1. This is a plaintiff's appeal in a suit based on a deed of gift made by her father in her favour on May 4, 1928, and registered on May 7. 1928. The suit has been resisted mainly by the first defendant, who is the adopted son of the plaintiff's father. The defendant's contention was that the deed of gift was not binding against him because it was passed after he was adopted, and that, therefore, his adoptive father had no power to make a gift in the plaintiff's favour after the property had vested in the coparcenary consisting of himself and his father. The material issues raised were as to whether the father Rudro had the power to dispose of the property under the gift-deed in favour of the plaintiff; whether it was proved that the said gift was part of a family arrangement and as such valid and binding on the defendants ; and whether the adoption took place before the gift in favour of the plaintiff. It appears that before the evidence was begun, the last issue, namely, whether the adoption took place before the gift to the plaintiff, was deleted as the learned Judge was of opinion that it was unnecessary and the plaint showed that there was no dispute about the adoption of defendant No. 1.
2. Both the lower Courts have dismissed the suit relying mainly on the decision of their Lordships of the Privy Council in Krishnamurthi Ayyar v.Krishnamurthi Ayyar : (1927)29BOMLR969 . In that case the person who intended to adopt a son made a will by which he gave part of his property to his son who was to be adopted, part to his widow for life, part to his kindred and part to charity, and it was held that the will was not binding on the adopted, son, although, before the adoption took place, the natural father of the adopted son who was then a minor had executed a deed by which he consented to the provisions of the will and gave his son in adoption subject to those provisions. The sole question, as has been stated in the judgment, was whether the will taken along with the deed of consent was binding on the adopted son so as to cut down what would have been his rights had he been a natural instead of an adopted son, and their Lordships, after an exhaustive discussion of the authorities bearing on this point, came to the conclusion that although an arrangement made at the time of the adoption of a Hindu whereby the widow of the adoptive father was to enjoy his property during her lifetime should be regarded as valid by custom, an agreement or consent by the natural father of the adopted son was not effectual in law or by custom to validate any other disposition taking effect after the adoption and purporting to limit the rights of the adopted son as a co-sharer. This decision, to my mind, is not applicable to the present case, because the deed with which we are concerned here is a deed of gift which would operate from the time of its execution and acceptance by the donee, while in the case before their Lordships the document was a will which would become operative only after the death of the testator, and therefore, as it would take effect necessarily after the adoption was made, the testator had no power to make any disposition with regard to property of which he had ceased to be the sole owner from the moment the adoption was made. It is on that ground that it is held that the will was not binding on the adopted son.
3. If, however, it is competent to a sole absolute owner to alienate his property before making an adoption, there is no doubt that the subsequently adopted son cannot repudiate the alienation, as when he enters into the family as a coparcener his rights attach to the property then existing. The authority for this proposition would be found in Rambhat v. Lakshman Chintaman Mayday I.L.R. (1881) Bom. 630, Veeranna v. Sayamma I.L.R. (1928) Mad. 398 and Kalyansundaram Pilled v. Katuppa Mooppanar . The last case is important and bears upon the point to be decided in this case. There a Hindu executed a charitable gift of immoveabie property under a trust deed and delivered it to the trustees. On the following day he adopted a son, and three days later the deed was registered. It was held that the gift was valid against the adopted son, and that on the delivery of the deed to the trustees and its acceptance by them under Section 122 of the Transfer of Property Act, the gift became effectual subject to its registration. It is important to note that in that case the deed of gift was executed by the donor on the footing that it was his immediate intention to adopt a son for the perpetuation of his lineage. It would, therefore, be clear that if the deed of gift is passed before the adoption takes place, it would be binding on the subsequently adopted son, and this decision is not in any way conflicting with the later decision of their Lordships in Krishnamurthi's case. In that case it is expressly laid down that the agreement by the natural father is not effectual to validate any of the dispositions taking effect after the adoption.
4. It would thus follow that any disposition made by the adoptive father before the adoption cannot be challenged by the adopted son. The sole question, therefore, in the present appeal is whether the deed of gift was passed before the adoption of defendant No. 1 took place. Now, on this point, as I said before, there was an express issue framed but it was deleted before the evidence began. In view of what I have said before, it was a very material issue, but unfortunately there is no finding of the Court on that issue, although the learned trial Judge seems to be of opinion, relying upon the testimony of the plaintiff's witness Mr. Dixit, that the adoption took place and the adoption-deed was passed subsequent to the passing of the gift-deed, but, says the learned Judge, that that point was not material and the defendants did not seem to be worried or disturbed about it. The lower appellate Court observes in its judgment that the father passed all these gift-deeds and the adoption deed on the same day at one and the same time. But the important time is not the time when the adoption-deed was passed but when the adoption itself took place. If the adoption takes place before the deed of gift and the deed of adoption, however, is passed after the deed of gift, the giftideed would not be valid because it is the adoption itself, viz., the ceremony of giving and taking, that creates the status of the adopted son and not the deed of adoption which is merely the evidence of adoption. The learned appellate Judge, however, observes that the plaintiff ought to be bound by the case which she made, namely, that the adoption including the adoption-deed and the gift-deed formed part of the same family arrangement which was arrived at simultaneously on the same day. That, however, is not a definite finding on which the point arising in this case could be decided. If the deed of gift and the adoption take place as part of the same transaction on the same day, but if the deed is passed in point of time before the actual ceremony of adoption, the deed would be binding on the adopted son. If such a deed is valid when executed one day before the adoption takes place as was held in Kalyanasundman,s case, I do not see any reason why the deed of gift which is passed immediately before the adoption takes place should not be similarly valid. If, however, it is passed after the giving and taking ceremony is over, it would not be binding on the adopted son and would be voidable at his instance. The material point, therefore, to determine is whether the adoption took place before the gift to the plaintiff, and although I find that the learned trial Judge has expressed his opinion on this point, I think it would be fair to the defendant not to decide this case merely on the stray evidence of one witness, especially as the specific issue had been deleted, and an opportunity should be given to the parties to lead evidence on this issue, and after it is found upon, the question will be decided whether the gift-deed is binding on the son.
5. I, therefore, send the following issue to the trial Court for a finding which should be forwarded through the District Court. The issue will be :-
Did the adoption of the first defendant take place before or after the gift in favour of the plaintiff ?
6. The finding to be returned within three months. Parties will be entitled to lead evidence on this issue.