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Vithalbhai Gokalbhai and ors. Vs. Shivabhai Dhoribhai and ors. - Court Judgment

LegalCrystal Citation
Decided On
Case NumberFirst Appeal No. 302 of 1947
Reported inAIR1950Bom289; (1950)52BOMLR301
ActsHindu Law; Succession Act, 1925 - Sections 119; Transfer of Property Act, 1882 - Sections 19
AppellantVithalbhai Gokalbhai and ors.
RespondentShivabhai Dhoribhai and ors.
Appellant AdvocateD.V. Patel, Adv.
Respondent AdvocateA.G. Desail, ;S.Y. Abhyanlcar and ;K.J. Abhyankarl, Advs.
DispositionAppeal dismissed
hindu law - adoption--sole surviving coparcener disposing of property by will--life interest with possession to wife of testator and after wife's death to his sisters with ownership--alienation of property by sisters' heirs--subsequent adoption by widow of testator--whether testator's sisters take vested interest in property on his death--alienations whether binding on adopted son.;the sole surviving coparcener in a hindu family executed a will whereby he gave possession of all his property to his wife after his death and directed that she should maintain herself from the income of certain specified portion of it. he further directed that the property should go to his sisters, as owners, after the death of his wife. a portion of the property was mortgaged with possession, and in regard.....chainani, j.1. the dispute in this appeal relates to certain properties which originally belonged to gokalbhai bapuji patel. he had no issue. on 8th october 1895, he made a will with regard to these properties. they are referred to as lots nos. 1 to 6 in the will. he stated in the will that his wife should take possession of all his properties after his death and should meet the expenses of his funeral ceremonies from lots nos. 4 and 5. he further directed that his wife should maintain herself from the income of the remaining properties and that after her death, these properties should go to his two sisters, jijiben and raibaben. one of these properties, lot no. 6, had been mortgaged with possession, and in regard to that property he stated that it should be redeemed by his two sisters......

Chainani, J.

1. The dispute in this appeal relates to certain properties which originally belonged to Gokalbhai Bapuji Patel. He had no issue. On 8th October 1895, he made a will with regard to these properties. They are referred to as lots Nos. 1 to 6 in the will. He stated in the will that his wife should take possession of all his properties after his death and should meet the expenses of his funeral ceremonies from lots Nos. 4 and 5. He further directed that his wife should maintain herself from the income of the remaining properties and that after her death, these properties should go to his two sisters, Jijiben and Raibaben. One of these properties, lot No. 6, had been mortgaged with possession, and in regard to that property he stated that it should be redeemed by his two sisters. At the end of the will, he stated that if his wife gave birth to a son or daughter after his death, he or she was to be the owner of all his properties. Gokalbhai died on 26th January 1897, leaving behind a widow Bai Raliat and two sisters, Jijiben and Raibaben. Jijiben died a few days after him on 14th February 1897, leaving behind a son, Shankar Lal-das. Raibaben died in 1904 leaving behind two sons Fakirbhai and Bhailal. Bhailal had three sons, Mahaji Chaturbhai and Hathibhai. On 12th March 1909, Shankar Laldas sold properties lots Nos. 1 and 2 and half of house, lot No. 5, to plaintiffs 2 and 3's father, subject to the rights of Bai Raliat to enjoy their income during her life time. On 15th January 1912, Raibaben's heirs Fakirbhai and Bhailal's three sons, sold properties, lot No. 3 and half of house, lot No. 5 to the father of plaintiff 1 and father-in-law of plaintiff. 4. The purchasers did not obtain possession of the properties, as under the will, the sisters of Gokalbhai were not entitled to their possession until after the death of the widow, Bai Raliat. In May 1946 Bai Raliat adopted defendant 2 son of defendant 3. On 26th August 1946, the plaintiffs filed the present suit for a declaration that defendant 2 was not the adopted son of Gokalbhai Bapuji and that he was not entitled to the properties (lots Nos. 1, 2, 3 and 5) which had been alienated to the fathers of plaintiffs 1, 2 and 3. Bai Raliat, who was defendant l, died during the pendency of the suit. The plaintiffs then amended the plaint and prayed for possession of the properties also. Defendants 2 and 3 to whom I will refer in the remaining part of the judgment as defendants, raised various contentions. The principal contentions with which we are now concerned, were that the two sisters of Gokalbhai did not acquire any interest in the properties on the death of Gokalbhai, that whatever rights they obtained under the will were to accrue to them after the death of Bai Raliat, that the adoption of defendant 2 put an end to these rights and that as the adoption took effect from the death of Gokalbhai, the alienations made by the heirs of Jijiben and Raibaben were not binding on defendant 2. The learned Civil Judge held that the adoption of defendant 2 had been proved. He did not accept the defendant's other contentions and passed a decree directing the defendant to handover possession of the properties to the plaintiffs. The defendants have come in appeal.

2. Mr. Patel, who has appeared for the appellants defendants, has raised two points in this appeal. He has urged that the bequests made by Gokalbhai to his two sisters by his will were contingent, as they were subject to the condition of Bai Raliat dying without any issue, that the legacies did not vest in the sisters on the death of Gokalbhai, but that their rights arose for the first time after Bai Raliat's death, that as in the meantime defendant 2 had been adopted, the adoption extinguished whatever rights they had acquired under the will and that the dispositions made in their favour cannot consequently take effect. He has further urged that as the rights of an adopted son are the same as those of a natural born son, and as an adopted son is presumed to have been in existence at the time of his adoptive father's death, the dispositions made by the will are in any case not binding on the adopted son, defendant 2, as the properties were ancestral.

3. In support of his arguments on the first point, Mr. Patel has referred us to Natvarlal v. Banchhod 22 Bom. L. R. 71 : A. I. R 1920 Bom. 295, Shivappa v. Virbhadrappa : AIR1943Bom423 and the unreported decision of Gajendragadkar J. in Patel Motibhai Amthabhai v. Patel Rambhai, Mahijbhai, S. A, No. 1136 of 1943, D/- 2-2-1946. The terms of the wills in these cases were different from those of the will, which we have to consider. In Natvarlal v. Banchhod 22 Bom. L. R. 71: A.I.R 1920 Bom. 295, the testator by his will left all the properties to his son's widow for her life, but permitted her to adopt a son. The boy, if adopted, was to be owner of the properties. The will provided that if the son's widow died without taking a boy in adoption, his grand daughter and her sons were to be owners of the properties. It was held that inasmuch as there was, on the death of the testator, no direct gift of the remainder to the grand-daughter, but a gift contingent on the happening of an uncertain event, viz. the dying of son's widow without having taken a boy in adoption, the contingency could not be regarded as having occurred in view of the fact that the son's widow had in fact made an adoption. In Shivappa v. Virbhadrappa : AIR1943Bom423 , the will directed that the two widows should take possession of the properties after the testator's death and enjoy them during their lifetime and that after their deaths, Gurappa or his heirs should take possession of the properties and enjoy them. It was also stated in the will that no one had any right of interference in regard to immovable properties during the lifetime of the widows. On an interpretation of the terms of the will, Lokur J. came to the conclusion that the testator did not purport to expressly give his properties to Gurappa individually, that the testator contemplated the possibility that Gurappa might not survive the widows and had, therefore, said that the properties should be taken possession of by Gurappa or his heirs, that the testator was not anxious to make a bequest in favour of Gurappa but only to see that his lawful heirs succeeded one after another, and that consequently, the properties did not vest in Gurappa on the testator's death. In the third case, the will ran as follows :

'After my death, my wile Ganga is the heir to my property and if Ganga has a child in future, the child is the heir to the property and if I have no successor behind me, then my property should be taken possession of by the following persons and they should according to the majority use it for medical or educational purposes.'

After the testator's death the widow adopted a son and a question arose whether the bequest in favour of the charity could take effect. Gajendragadkar J, held that the terms of the will showed that the gift in favour of charity was not to take effect if there was any person who could legitimately claim to be the testator's successor, that the adopted boy was the successor of the deceased, as under the Hindu law, a son adopted is in all material particulars equal to a son born and that consequently the adopted son was entitled to the testator's properties. All these three cases were therefore decided on their own facts. Moreover, as observed by Kay L. J, in In re Stone; Baker v. Stone (1895) 2 ch. 196 : 64 L. J. Ch. 637 'one will ought not to be construed by another, where the language of the two is not identical.' The question must be decided by reference to the intention of the testator, which is to be gathered from the language used by the testator in the testamentary instrument. The document must be read as a whole and all parts of it must be considered with reference to each other so as to form, if possible, one consistent whole. See Rameshwar Baksh Singh v. Balraj Kuar .

4. The relevant portion of the will in the present case is in the following terms :

'The abovesaid properties originally of the ownership and enjoyment of my ancestor and thereafter of my own ownership and enjoyment. Oat of them the house in item 6 is mortgaged to Patel Lallubhai Mathurbhai of Nadiad and is in his possession. And the properties in items, 1, 2, 3, 4 and 5 are in my possession. I make the following arrangement of my below-mentioned properties.

I am the owner of the said properties so long as I live, and would enjoy the same. After my death Bai Baliat should take possession of my abovesaid properties and should perform my obsequial ceremonies after me in accordance with the custom of my caste. Out of the income of whatever properties remains after defraying the expenses of my death ceremonies she should maintain herself. After the death of my wife, out of the properties taken possession of by my wife and which have remained after meeting the expenses of my obsequial ceremonies, properties mentioned in items Nos. 1 and 2 should be taken possession of by my sister Jijiben who is married to Patel Laldas Shambhudas of Bilodra in Nadiad Taluka as owner and she should enjoy the same as owner (by right of ownership), and property mentioned at item No. 3 should be taken in possession by my sister Raiba who is married to Patel Mathurbhai Jorbhal of Bakarol in Petlad Taluka, as owner and she should enjoy the same as owner (by right of ownership). My wife should spend for my obsequies out of the properties in items Nos. 4 and 5. My wife should take possession of what remains out of items 4 and 5 after performing my obsequies and my other properties mentioned above and should maintain herself out of the Same. After the death of my wife, the properties mentioned in items 1 and 2 should be taken possession of by my sister Jiji and that in item 3 by my sister Raiba as owners and they should enjoy the same as owners and out of the properties mentioned in items 4 and 5 whatever has remained with my wife, after spending for my obsequies, should be taken possession of by my sisters Jiji and Raiba after my wife's death and they should perform the obsequies of my wife out of the same. And the property mentioned in item 6 which is mortgaged should be redeemed by my sisters Jiji and Raiba who should then take possession of it and enjoy it as owners. If my wife gives birth to a son or daughter after my death, then he is the owner of the above-mentioned properties of mine. As long as I live I am the owner. After my death I have made the above arrangements and according to that my wife and my sisters should behave.'

5. It will be seen that lot No. 6 was then mortgaged with possession and the testator directed that his sisters should redeem it and then enjoy it as owners. No interest in this property was given to the widow, and it has been conceded by Mr. Patel that the sisters took vested interest in this property on the testator's death. Lots Nos. 4 and 6 were set apart for meeting the expenses of funeral ceremonies of the testator and subsequently of his widow. The widow was to maintain herself out of the income of lot Nos. 1, 2 and 3 and of what was left out of lots 4 and 5. After her death, these properties were to be taken by the sisters, Jijiben and Raibaben, as owners and were to be enjoyed by them as owners. The difference In the language used with regard to the widow and that used with reference to the two sisters should be noted. The widow was to take possession of the properties after the testator's death and maintain herself out of their income. She was not given the right to enjoy the properties as owner even during her lifetime. The word 'owner' is never used with reference to her, The sisters, on the other hand, are always referred to as owners and their rights are described as those of ownership.

6. According to the will, the sisters were not to take possession of the properties until after the death of the widow and it has, therefore, been contended that they did not take any vested interest in the properties on Gokalbhai's death. The fact that no rights of ownerehip were conferred on the widow and that she was given only the right to maintain herself out of the income would, on the other hand, suggest, as has been urged by Mr. Desai for the plaintiffs, that the bequests to sisters were of present rights, the enjoyment of which was postponed till the death of the widow. Section 119, Succession Act, provides that:

'Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator's death said to be vested in interest.'

The explanation to this section states that:

'An intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed, or whereby a prior interest therein is bequeathed to some other person, or from a provision that, if a particular event shall happen the legacy shall go over to another person.'

The third illustration to this section is as follows:

(iii) A fund is bequeathed to A for life, and after his death to B. On the testator's death the legacy to B becomes vested in interest in B.'

This section does not in terms apply to the present case because the will was made in 1895, but the principle of this section has always been recognised by Hindu law, see note No. 10 to section 19 in Sir Dinshah Mulla's Transfer of Property Act, 1949 edition. The principle was applied by the Privy Council in a case decided under the Hindu law as long ago as 1846. Rewun Persad v. Mt. Radha, Beeby 4 M.I.A. 137: 1 Sar. 327 . In that case, the testator gave his widow a life estate in all his property, and after her decease he gave a moiety thereof to his brother B, and his sons, C and D. B and C died in the lifetime of the tenant for life. C and D were divided brothers, C's widow claimed his share. The Judicial Committee held that C and D took vested interest in the moiety, as tenants in common, the actual enjoyment of the expectant interest being postponed till the termination of the life estate. In Subramanian Chettiar v. Laxmanan Chettiar : (1940)1MLJ817 , it was held that in law it is presumed that where there is a gift, the remainder vesta on the testator's death in the remainderman, unless there are very clear words to show that the testator had a contrary intention. There are no clear words indicating a contrary intention in the present case.

7. In Enid Browns v. Florence Yoda Moody A. I. R 1936 P. C. 285 : 164 I. C. 321, the Privy Council has held that (p. 287):.'where there is a direction to pay the income of a fund to one person during his lifetime and to divide the capital among certain other named and ascertained persons on his death even although there are no direct words of gift either of the life interest or of the capital, the rule is that vesting of the capital takes place a morte testatoris in the remainderman.'

In that case, their Lordships cited with approval the principle as stated in 'Jarman on Wills,' 7th Edn, p. 1377:

'... Even though there be no other gift than in the direction to pay or distribute in futuro yet it such payment or distribution appear to be postponed for the convenience of the fund or property, the vesting will not be deferred until the period in question. Thus where a sum of stock is bequeathed to A for life; and, after his decease, to trustees, upon trust to sell and pay and divide the proceeds to and between C and D, or to pay certain legacies there out to C and D; as the payment or distribution is evidently deferred until the decease of A, for the purpose of giving precedence to his life interest, the ulterior legatees take a vested interest at the decease of the testator,'

The present case is similar to the illustration given in the above passage. The sisters were to take possession of the properties after the death of the widow, which in the course of nature was to occur sooner or later. The object of the postponement of their rights was obviously that the widow might enjoy the income during her lifetime. Such postponement to enable an interposed life interest to be enjoyed cannot, as observed by the Privy Council in the above case, exclude the vesting of the properties on the death of the testator. In Bhagabati Barmanya V. Kali Charan Singh 38 I. A. 54: 10 I. C. 611, a child. less Hindu testator directed that after his death his wife and mother should take possession of his properties and that

'on the death of my mother and my wife, the sons of my sisters .... shall in equal shares hold the said properties in possession and enjoyment by right of inheritance.'

The Judicial Committee held that the nephews took vested and transmittable interest on the death of the testator, though their possession and enjoyment were postponed until the deaths of the mother and the widow. On the same reasoning, it must be held that Gokalbhai's intention was to give his sisters vested interest in the legacies on his death, though postponing their possession and enjoyment until the death of Bai Raliat.

8. Mr. Patel has laid stress on the provision in the will that if the testator's wife gave birth to a son or daughter after his death, he or she was to be the owner of all his properties and has argued that the interest taken by the sisters was contingent on Bai Raliat's dying without leaving any issue and that consequently the properties could not vest in them until Bai Raliat's death, There is no substance in this argument. At the time when Gokalbhai executed the will, he had no issue. He, however, wanted to provide for the contingency of a child being born to him subsequently and therefore directed at the end of the will that if that event happened, his child was to take all the property. The gift to the sisters was, therefore, liable to be defeated if a child was born to the testator. Such a provision does not prevent the estate from vesting, for as observed by Kanliaiya Lal J. in Sundar Bibi v. Lal Rajendra Narain Singh : AIR1925All389 , the condition affects the retention of the interest and is not a condition precedent to its acquisition. Assuming, however, that the bequests to the sisters were contingent on a child not being born to Gokalbhai, the bequests vested in them at least 10 months after Gokalbhai'a death, for no child could have been born to him thereafter. In Umesh Chunder Sircar v. Mt. Zahoor Fatima 17 I. A. 201 : 18 Cal. 164 , where by a deed of settlement a husband granted the lands in suit to his wife on condition that if she had a child by him, the grant should be taken as a perpetual mokurruri, and in case of no child being born as a life mokurruri, with remainder to the settlor's two sons by another wife, the Privy Council held that the two sons from the first wife took definite interests under the deed similar to vested remainders, though liable to be displaced by the birth of a child to the second wife. The present case is similar.

9. We are, therefore, of the opinion that the two sisters of Gokalbhai, Jijiben and Raibaben, took vested interest in the properties on the death of Gokalbhai, which was liable to be divested by the birth of a child to his widow. That Gokalbhai intended that his sisters should take immediate vested interest is also clear from the fact that the right of redeeming the mortgaged house, lot No. 6, was given not to his widow but to his two sisters only.

10. The next point raised in this appeal is about the effect of adoption of defendant 2 on the dispositions made by the will. In Juttendromohun Tagore v. Gajendromohun Tagore I. A. Sup 47 : 9 Ben L. R. 377, the Privy Council at page 67 have described the position of an adopted son as follows:

'In contemplation of law such child (adoptive child) is begotten by the father who adopts him, or for and on behalf of whom he is adopted, Such child may be provided for as a person whom the law recognises as in existence at the death of the testator, or to whom, by way of exception, not by way of rule, it gives the capacity of inheriting or otherwise taking from the testator, as if he had existed at the time of the testator's death having been actually begotten by him.'

11. In Pratatpsing v. Agarsinghji 21 Bom. L. R. 496 : A.I.R 1918 P. C. 192, a village forming part of an impartible estate had been granted for maintenance to a junior member of the family to be held, and enjoyed so long as the grantee's male line lasted. The last holder died in October 1903 without male issue. In March 1904, his widow adopted a son. A suit was then filed for possession of the village on; the ground that it had reverted to the estate as the last holder had left no male issue. It was contended that after the death of the last holder, there was no property left for the adopted son to take, as it had reverted to the grantor's estate immediately after his death. This argument was not accepted by the Privy Council, At page 504, their Lordships observed :

'Now it is an explicit principle of the Hindu law that an adopted son becomes, for all purposes, the son of his father, and that his rights unless curtailed by express texts are in every respect the same as those of a natural-born son. . . . Again, it is to be remembered that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as Messrs. West and Buhler point out in their learned treatise on Hindu Law, the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible,'

Similar observations have been made in other cases, to which it is unnecessary to refer. Mr. Patel has relied on these cases and has argued that as an adopted son is presumed to have been in existence at the time of his adoptive lather's death, there being, as observed by the Privy Council, no hiatus in the continuity of the line of his adoptive father, the adopted son's sights cannot be affected by any will made by the adoptive father, if the property in his hands was ancestral, as in the present case. We are unable to accept this argument, for, as I will point out presently, the Courts have always drawn a distinction between cases in which the property has been partitioned between the members of the family or has gone by inheritance to some other members of the family and those in which it has gone into the possession of outsiders by transfer inter vivos or by will. No case has been cited before us, in which it has been held that an adopted son can challenge an alienation made by his adoptive father before the adoption. In fact in Pratapsing v. Agarsinghji 21 Bom. L. R. 496 : A. I. R 1918 P. C. 192, the Judicial Committee appeared to be of the opinion that the reasoning in that case could not be adopted in cases in which rights in favour of strangers had been created. At p. 505 they stated :

'Here the adoption was made within the period of natural gestation, and the property was at the time of the adoption in the possession of the widow and still is in the possession of the adopted son. It may be that if a Hindu widow lies by for a considerable time and makes no adoption, and the property comes into the possession of some one who would take it in the absence of a son, natural or adopted, and such parson were to create rights in such property within his competency whilst in possession, in such a case totally different considerations would arise. But here there is nothing of the kind to modify the true application of the Hindu law.'

Mr. Patel has laid stress on the words 'whilst in possession' in the above passage and has argued that the only cases in which different considerations will apply are those in which the property has actually gone into the possession of a person who would have taken it in the absence of a son. But the Privy Council were not dealing with the case of alienations. The case before them was one in which the property was still in the possession of the family (the widow of the last holder), and the Privy Council have mentioned one class of cases, which would be governed by different considerations.

12. In support of his arguments, Mr. Patel also referred to two other cases, Bajirao v. Ramkrishna and Sankarlingam v. Veiuchami I. L. R (1943) Mad, 309 : A. I. R 1943 Mad. 43 . In the former case, it was held that while a partition may affect the coparceners inter se, it will not affect the subsequent rights of the son adopted by a widow of a deceased coparcener, and that so far as he is concerned, the family will be deemed to continue to be joint and that he will be entitled to his share in the family property as if the partition had not taken place. The question whether the adoption would defeat a prior alienation was not considered in this case. In the latter case Sankarlingam v. Veluchami I. L. R. (1943) Mad. 309 : A. I. R 1943 Mad. 43., it was held that an adopted son is entitled to re-open a partition of family property effected by the surviving coparceners before the adoption took place, but it was expressly stated that this was subject to lawful alienations made by the coparceners before the adoption. Leach C. J. in his judgment at p, 314 observed :

'An adoption does not, however, affect the rights of an alienee of family property when the alienation is lawful, and therefore when surviving coparceners alienate family property, as they have the right to do, the adoption by the widow of a deceased coparcener of a son to her husband does not defeat the alienee.' According to this decision, therefore, an adopted son is not entitled to properties, which had been lawfully alienated prior to his adoption.

13. Similar view has been taken in several other oases. In Rambhat v. Laxman Chintaman 5 Bom. 630, it was held that

'a conveyance by a Hindu, without male issue at the date thereof, will bind his subsequently born or adopted male issue. Such issue at their birth take a vested interest in such property only as is that of their father at that time.'

14. In Basawantappa v. Mallappa 41 Bom, L. R. 268 : A. I. R 1939 Bom, 178, it was held that:

' .... an alienation made without justifying necessity by a coparcener of his share in the coparcenary property, or in excess of his interest in the coparcenary property, is binding upon a coparcener adopted after the date of the alienation.'

15. The question was considered by the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar their Lordships stated the principle in the following terms:

'When a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made by the widow who has been given power to adopt, for the will speaks as at the death of the testator, and the property is carried away before the adoption takes place.'

It has been suggested by Mr. Patel that these remarks must be regarded as obiter, as the question which arose for decision before the Privy Council was a different one, whether an agreement entered into by the natural father of the adopted boy was binding upon him. But as observed in Rama Appa v. Tippaya Appaya : AIR1943Bom95 obiter dicta of the Privy Council are binding on this Court, if they are definite opinions expressed by them.

16. Mr. Patel also urged that the above remarks should be disregarded, as they are inconsistent with the position assigned to an adopted son by the earlier decisions of the Privy Council. The same argument was advanced in Veeranna v. Sayamma 52 Mad. 398 : A. I. R 1929 Mad. 296 but was not accepted. At p. 415, Odgers J. stated :

'What authority there is with regard to alienations by a male-holder, is strongly, and it seems to me conclusively, against the contention argued by the appellant. We cannot conclude that the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar were oblivious of their previous decisions and it seems to me that their Lordships must clearly be held to distinguish the case of interference with alienations from cases of divesting on the theory of relation back or any theory of continuity of succession or no hiatus in the line as they put it in Pratapsingh Shivsingh v. Agarsanghji 43 Bom. 778 : A.I.R 1918 P. C. 192.'

It was held in that case that:

'The last surviving male member of a joint Hindu family is the full owner of all the family properties in spite of an unexercised power of adoption possessed by the widow of a deceased member; that such survivor can alienate all or any of the family properties absolutely without the son adopted after the alienations, being able to question the same, and that the theory that, on an adoption, the adopted son's rights to property ordinarily relate back to the date of his adoptive father's death, does not apply to such a case.'

At p. 402, Odgers J. in his judgment ited the following passage from Mayne's Hindu Law, Edn. 9, para, 198 ;

'I am not aware of any case which has raised the same question, where the person whose estate was divested by adoption was a male, and therefore a full owner. But I conceive the same principles would apply. Until adoption has taken place he is lawfully in possession, holding an estate which gives him the ordinary powers of alienation of a Hindu proprietor. No doubt he is liable to be superseded; but on the other hand, he never may be superseded. It would be intolerable that the should be prevented from dealing with his own, on account of a contingency which may never happen. When the contingency has happened, it would be most inequitable that the purchaser should be deprived of rights which he obtained from one, who, at the time, was perfectly competent to grant them.'

He pointed out that the doctrine of relation back of adoption to the death of adoptive father had been invented for the purpose of establishing a line of succession to the adoptive father, the ordinary rule being that when succession opens or when the previous holder relaxes his possession of the property, there must be some body to take it and stated that it was in this connexion and in this alone that the above doctrine was to be regarded. At pp. 419 and 420, Venkatasubba Rao J. observed :

'To explain certain legal results, this theory of relation back has been adopted. Can it be accepted as an inflexible legal formula, on the ground that every rule must be logically applied The theory is, that a Hindu cannot be said to have died without male issue, until the death of the widow, makes adoption impossible; in other words, so long as the widow is alive, there is the possibility of an heir coming into existence. West and Buhler, 4th Edn., 890; Pratapsing Shivsingh v. Agarsingji Rajasangji 43 Bom. 778: A.I.R 1918 Bom. P. C. 192. Supposing this doctrine is carried to its logical results, what follows The mere fact that the widow of a deceased member exists, hinders the male owner from dealing with, what is presumably, his own property. The widow may never adopt and yet the fetter Is quite effectual. If the widow happens to outlive the surviving coparcener, the restriction on his power lasts till his death. With the conception that a widow has limited powers over property, the Hindu law has made us familiar but the doctrine we are now asked to accept leads to the startling result, that the position of a male proprietor is infinitely worse than that of the widow, under the law.....

The result is, that in no circumstances can a male coparcener give a valid title, so long as their is a widow in the family, alive. Then again, in a joint family any one at his will may sever himself from his coparceners and deal freely with the property, that falls to his share; but according to the theory put forward, the last survivor, where a widow exists, is helpless and without a remedy. Is there anything that compels us to enforce a rule leading to such strange results The contention seems on the contrary to be inconsistent with well established principles of the Hindu law. It is a normal incident of a joint family that a bare possibility of a concurrent interest coming into existence imposes no fetter on alienation. A sonless father enjoys power of alienation without restraint; with the son, the fetter comes into being and on his death, the father's full rights re-emerge.'

17. With respect we agree with these observations. The case of Veeranna v, Sayamma 62 Mad. 398 : A.I.R 1929 Mad. 296 was approved by the Privy Council in Anant Bhikappa v. Shankar Ramchandra . In that case it was held that an adoption made by the widow of a deceased coparcener after the death of the last surviving coparcener is valid and would divest the heir of the last holder of the property which he had taken by inheritance. It is clear from the judgment that their Lordships limited the decision to cases in which the family property had passed by inheritance before adoption, for. at p. 8 they stated :

'It (adoption) must vest the family property in the adopted son on the same principle, displacing any title based merely on inheritance from the last surviving coparcener.'

At p. 7, their Lordships observed :

'That the property had vested in the meantime in the heir of Keshav is not of itself a reason, on the principles laid down in Amarendra Mansingh v. Sanatan Singh 35 Bom. L. R. 859 : A.I.R 1933 P. C. 165 why it should not divest and pass to the plaintiff. Keshav's right to deal with the family property as his own would not be impaired by the mere possibility of an adoption.'

Veeranna v. Sayamma 59 Mad. 398 : A. I. R 1929 Mad. 296 was cited in support of this passage. In this passage, therefore, their Lordships re-affirmed the view taken by them in Krishnamurthi v. Krishnamurthi, ; Anant v. Shankar was considered by a Full Bench of this Court in Ramchandra Balaji v. Shankar 47 Bom. L. R. 121 : A. I. R 1945 Bom. 229 In that case it was held that the rights of an adopted son to joint family property are not affected by partition made previously amongst the surviving coparceners and that the adopted son is entitled to claim a re-partition of the family properties. The question of alienations made before adoption was not considered, but at p. 132, Lokur J. who delivered the principal judgment in that case, stated :

'On that principle (laid down in Anant v. Shankar the adopted son acquires all the rights that he would have possessed had he been born at the date of the adoptive father's death, subject to lawful alienations in the Interval.'

It was, therefore, recognised that an adoption would not affect the alienations made before the adoption. The Nagpur High Court has taken the same view in Udhao Sambh v. Bhaskar Jailtrishna A. I. R 1946 Nag. 203 : I. L. R. (1946) Nag. 435.

18. It may, therefore, be taken as well established that an adopted son cannot question the alienations or dispositions of family property lawfully made prior to his adoption by persons who were then competent to make them.

19. In the present case, Gokalbhai was the sole surviving coparcener at the time he executed the will. He was, therefore, the full owner of all the properties in his possession and was competent to alienate them inter vivos or by a will, The will made by him has also been given effect to. The house, Lot No, 6, was redeemed from mortgage, as directed in the will, by Jijiben's son, Shankar Laldas, and Baibabsn and was subsequently sold by them in 1901, Bai Raliat sold lot No. 4 in order to meet the expenses of the funeral ceremonies of Gokalbhai. The heirs of Jijiben and Raibaben also sold the other properties to the plaintiffs' predecessors-in-title, subject to the rights of Bai Raliat, and this could only be done by them by virtue of the legacies given to them by the will. The dispositions made by the will are, therefore, binding upon defendant 2, who was adopted about 47 years after Gokalbhai's death and he cannot challenge them. The plaintiffs are consequently entitled to possession of the properties purchased from the heirs of Jijiben and Raibaben.

20. The appeal consequently fails and is dismissed with costs.

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