John Beaumont, Kt., C.J.
1. This is an appeal from a decision of the First Class Subordinate Judge of Dharwar. The facts are simple. The plaintiff claims as the adopted son of one Parappa. Parappa had a brother who was defendant No. 3's father, and they, as descendants of Basappa, were members of a joint family with the descendants of Basappa's brother Veerappa. Parappa died in 1923, leaving a widow who is defendant No. 6. In 1932 there was a partition between defendant No. 3 and the other branch of the family, that is, Veerappa's descendants. Defendant No. 3 took half the property, and Veerappa's descendants took the other half. In 1933 Parappa's widow adopted the plaintiff.
2. The question is what share (if any) in the family property the plaintiff' ia entitled to. The learned Judge held that he was entitled to one-fourth of the whole of the property which had been partitioned, except the houses. He held that the partition of the houses was fair, but that the partition of the rest of the property was not fair, and that although the fact of the partition was admitted, there ought to be a fresh partition of that part of the property in respect of which the partition was unfair. But in my opinion the plaintiff cannot challenge a partition effected before he was adopted. Defendant No. 3 at the time of the partition represented the branch of Basappa, and as he was and is satisfied with the partition, in my opinion the plaintiff cannot challenge it. I think therefore that the utmost which the plaintiff can claim is a share in the half share of the family property which defendant No. 3 took, and the question is whether a claim to that share is good.
3. Defendant No. 3 contends that the share which he took on partition is his absolute property, and that the adopted son of his father's brother takes no interest therein. Now if on the partition defendant No. 3 took a half share in his own right absolutely, I agree that the subsequently adopted son of his father's brother would not be entitled to share. But from the fact that the descendants of Veerappa remained joint as between themselves, and from the fact that defendant No. 3's share was on the partition made liable for the maintenance of Parappa's widow, I think the proper inference to be drawn is that defendant No. 3 took this half share as joint family property. He and the widow of Parappa were the only members of the joint family, and no doubt he was the sole coparcener. But in my opinion it is not accurate to say that the coparcenery had come to an end. I think the coparcenery still exists, in respect of the share which he took on the partition, and that on the birth of a son to him, that son would have a share in the coparcenery, and on the adoption of a son by his father's brother's widow, that adopted son is also entitled to share.
4. Mr. Murdeshwar relied on the decision of this Court in Balu Sakharam v. Lahoo (1936) 39 Bom. L. R. 382, F.B., as showing that, although the adoption of the plaintiff might be valid, he would not acquire any interest in the joint family property. But in that case the coparcenery had come to an end by the death of the last surviving coparcener, and this Court held that in that event the adoption although valid could not divest the property from the heir of the last coparcener. The actual proposition dealing with this subject, which the majority of the Court laid down, is (p. 414):-
That where the adoption takes place after the termination of the coparcenery by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenery, and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her.
The distinction between that case and the present one is that here the coparcenery had not come to an end by the death of the last surviving coparcener. The last surviving coparcener was still alive, and in my opinion the coparcenery must be taken as still alive, although there was only one coparcener. The adoption therefore of the plaintiff does not divest the estate from anybody. It merely lets him in as a member of the coparcenery.
5. That being so, I think that the order of the lower Court must be varied by directing that the plaintiff do recover one-half of the share of the joint family property taken by defendant No. 3 on the partition. Subject to that variation, the appeal fails.
6. The facts of this case have been fully stated in the judgment just delivered.
7. Mr. Murdeshwar for the appellants-defendants has challenged the decree of the lower Court on two principal grounds : First, that the case falls within the principle of the full bench ruling in Balu Sakharam v. Lahoo (1936) 39 Bom. L. R. 382, and, secondly, that, assuming that the adoption is valid, the adopted son could not question the validity or the terms of the partition effected between his deceased father's nephew and his coparceners, namely, his cousins.
8. With regard to the first ground, it seems to me that the case of Balu Sakha-ram v. Lahoo is distinguishable on the facts. The decision of the majority of the full bench was to the effect that where the adoption takes place after the termination of a Hindu coparcenery by the death, actually or fictionally, of the last surviving coparcener, and the family property has vested in his heir, the adoption by a widow of a predeceased coparcener though valid has not the effect of reviving the coparcenery, and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her. For the application of the rule in Balu's case not only has it to be established that the coparcenary has come to an end, but also that it has come to an end in a particular manner, that is, by the death of the only surviving coparcener with the result that the property has vested in the heir of the latter. The result cannot be the same where there is disruption of the joint family by agreement. In that event the family property is held in severally by the different members of the joint family. The interest remains vested in the same individuals but only in the parcels allotted to their shares so that several distinct estates are created of a different quantity. The result contemplated in Balu's case upon termination of the coparcenery by the death of the last surviving coparcener cannot be said to have been attained upon disruption by agreement. The possibility of reviving the coparcenery is not destroyed in the latter event. Upon authority there is a distinction between joint Hindu family and coparcenery. In that connection I would refer to the remarks of this Court in Commissioner of Income-tax v. Lakshminarayan : 3ITR367(Bom) . It does not, I think, follow from the fact of the partition that Basappa's grandson, defendant No. 3, ceased to be, along with the widow of his uncle, a member of a joint Hindu family. As Parappa was dead at the time of partition, Nishimappa's son, defendant No. 3, took the estate subject to the rights of the widow of Parappa to residence and maintenance out of the share which Parappa would have got if he were alive at the date of the partition. That right is referable to her being a widow of a deceased coparcener. A wife of a coparcener is a member of the joint family. She does not cease to be a member by the death of her husband. In that view Nishimappa's son, I think, continued to be a member of the joint family, notwithstanding the disruption of the coparcenery of which he was a member along with his cousins, so long as there was a widow in that family entitled to adopt. (See observations in Mulla's Hindu Law under ill. (c) to Section 506, p. 557, ed. 8). It is therefore in my opinion wrong to draw an analogy from Balu's case (1936) 39 Bom. L. R. 382; for here there is no question of reviving the coparcenery after devolution of the estate held by the last surviving coparcener upon his death on his heir. In the present case the birth of a son to defendant No. 3 would have revived the coparcenery in the same way as the adoption' of the plaintiff.
9. It may be noted that the full bench approved of the ruling in Chandra v. Gojarabai I.L.R. (1890) Bom. 463, which they held was still good law, it not having been expressly disapproved by the Privy Council decisions, such as, Pratapsing Shivsing v. Agarsingji Raising (1918) L. R. 46 IndAp 97 : 21 Bom. L. R. 496, Yadao v. Namdeo (1921) L. R. 48 IndAp 513 : 24 Bom. L.R. 609, Bhimabai v. Gurunathgouda Khand-appagouda (1932) L. R. 60 IndAp 25 : 35 Bom. L. R. 200, and Amarendra Mandngh v. Sanatan Singh . The principle deduc-ible from Chandra's case is that an adopted son cannot divest an estate which is already vested in another, that is, he cannot exclude the heir of the last holder other than the widow herself. There it was remarked that if the question had arisen between an adopted son and his uncle, if he were alive, the adopted son would have been entitled to succeed. Although those remarks were obiter, they were founded upon the ruling in Sri Raghunadha v. Sri Brozo Kishoro , and recognize the principle that the adopted son cannot divest property vested in a collateral relation of the husband in succession to some other person who had himself been the sole owner in the meantime. I am in doubt whether that is consistent with the rule laid down in Amarendra's case-although the latter was a case of inheritance and not coparcenery. Although Balu's case has to a certain extent restricted the rights of the adopted son, particularly upon an argument ab inconvenienti, the analogy of that ruling cannot be extended further to the prejudice of the adopted son. Here however the case is entirely different. Nishimappa's son was the nephew of the adopted son's father Parappa. There is no question of divesting the property which was already vested in him and in his possession as a member of the coparcenery. The interest of Nishimappa's son which was defined upon a division among the coparceners was vested in him at the time of the partition. That partition merely transformed the entirety of interest in the joint family property into severalty. It is idle to contend that the adopted son was divesting him of that estate. There would be upon adoption of the plaintiff a pro tanto reduction of the quantum of the interest acquired by him at the time of the partition. But that is entirely a different matter. If it were held that a division among the surviving coparceners could effectively bar the adopted son of a deceased coparcener from claiming a share in the family property, the right of adoption of a widow of a deceased coparcener would be easily frustrated. It is therefore reasonable and proper to conclude that, merely because there was disruption of the coparcenery upon partition between defendant No. 3 and his cousins, the rule in Balu's case will not affect the plaintiff's adoption. It seems to me following the recent decisions of the Privy Council and this Court that the adoption of the plaintiff Huchappa by Parappa's widow is valid.
11. The question of the right of the adopted son to re-open the partition, or rather to question the fairness of its terms, is not free from difficulty. There is no doubt that the rights of the adopted son arise for the first time upon his adoption, and, although the authorities are not clear as to whether his rights relate back to the) date of the death of the adoptive father, I am not prepared to say that under all conditions and circumstances the adopted son cannot challenge a partition of this kind effected prior to his adoption among the coparceners of his father. There is considerable body of authority to the effect that an adopted son cannot challenge alienations or arrangements made by his adoptive father on the ground that the rights of the adopted son arise from, the moment of his adoption, and they do not displace the rights created by the father or adoptive mother prior to the adoption. Consequently it has been urged that as Nishimappa's son, defendant No. 3 had dealt with his property by agreement entered into by him, or rather by his guardian, with his coparceners, that agreement could not be questioned by the adopted son. On the other hand, there is authority for the view that an agreement by the adoptive mother with the natural father of the adopted son can be questioned by the latter, if it is to his prejudice-[see Vyasacharya v. Venkubai I.L.R. (1912) Bom. 251 : 14 Bom. L. R. 1109]. It is urged that an adopted son could therefore call in question a partition effected prior to his adoption between the surviving coparceners of his father if it is to his prejudice. That eminent scholar Mr. Golapchandra Sarkar Sastri, in his Treatise on Hindu Law of Adoption (Edition 1916, p. 416 at 419), has dealt with the adopted son's powers to question the aliena-tions of his mother. But he has expressed no opinion on the rights of the adopted son to question a partition effected prior to his adoption. The matter has not been very fully argued before us, and I think it is not proper to express any definite view on the point raised, as on the merits and the evidence I am satisfied that the plaintiff has not made out a case for reopening the partition.
12. The learned trial Judge has held that the division of the houses is not unequal. But with regard to the lands he was in doubt, because there was divergence in the area and assessment which might possibly lead to the suspicion of inequality of division. It seems to me that the inequality in the area has been compensated by the quality of the land. It is difficult to say, in view of the fact that defendant No. 3 was properly represented by his guardian who, it is not shown, was negligent with regard to the interest of her minor son, that the division accepted by her should now be set aside merely upon the statement in the pleadings that it was unequal and unfair.
13. The other circumstance alluded to is that there was possibly a fraud on the minor by reason of the appropriation of the realisations in respect of certain family advances, on the security of mortgages allotted to the share of defendants Nos. 1, 2 and 4. There is no sufficient evidence for accepting that statement. There were certain other advantages which the minor received in the shape of moveables. It is sufficient to say that the onus which lay on the plaintiff of proving; the alleged inequality of the division has not been satisfactorily discharged.
14. I therefore agree with my Lord the Chief Justice that the lower Court's decree should be affirmed, subject to the variation that the plaintiff shall be entitled to one-half of the share allotted to Nishimappa on partition.
15. The plaintiff must pay the costs of the suit and the appeal to defendants Nos. 1, 2 and 4, and must recover his costs of the suit from defendant No. 3.