondubai's estate was liable to be defeated by an adoption by Bhagirthi, Their Lordships of the Privy Council in Anant Bhikappa v. Shankar Ramchandra approved of the view of the Nagpur High Court in Bajirao v. Ramkrishna to the following effect (p. 717):
'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 brings in a new male member.'
In the present case Bhagirthi was, to use the expression used by their Lordships of the Nagpur High Court, 'a potential mother' and in the way of law entitled to introduce a new male member in the family, and she did so introduce the plaintiff as an adopted son in the family. The plaintiff's right to represent the family commenced as from the date of his adoptive father's death subject to lawful alienations effected by the holders of the property for the time being before the date of his adoption.
8. The case in Bhubaneswari Debi v. Nil-komul Lahiri 12 I. A. 137 : 12 Cal 18 was a case from Bengal. There were three brothers by name Rammohan, Kalimohan and Shibnath. Rammohan died leaving a widow Chandmoni, his brother Kalinath and his brother Shibnath. Nilkomul was the son of Kalimohan and Bhubaneswari was the wife of Shibuath. Shibaath died on 28-5-1861, leaving him surviving his widow Bhubaneswari, and Bhubaneawari adopted Jotindra Mohan in the year 1870. On the death of Rammohan his property devolved upon Chandmoni, and upon her death Nilkomul was the nearest heir to the estate, Kalimohan having died before Chandmoni. Jotindra Mohan claimed on his adoption a half share in the property left by Rammohan, on the ground, that by reason of his adoption he stood in the same degree of relation to Rammohan as Nilkomul, who had originally inherited the estate. Their Lordships of the Privy Council gave several seasons for rejecting the claim of Jotindra Mohan, and one of the reasons given was that the estate of a Hindu on his death vests in his nearest heir and does not remain in abeyance for a nearer heir to come into existence, who would be either able to take the property or to share it with other persons who were the heirs at the date when the succession opened. Their Lordships stated (p. 141) :
'According to law as laid down in decided cases, an adoption after the death of a collateral does not entitle the adopted son to coma in as heir of the collateral.'
The collateral who died was Rammohan and his estate had devolved upon Nilkomul and the subsequent adoption of Jotindra Mohan by Bhubaneswari as a son to Shibnath had not the effect of divesting, wholly or partially, the interest of Nilkomul. The case, however, would have no application to the facts of the present case. The property in the case before their Lordships of the Privy Council was separate property of Rammohan. There obviously was no widow of another coparcener in the joint family of which Rammohan was the last or the sole surviving coparcener, who could have on adoption introduced a new coparcener and who would have been entitled to continue the joint family. The facts of the Full Bench decision in Jivaji Annaji v. Hanmant Ramchandra : AIR1950Bom360 F. B. are practically the same as Bhubaneswari's case 12 I.a. 137: 12 Cal. 18 . One Kriahnappa had five sons, Keshav, Annappa, Bhimrao, Apparao and Madhav. After Krishnappa, Bhimrao and Apparao died as members of a joint family without leaving any lineal male descendants. The three surviving sons Keshav, Annappa and Madhav, divided the properties of the joint family amongst themselves. On Keshav's death his son Viahnu became entitled to Keshav's 1/3 share in the property. Annappa died in the year 1901 leaving him surviving his widow Tungabai. Madhav died in the year 1903. Thereafter Tungabai adopted Jivaji on 18fch July 1922. In the meanwhile Vishnu having died, hia properties devolved upon a distant kindred Hanmant. Hanmant there-after filed a suit against Jivaji, who had possessed himself of some of the properties of Vishnu. A question arose as to whether by reason of hia adoption Jivaji, who was admittedly a nearer heir to Vishnu than Hanmant, was entitled to retain the property with himself. The Full Bench took the view that as Keshav, Annappa and Madhav were separate, the succession to Vishnu's estate opened in the year 1918 and it could not await the subsequent adoption of Jivaji. It was pressed upon the Court that the principle of the decision in Anant v. Sfiankar , should be extended to include a case in which there had been a severance of the joint family before the last male member took his share of the estate, on the ground that it was a logical extension which their Lordships of the Privy Council accepted in relation to the separate property of Keshav, to which Anant in the Privy Council was held entitled. But that contention was negatived by the Full Bench, and it was held relying upon Bhubaneswart's case 12 I. A. 137:12 Cal 18 that the estate which wag once vested in a person as an heir to a collateral could not be divested by reason of the fact that a nearer heir has thereafter come into existence. The Full Bench decision proceeds upon the same ground on which the decision of their Lordships of the Privy Council in Bhubane&wan;'s case 12 I. A. 137:12 Gal. 18 proceeded, and could have no application to the facts of the present case. It must, therefore, be held that the plaintiff was entitled on his adoption to take all such properties as were in the hands of Dhondubai, subject, however, to such alienations as had been lawfully effected either by Anna or Bayaja or by Dhondubai.
9. This brings us to the second question which was argued by Dr. Kare, viz., that the alienees from Dhondubai were not liable to be directed by the plaintiff. He contends that an adoption even by a widow of a joint Hindu family after the death of a sole surviving coparcener has only the effect of terminating the estate of an heir who had inherited the property of a collateral but not so as to divest alienees, who held the property under lawful alienations. We are of the view that Dr. Katie's contention is correct. Dhondubai by reason of the consent decree parted with an interest in lots Nos. 1 to 8 and 17 to SO and part of Job No. 21 in favour of Bhagirtbi. She retained for herself lots Nos. 9 to 16 and half ehare in lot No. 21. Thereafter Bhagirthi reconveyed lots Nos. 1 to 8 and 19 and 20 and half share in lot No. 21 to Dhondubai on 13.3. 1918, and on the same day Dhondubai sold lots NOS. 1 to 8 and 19 and 20 and half share in lot No. 21 to defendants 1 and 2. Bhagirthi also sold lots NOS. 17 and 18 to defendant 3, and defendant 3 in his turn alienated that property in favour of defendant 4. In so far as defendants 1 and 2 held the properties as alienses from Dhondubai, their right prevails over the plaintiff's right. Mr. Desai urged that the contention of Dr. Kane cannot be accepted in the present case inasmuch as under the consent decree what was conferred upon Bhagirthibai was a mere life interest in lots Nos. 1 to 8, 17 to 20 and a half share in lot No. 21, and under the sale deed effected by Bhagirthibai nothing more than that life interest could be reconveyed to Dhondubai. But that contention, in our opinion, is not of any material consequence. Whatever estate was conferred upon Bhagirtbibai was reconvey-ed by her to Dhondubai under the sale deed of 1918. On the very same day Dhondubai parted with the entire interest that she had in the properties lots NOS. 1 to 8 and 19 and 20 and half share in lot No. 21 to defendants 1 and 2. If Bhagirthibai acquired an absolute interest under the consent decree as contended for by Dr. Kane, Dhondubai conveyed that absolute estate to defendants 1 and 2 as a transferee from Bhagirthibai. If, however, a mere life interest was conferred upon Bhagirthibai by reason of the consent decree as contended for by Mr. Desai, it was obvious that the reversion to the estate had remained with Dhondubai who was otherwise an absolute owner of the property, and when Dhondubai purchased the life interest (which she had conveyed) from Bhagirthibai the reversion and the life interest vested in Dhondubai and she was entitled to dispose of the entire estate in the property to defendants 1 and 2. Consequently, it is unnecessary to go into the question as to what interest was conferred upon Bhagirthibai by the consent decree. Dhondubai, according to the rule of Mitakshara applicable to the Bombay school, as a sister of Anna took the property absolutely; and as an absolute owner of the property she was entitled lawfully to dispose of that property in favour of any person. It is found that Dhondubai sold lots NOS. 1 to 8, 19 and 20 and half share of lot No. 21 to defendants 1 and 2. They acquired an estate which was not defeasible at the instance of a son adopted by a widow of the joint family to which Anna belonged. Consequently, the plaintiff is not entitled to obtain possession of the properties which were sold by Dhondubai to defendants 1 and 2, except of course those properties which by reason of their tenure were incapable of being transferred outside the watan family. In the present case no dispute arises about lots NOS. 19 and 20, which are admittedly watan properties and which the plaintiff claims, have been in his possession since before the date of the suit. The plaintiff has not claimed possession of lot No. 21 nor have the defendants in these proceedings claimed any relief in connection with it. It is stated that, that property is in the possession of defendant 5. What the rights of defendants 1 and 2 in that property are against defendant 5 need not be decided in the present litigation. Lots Nos. 9 to 16 remained in the possession of Dhondubai during her lifetime. On the adoption of the plaintiff on 23-6-1938, Dhondubai's right in these properties was extinguished as from that date, and the plaintiff was entitled to obtain possession of those properties from Dhondubai. Inheritance by defendants 1 and 2 as her heirs to Dhondubai who died after the adoption would not defeat the plaintiff's claim. The plaintiff would therefore be entitled to obtain possession of properties lots NOS. 9 to 16. As stated earlier defendants 3 and 4 who were the alienees of lots 17 and 18 have not preferred any appeal against the decree passed by the trial Court and the decree against them has become final. On that ground and on the ground that the properties lots NOS. 17 and 18 are watan properties and defendants 3 and 4 are not found to be the watandars of the same family as the family of Anna and the plaintiff, the plaintiff is entitled to possession of those properties.
10. Mr. Desai on behalf of the plaintiff has contended that Dhondubai being a female heir was not entitled to dispose of the property and that the rule that a lawful alienation by a collateral in whom the estate is vested after the death of the sole surviving coparcener prevails over the claim of an adopted son will not apply where the heir is a female. It is true that Dhondubai was a female heir but she was entitled to take the estate of Anna absolutely. If an alienation by a male heir in whom an estate is vested on the death of a sole surviving coparcener prevails over the claim of a son subsequently adopted by a widow of the family, it is difficult to see any ground for making a distinction where the heir is a female, but who according to the rules of inheritance is entitled to take and dispose of the property inherited by her absolutely. No principle is suggested by Mr. Desai which would justify the distinction. We do not think that any distinction can be made as contended for by Mr. Desai on behalf of the plaintiff on the sole ground that the heir to the estate of Anna was a female as an absolute owner.
11. The learned Judge has awarded mesne profits to the extent of Rs. 645 against defendants l and 2 for three years prior to the date of the suit, and he has awarded mesne profits at the rate Rs. 350, from the date of the suit till the date of the decree. Defendants 1 and 2 succeeded practically to the extent of half the principal amount. The mesne profits awarded by the Court will have to be modified by awarding to the plaintiff RS. 322-8-0 as mesne profits for three years prior to the date of the suit and at the rate of Rs. 175 up to the date of the decree of the trial Court. Mesne profits thereafter shall be ascertained under Order 20 Rule 12, Clause (c), Civil P. C., as directed by the Court below.
12. On the view that we have taken the decree of the trial Court will be modified by substituting in the place of the expression '1 to 18' the expression '9 to 18', in the place of the figure 'RS. 645' the figure 'RS. 822 8-0' and in the place of the figure 'Rs. 350' the figure 'RS. 175,' and for the word 'hereafter' occurring in line 8 of the decretal order the words 'from the date of the decree of the trial Court.'
13. The plaintiff and defendants 1 and 2 shall bear their own costs throughout. The other defendants shall bear their own costs.