1. One Hari Patlu, who owned certain survey numbers and a house, died on October 23, 1918. The pedigree of the family to which Hari Patlu belonged was as follows:
| | | Joti
Naroji Murari Hari |
| | Patlu
Laxman Ganu |
Maruti | |
=Haribai Hari Tukaram
| (died 23-10-1918)
2. On the death of Hari Patlu his property was taken into possession by the revenue authorities and on February 22, 1919, the property was given to one Maruti Babaji father of Ananda (defendant No. 1), who belonged to a different branch of the family unconnected with the branch of Hari Patlu and Maruti Ganu.
3. On March 18, 1947, one Ganpat (plaintiff) filed a suit against defendant No. 1 and the alienees from defendant No. 1, for possession of Hari Patlu's property, alleging that he was adopted by Haribai to her deceased husband MarutiGanu on April 23, 1946, and that Haribai on thadeath of her husband had inherited the propertyas the widow of a 'gotraja sapinda'. DefendantNo. 1 denied the plaintiff's adoption and Haribai'ssuccession to the property and he further pleadedadverse possession. The trial Court dismissed thesuit and the lower appellate Court confirmed thedecree of the trial Court and dismissed plaintiff'sappeal.
4. This second appeal raises an interesting question under Hindu law. The facts necessary to understand the question are briefly, these:
The property in suit which consists of three survey numbers & a house originally belonged to one Hari Patlu Phalke. These lands are (1) Survey No. 5/3 admeasuring 10 gunthas and assessed at Rs. 2, (2) Survey No. 51 admeasuring 5 acres and 12 gunthas and assessed at Rs. 17-4-0, and (3) Survey No. 80/2 admeasuring 1 acre and 38 gunthas and assessed at Rs. 8-2-0.
The owner Hari Phalke was In possession and enjoyment of the property until his death which occurred on 23-10-1918. A reference to the pedigree of the family to which Hari belonged will be seen at print page 3. Hari had a brother T'uka-ram. It appears that Tukaram's line is extinct. That pedigree also shows that Hari's ancestor Janaji had a brother by name Sagaji. sagaji's son was one Hari. Hari's son was one Ganu and Ganu's son was one Maruti. Haribai is the widow of Maruti. It is not known when Maruti died.
(4a) The plaintiff's case is that he was adopted as a son to her deceased husband by Haribai on 23-4-1946. Relying upon this adoption, the plaintiff filed this suit on 18-3-1947, to recover possession of the property from defendant No. 1 and defendants Nos. 2 and 3 who are alienees from defendant No. 1.
(4b) The plaintiff's claim was resisted by the defendants upon various grounds, and in the end the trial Court dismissed the plaintiff's suit.
(4c) From the decree made in the suit the plaintiff appealed in the District Court, Satara North, and the learned District Judge confirmed the decree of the trial Court and dismissed the plaintiff's appeal. From the appellate decree the plaintiff has come up in second appeal.
5. Before I deal with the question of law, It is necessary to state the conclusions come to by the lower appellate Court. The lower appellate Court found that the plaintiff had been validly adopted by Haribai. This finding is not now disputed in this second appeal. The lower appellate Court also found that the plaintiff had proved that Haribai succeeded to the property of Hari Patlu Phalke as the widow of a 'gotraja sapinda', and that finding also is not challenged in this appeal. The lower appellate Court also found that the claim as to adverse possession set up by the defendants was not proved, & that finding also is not assailed in this appeal.
On issue No. 3 the lower appellate Court, however, came to the conclusion that the plaintiff liad not proved his title to the property in suit by virtue of his adoption; and it is the correctness of this finding which is assailed on behalf of the appellant. On the finding recorded by the lower appellate Court it is clear that Haribai was the widow of a 'gotraja sapinda'. It follows that she would be entitled to inherit to the property of the last male holder Hari. The defendants' adverse possession is also not proved so far as the plaintiff is concerned. Therefore, if the plaintiff establishes his title to the property as the adopted son, then there is possibly no answer to the plaintiff's claim.
6. The lower appellate Court considered this question from two aspects. The first aspect was that the property had already vested in the father of defendant No. I and the plaintiff's adoption had not the effect of divesting the property already vested in defendant No. 1. The other aspect to which the lower appellate Court referred was that since the plaintiff's adoption took place in 1946, that adoption had not the effect of altering the mode of devolution of the property of Hari when he died in the year 1918.
7. The latter part of the reasoning of the lower appellate Court can be disposed of very shortly.
In support of its conclusion the lower appellate Court relied upon two cases, namely - 'Madhav-sang Haribhai v. Dipsang Jijibhai : AIR1942Bom280 (A) and -- 'Hanmant Ramaji v. Vasudeo Hanmant : AIR1943Bom89 (B).
Mr. Desai appearing for the appellant contends that these two cases are no longer good law in view of a later decision of this Court reported in -- 'Bai Paiba v. Chudasma Jorubha AIR 1949 Bom 242 (C). It is enough to quote the head-note in the latter case. It runs as follows:
'Under Hindu law, adoption by the widow of a 'gotraja sapinda', whose husband was a member of a joint family, after the death of the sole surviving coparcener, has the effect of divesting the property and displacing any title based merely on inheritance from the last surviving coparcener.'
It may be noted that the case reported in --'Madhavsang Haribhai v. Dipsang Jijibhai (A)' is held not to be good law, and the case in --'Hanmant Ramaji v. Vasudev Hanmant CB)' merely follows the principle laid down in --'Madhavsang Haribhai's case (A)', it is clear, therefore, that according to the decision in --'Bai Paiba v. Jorubha Gajubha (C)' both the above-mentioned cases are no longer good law.
In that view of the case, it is clear that the plaintiff as the adopted son is entitled to succeed to the property of Hari although the adoption was made by a widow of a 'gotraja sapinda' and that adoption took place after the death of the last male holder.
8. The other aspect of the case is based upon the reasoning of the decision in - 'Jivaji Annaji v. Hanmant Ramchandra', : AIR1950Bom360 (D).
The first part of the head-note in that case runs as follows:
'Under Hindu law, an adoption made after the death of a collateral does not enable the adopted son to come in as an heir to the collateral.'
The second part of the head-note runs as follows:
'Generally an adoption relates back to the death of the adoptive father. An adopted son is to be looked upon as if he was in existence at the date of the death of the adoptive father. The rights of an adopted son, however, are not in all respects identical with those of a natural born son. The principle of relation back is not an absolute principle, but it has certain limitations. The first limitation is that any lawful alienations made by the last absolute owner is binding on the adopted son. Secondly, that if the property goes by inheritance to a collateral and the adopted son is adopted after the death of the collateral, the adoption cannot divest the property which has vested in the heir of the collateral.'
This case follows two earlier decisions of their Lordships of the Privy Council in -- 'Bhubanes-wari Debi v. Nilkomul Zahiri', 12 Ind App 137 (PC) (E) and -- 'Anant Bhikappa v. Shankar Eamchandra .
9. Now, in order to understand the dispute between the parties it is necessary to understand the relationship of the parties. A reference to print page 3 shows that Ganpati as the adopted son would be entitled to succeed to the property of Hari in the absence of a nearer heir. The contention of Mr. Dange is that defendant No. 1 is also a collateral. For this, reliance was placed upon the pedigree set forth on print page 4, But that pedigree is not accepted, and in view of the finding that Haribai was entitled to succeed to the property of Hari as the widow of a 'gotraja sapinda', it follows that upon the death of Hari the legal title would vest in Haribai and not in defendant No. 1.
It may be that defendant No. 1 was in possession of the property. But that merely means that he was in physical possession of it. It may well be that as between defendant No. 1 and Haribai, defendant No. 1 may acquire title to the property by prescription. But so far as the plaintiff is concerned, that adverse possession will not be available as against the plaintiff. That is the finding recorded by the lower appellate Court and that finding is not disputed in this appeal. The result, therefore, is that the plaintiff Ganpati would be entitled to succeed to the property of Hari.
But it is said that inasmuch as the property had already vested in defendant No, 1 and his father, the plaintiff as the adopted son cannot come in so as to displace the title of defendant No. 1, Now, the question of vesting and divesting Is nearly always a subject of some difficulty. The law of adoption has undergone such a complete change that it is not safe to express any opinion emphatically. But it is clear that the principle is that where the property has vested in a collateral on the death of the last male holder and an adoption is made thereafter, then in such a case the adoption has not the effect of divesting the property already vested in the collateral or an heir of the collateral.
In this case it is not suggested that the property had been vested legally in a collateral. On the finding of the Court below the property would be legally vesting in Haribai. There was, therefore, in this case no legal vesting in defendant No. 1. If that is so, the adoption of Ganpati cannot have the effect of divesting the property already vested in a person legally entitled thereto. In my opinion, therefore, the lower appellate Court was wrong in holding that on the authority of -- : AIR1950Bom360 (D)' the plaintiff was not entitled to recover possession of the property from defendant No. 1 and his alienees, defendants Nos. 2 and 3.
It follows that on both the grounds the lower appellate Court was wrong in holding that the plaintiff had no title to the property. If the plaintiff has title to the property, he has a right to recover possession of the same from the defendants.
10. The appeal will, therefore, be allowed, the decrees of the Courts below will be reversed and the plaintiff's suit decreed. The plaintiff will recover from the defendants possession of the suit property. The plaintiff has claimed future mesne profits. The plaintiff will, therefore, be entitled also to recover mesne profits from the date of the suit to the date of recovery of possession. There Will be, therefore, an inquiry under Order 20, Rule 12, Civil P. C., as regards future mesne profits,
11. As regards costs, the lower appellate Court made an order directing the parties to bear their own costs in both the Courts, having regard to the-complexity of the case and the points of law-involved. There is, therefore, no reason to interfere with that order.
As regards costs of this appeal, Mr. Desai for the appellant says that he should be given his costs of this appeal. But I think, under all the circumstances of the case and in particular regard being had to the fact that the question of law is not easy to answer, the parties should also bear their own costs of this appeal.
12. Appeal allowed.