1. This case raises an interesting question relating to the law of adoption applicable to Hindus in this Presidency and serves to illustrate the obscurity into which that law seems to have fallen, the responsibility for which, in my opinion, in part at least, rests upon judicial decisions and dicta.
2. A Jain from Cutch came to Bombay nearly seventy-five years ago with the proverbial brass lota and, starting with an humble beginning, built up a lucrative business, out of the profits of which the family acquired considerable immoveable property. He had four sons, the eldest of whom died nearly forty-six or forty-seven years ago, leaving a widow, who shortly after separated from the family, provision for her maintenance having been made by the father-in-law. True, the maintenance allowed was very meagre, considering the wealth acquired by the family, but the fact remains that for nearly half a century she was quite satisfied with the provision thus made. The father and the other sons continued the business. After some time, the father effected a partition between himself and his sons, and every one became separate. The sons prospered and acquired considerable property separately from each other. Three years ago, that is nearly forty years after she had gone to live at Cutch, the widow came to Bombay and filed a suit for enhancement of the maintenance. She was, then got hold of by some designing persons, who apparently knew of the recent Privy Council case of Amarendra Mansing v. Sanatan Singh . The result was that within a month after the suit she made an adoption, and four or five months after that the present suit was launched. If I were not concluded by authorities, I should have had no hesitation in saying that no consideration of any religious merit ever entered into the adoption in this case,-and, as, will be presently seen, there can be none-,but that the widow, at the instigation of designing persons, was actuated by improper motives of either greed or spite, and this litigation was launched with the object of extorting what she could from the defendants.
3. The facts are short and are these. One Sojpal, a member of the Cutchi Visa Oswal Jain community, came to Bombay many years before 1888. The Advocate General in his opening stated that he came to Bombay in 1861, and that seems to be common ground. He found employment in Bombay for two or three years, and thereafter opened a grain shop in partnership with some outsiders. Later on, his partners in that business were one Tejoo Kaya and Dharsi Lila. Sojpal had four sons,-Gangji, Rowji, Pallon and Meghji. Of these, Gangji died in 1892 at the age of fifteen years, leaving him surviving his widow, defendant No. 19. She lived for two or three years with the family, and then went to live in a separate room in the family house at Cutch, under an agreement for her maintenance and residence (exhibit No. 4). The Advocate General wanted to prove that she was so completely separated from the rest of the family that she behaved as if she by herself constituted a different family, and with that object he put certain questions to his witness. In my opinion, the fact whether defendant No. 19 had completely separated herself from the family or not is irrelevant on the only question which arises in this case, and I disallowed the questions. To continue the narrative, about the same time Sojpal started the business of building contractors under the name and style of Tejoo Kaya & Co., the partners in which were, besides Sojpal, Tejoo Kaya and Devji Dharsi, the son of Dharsey Lila. Shortly thereafter, Rowji, who is defendant No. 1, was associated in this business, and he at first worked; in the grain shop and thereafter in Tejoo Kaya & Go. About 1899 the grain shop was closed, and Sojpal retired, from active business and went to live in Cutch; but his share in the business was continued. Thereafter Pallon began to work in the firm, and in about 1907 Meghji (defendant No. 2), who until then was schooling, was also admitted into the business. Neither of them, nor defendant No. 1 for the matter of that, was given any share, but a remuneration by way of paghdi used to be paid to Pallon and Meghji. This went on till about 1912-1913, and in that year, which corresponds to Section Y. 1969, the profits with interest to the credit of Sojpal stood at about Rs. 3,00,000. From that year definite shares were given to all the three brothers, which, however, were not equal but totalled seven and three quarter annas in a rupee, but no new khata was opened. On July 26, 1915, the father and the three surviving sons agreed to separate between themselves, having commenced, from about July 23 or 24, to mess and worship separately. Accounts were made up, and finally on October 10, 1915, hawala entries were made, and all the properties, belonging to Sojpal or his sons were divided in almost equal shares, each of the sons getting roughly about a lac of rupees, and the father getting about Rs. 1,05,000 for himself. Releases were drawn up in Bombay but executed some time thereafter in Cutch. In 1917 the firm of Tejoo Kaya was dissolved, and the sons formed a new partnership with one Kurpal. Large profits were made out of the business thereafter, and numerous properties were purchased by the sons separately. Each one of them dealt with and. enjoyed his properties separately and independently of the others; some properties were sold, some purchased and some gifted, and this went on till the suit was instituted. In 1928 Sojpal died. It seems that Rs. 1,05,000, which came to his share, was continued in his khata with the firm, Sojpal himself living sometimes1 with one son and sometimes with another until his death, and after his death the bulk of this sum was spent in charity under instructions given by Sojpal himself. In 1934 Pallon died. In April, 1935, defendant No. 19 filed the suit for enhancement of maintenance, referred to above, and the next month she purported to adopt the plaintiff. In November of that year the present suit was filed. The plaintiff prays for a declaration that he is the validly adopted son of Gangji and as such entitled to a share in the family properties.
4. Rowji is defendant No. 1. Meghji is defendant No. 2. Defendants Nos. 3 to 5 are the children of defendant No. 1. Defendants Nos. 6 to 8 are his grand-children by his eldest son, defendant No. 3. Defendants Nos. 9 and 10 are the sons of defendant No. 2. Defendant No. 11 is the widow of Pallon. Defendants Nos. 12 to 18 are the children and1 grand-children of Pallon.
5. The pleadings raised various questions of fact. The plaintiff denied that there was a partition in fact between the father and his sons. The defendants by their written statement denied the factum of adoption of the plaintiff. Some time was taken up in discussing the question as to the admissibility of the entries in the books and the releases on the ground that they were not registered, though in fact they were, and allegations of fraud and misrepresentations were made by the plaintiff against the defendants in the matter of procuring the registration of the releases, and the inquiry threatened to go over several weeks. The good sense of counsel in the case, however, prevailed, with the result that the scope of the inquiry was to a very large extent curtailed. The defendants at the very outset admitted the factum of adoption. The plaintiff, after some evidence was led and after some arguments, admitted the partition and gave up his contention as to the admissibility of the releases. He also admitted that each branch dealt with its properties separately and. independently of the others. The main question, which now survives, is, whether the adoption of the plaintiff by defendant No. 19 is valid and binding on defendants Nos. 1 to 18, and, if so, to what extent.
7. Before dealing with that question, however, it would be convenient to clear the ground by dealing with a point raised by the Advocate General based on the fact that the parties to the litigation are Jains. He said that the adoption among the Jains is purely secular, and no question of religious efficacy enters into the validity of it, and, therefore, the primary test emphasized by their Lordships of the Privy Council in the case of Amarendra Mansing v. Sanatan Singh cannot apply to the present case, and the only test would be, whether the adoption interferes with the rights of third parties, and, if it does, it ought to be invalid against his clients. He said that there is no 'giving and taking' among the Jains and finally instanced the cases of adoption of an orphan and a married man, which prevail amongst the Jains. He had to concede, however, that it is well established that in this, Presidency the ordinary Hindu law of adoption is applicable to Jains. That was laid down so far back as in Bhagvandas Tejmal v. Rajmal (1873) 10 B.H.C.R. 241 and followed in later decisions, It is true that the Jains reject the scriptural character of the Vedas, and repudiate the Brahmi-nical doctrines relating to obsequial ceremonies, the performance of shradhas and the offering of oblations for the salvation of the soul of the deceased. Amongst them there is no belief that a son, either by birth or adoption, confers spiritual benefit on the father. They also differ from the Brahminical Hindus in their conduct towards the dead, omitting all obsequies after the corpse is burnt or buried. (See Mulla's Hindu Law, 8th Edn., p. 629).
8. Now, it is true, as later historical researches have shown, that Jainism prevailed in this country long before Brahminism came into existence or held the field, and it is wrong to think that the Jains were originally Hindus and were subsequently converted into Jainism. It is also true that owing to their long association with the Hindus, who formed the majority in the country, the Jains have adopted many of the customs and even ceremonies strictly observed by the Hindus and pertaining to the Brahminical religion. It must follow from this that if a person says that a Jain is bound by a particular custom not prevalent among the Hindus, the burden of proving that custom must be upon him. Unfortunately, or fortunately for the Jains, however, the law in this country has been so well settled that under it the Courts would start with the presumption that the Hindu law of adoption would apply to Jains, and the burden of showing any custom contrary to the ordinary principles of Hindu law of adoption would be on the party who sets it up. Whether this state of things requires a change or not is a matter more for the Jains than for any one else. When this was pointed out to the Advocate General in the course of discussion, he had to concede this position, and, if I understood him rightly, he did not press the point, though he has not given it up. Therefore, it seems to me that the validity of the adoption in this case must be determined upon the ordinary principles of the Hindu law of adoption as applicable to Hindus in this Presidency. The view which I am taking is supported by the observations of Mr. Justice Kumaraswami Sastri in Gettappa v. Eramma I.L.R. (1926) Mad. 228. The head-note is as follows:
It is concluded by the authority of a series of decisions, extending over several years, that the presumption is that the Jains are governed by the ordinary Hindu Law, unless it is shown that by custom a different law prevails among them.
The defendants in this case pleaded a custom under which, they stated, defendant No. 19 could not make a valid adoption, but this contention was also given up by them at the outset and no issue was raised thereon.
9. This brings me to the important question as to whether the adoption of the plaintiff is binding on the defendants. Mr. Desai, to use his own words, says that on a partition a Hindu coparcenary is extinguished only as to those who are parties thereto, but a partition amongst Hindus does not affect the character of the property which remains in the hands of each divided coparcener so far as his natural son or his adopted son is concerned. As I understand Mr. Desai, his whole case is that this coparcenary of Sojpal and his three sons was dormant until the year 1935, although the husband of defendant No. 19 died in 1892, and that it is capable of being revived by an adoption made by defendant No. 19 even after a hundred years, if she is fortunate enough to live so long, and the adopted son will be entitled to share not only in the property which Sojpal retained for his share, but also in the property held or acquired by the sons of Sojpal after the partition, and also, as may conceivably happen, in the property of the great grandsons of Sojpal. He further says that only in cases like Chandra v. Gojarabai I.L.R. (1890) 14 Bom. 463 and Ramkrishna v. Shamrao I.L.R. (1902) 26 Bom. 526 : 4 Bom. L.R. 315. the widow's power is gone and in all other cases she has the power to adopt, which she may exercise at any time, and he cites the instance of an adoption made after seventy years. He further relies on the analogy of an after-born son, a disqualified coparcener or his heir and an absent coparcener to show that though a partition has taken place amongst the members of a joint family, it can be re-opened in these cases. On the other hand, the Advocate General argues that a coparcenary becomes extinct by partition, and once it becomes extinct, the power of the widow of a predeceased coparcener to make an adoption to the deceased coparcerner is gone and can never be revived. Alternatively, he contends that assuming that the power of the widow in this case was not gone and she could adopt to her own husband, that adoption cannot affect the properties held by his clients, This latter contention, it is obvious, is based upon the recent full bench case of Balu, Sakharam v. Lahoo (1936) 39 Bom. L.R. 382.
10. The question thus raised is not covered by any authority, and naturally, therefore,-and quite properly,-arguments have traversed the whole field of Hindu joint family and coparcenary and the law of partition.
11. The first question, therefore, is, what is a Hindu joint family, and what is a Hindu coparcenary?
12. As Mayne points out, originally every Hindu family, and all its property, was not only joint but indivisible. This state of things ceased when partition broke up the family, and when property came to be held in severalty, either as being the share of a divided member, or as being the separate acquisition of one who was still living in a state of union (Mayne's Hindu Law, 10th Edn., p. 337.) Then the learned author points out:
Even where separation, either of person or estate, is established, it can never be more than temporary. The man who has severed his union with his brothers, if he has children, becomes the head of a new joint family, composed of himself and his children, and their issue. And so property, which was the self-acquisition of the first owner, as score as it descends to his heirs becomes their joint property, with all the incidents of that condition.
13. It is well established that a Hindu family with a common ancestor is joint and there can be: no limit to the number of persons of whom it consists, or to the remoteness of their descent from the common ancestor. But a Hindu coparcenary, properly so called, constitutes a much narrower body. Not every member of a joint Hindu family, who can trace descent from a common ancestor, is a coparcener. A coparcener as such is one who, by virtue of relationship, has the right to enjoy and hold the joint property, to restrain the acts of other coparceners in respect of it, to burthen it with his debts, and at his pleasure to enforce its partition. Outside this body there is a fringe of persons who possess inferior rights such as that of maintenance, or who may, under certain contingencies, hope to enter into the coparcenary. A Hindu joint family, therefore, consisting of males and females, constitutes a sort of corporation, some of the members of which are coparceners, that is, persons who on partition would be entitled to demand a share, while others are only entitled to maintenance. But until partition, the property continues to devolve upon the members of the family for the time being by survivorship and not by succession, and no coparcener can say that he is entitled to a definite portion of the property, because until partition his share is liable to be reduced or increased by the birth or death respectively of another coparcener (Mayne, 9th edn., pp. 344-345).
14. It follows from this discussion that the question as to who are coparceners must depend upon the question as to who are the persons who take an interest in the property by birth. The answer will be that they are the persons who offer the funeral cake to the owner of the property, that is to say, the three generations next to the owner in unbroken male descent. Therefore, if a man has living sons, grandsons, and great grandsons, all of these constitute a single coparcenary with himself. Whenever a break of more than three degrees occurs between any holder of the property and the person who claims to take next after that holder, the line ceases in that direction and the survivorship is confined to those collaterals and descendants who are within the limit of three degrees. It was laid down by the Privy Council in Appovier v. Rama Subha Aiyan1 that according to the true notion of an undivided family governed by the Mitakshara Law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property that he, that particular member, has a definite share, one-third or one-fourth. It is also well established that the term 'coparcenary property', in its technical sense, is applied to property which descends upon one person in such a manner that his issue acquire certain rights in it as against him.
15. Their Lordships of the Privy Council observed in Katama Natchiar v. The Rajah of Shivagunga (1863) 9 M.I.A. 543 as follows (p. 611):
There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession.
16. This, then, is a Hindu coparcenary, and these are the rights of the coparceners. It is important to note that a coparcenary is purely a creation of law and it cannot be created by an act of parties, except in the case of an adoption by which a stranger may be introduced into the coparcenary.
17. The next question is, what exactly is meant in Hindu law by partition, and what is the effect of partition? Partition, according to the Mitakshara, is the adjustment into specific portions of diverse rights of different members accruing to the whole of the property. (See Colebrook's Mitakshara, Clause I. Section 1, p. 4).
18. Partition under Hindu Law, therefore, is a new status and it can only arise-where persons, who till then lived in coparcenary, intend or agree that their condition as coparceners shall thenceforth cease. The property ceases to be joint immediately the shares are defined, and thenceforth the parties hold the property as tenants-in-common.
19. The effect of partition under the Mitakshara is the conversion of an indefinite joint right in the whole into a specific right in part. The effect of partition is to dissolve the coparcenary, with the result that the separating members thenceforth hold their respective Shares as their separate property, and the share of each member dying without issue will pass on his death to his heirs. But if a member, while separating from his other coparceners, continues joint with his own male issue, the share allotted to him on partition will in his hands retain the character of coparcenary property as regards his male issue. (See Mulla's Hindu Law, 8th edn., p. 410).
20. Then the rule is that as between different branches the division should be per stirpes, whilst as between sons of the same father it is per capita. (Mitakshara, Clause I, Section 5, p. 2, and Section 3, pp. 1-7).
21. In the face of these principles, which are as old as the hills, it is difficult to appreciate the argument that the nature of the property remains the same after a partition as before it, or that the property remains dormant. True, that qua a divided member and his issue a coparcenary comes into existence, but it is not the coparcenary which subsisted before the partition. It is a new coparcenary; and in that way a partition may at once give rise to several coparcenaries, but these coparcenaries are quite distinct from the larger original coparcenary in existence before the partition but destroyed by the partition. To give a simple illustration, A has four sons,-B, C, D and E. If there is a partition of the property, each one of them, including the father, will get a one-fifth share in the property. But suppose C dies before partition, leaving no heir. In that case, C's widow, if any, will be entitled only to maintenance, and the property will be divided into four shares. If C dies leaving a son, C-1, and a grandson, C-2, then at the partition, it is quite clear, C-1 and C-2 between themselves will get a one-fifth share. Suppose, before partition, E dies, leaving a great grandson. Even if E's great grandson is alive at the date of the partition, he will get nothing. Why? The answer is, because he is beyond the limits of the coparcenary. Now, suppose, B has no issue. He can do what he likes with the share he gets at the partition. He can sell the property; he can make a gift of it; he can destroy it; and his action cannot be controlled by C, D, E or by C-l, C-2, or by the grandson of D, and soon. But, supposing, C dies, and the property is taken by C-1 and C-2, the dealings of C-1 with that part of the property, which comes to his share, can be controlled by C-2, because C-1 and C-2 form a new coparcenary different from the original coparcenary. The result, therefore, is, that when partition takes place between A and his four sons, the coparcenary consisting of A and his four sons is gone, and gone for ever. The property which each one of the sons gets will not be the coparcenary property between themselves but will be their separate property, of which they will be absolute owners, subject to this, that if any one of them has a male issue within the necessary degrees, he will be entitled to control his father's acts with reference to his share because he gets an interest in it by birth. So complete is the idea of the destruction of the original rights of the coparceners in the original coparcenary as the result of a partition amongst them that Sanskrit commentators described partition as a complete annihilation of the joint rights amongst the dividing members. This is very forcibly brought out by Viramitrodaya in his Commentary on the Mitakshara, (paragraph 57), which literally translated is as follows:
We reply on this point as follows : (where there is no partition) there exist ownership rights in each (member of the joint family), on account of the fact that all are equally connected with (the joint properties); but when they come to a partition, among themselves, the ownership rights (of the several co-owners) die (i.e. cease) regarding that which is allotted to each separately just as (ownership of one co-owner) ceases by his death or by his entering the order of Sanyasis. Therefore there is no inconsistency (in the definition of Vibhag propounded by the Mitakshara). What (Mitakshara) means by 'adjustment' (Vyavasthapana) is only this; otherwise it would say that there is production (generation of a right) in a specific portion (of the whole joint property owned). Therefore what is postulated (by the Mitakshara) is) only the cessation (of ownership rights in) other co-owners, and not the production of a different kind of ownership (where there is partition).
According to this text, therefore, the rights of C as against B in the illustration which I have given, or vice versa, are annihilated to the same extent as they would be annihilated, as, for instance, if B dies or becomes a Sanyasi and renounces the world. In my opinion, therefore, on the partition in 1915 the coparcenary, which then consisted of Sojpal and his three sons, became completely extinct.
22. If so, the question is, whether it is open to defendant No. 19 to adopt a son to her deceased husband Gangji. The questions as to the power of a widow of a predeceased coparcener to adopt a son to him, and the validity of such an adoption after the property had come to the last surviving coparcener and on his death had been inherited by his widow or by any other heirs of him, were considered in the recent full bench decision in Balu Sakharam v. Lahoo (1936) 39 Bom. L.R. 382., to which I was a party, and, it was pointed out there that all the Privy Council cases, which were then cited in support of the contention that such an adoption was valid and binding upon the heir of the last surviving coparcener, were cases where the coparcenary was subsisting, and that the only case, in which the question was considered and it was found that the coparcenary had become extinct, was the case of Chandra v. Gojarabai I.L.R. (1890) Bom. 463. The full bench held that the case of Chandra v. Gojarabai was not overruled by any of the recent decisions of their Lordships of the Privy Council, and that it still was good law. If, therefore, on the extinction of a coparcenary by reason of the property devolving by inheritance on the heir of the last surviving coparcener, an adoption made by the widow of a predeceased coparcener is invalid and cannot affect that property, it is difficult to hold that, on the extinction of a coparcenary by a partition, the widow of a coparcener, who had died long before the partition, can make a valid adoption. A coparcenary can go on for ever. It can only come to an end either by partition or by the deaths of all the coparceners, and on principle I am unable to see what difference there is between the case of the extinction of a coparcenary by reason of the deaths of all the coparceners or the case of the extinction of a coparcenary by partition among themselves qua the divided members inter se. If the answer-and that seems to me to be the only obvious answer-is that rights of third parties come in in the case of the extinction of a coparcenary on the property devolving by inheritance upon the heir of the last surviving coparcener, that also holds good in the case of a coparcenary extinguished by partition. Supposing in the illustration, which I have given, E dies leaving; E-1, the widow of his grandson ; and after his death, A, B, C and D separate from each other. Provision for E-1's maintenance will have to be made at the partition. Now suppose that after the partition, B dies leaving his widow B-1. The latter will take all the property which came to B on partition. Now, if after this, E-1 adopts to her husband, can the adopted son get any share in the property held by B-1? I think not. B, so far as his branch is concerned, is the last surviving coparcener and would be a collateral of the boy adopted by E-1. I know of no authority or principle which would entitle the adopted son of E-1 to go against the property held by B-1. I am only giving this illustration to show the extent to which we are driven, if it is to be held that partition does not extinguish the original coparcenery existing between the parties.
23. I have said that there is no case directly bearing on this point. But there is support for the view, which I am taking, in what is no doubt a dictum, but the dictum of one of the most eminent Judges this Court has ever seen. In Chandra v. Gojarabai I.L.R. (1890) 14 Bom. 463 Mr. Justice Telang says (p. 471):
When the inheritance devolved from Nana upon his widow Gojarabai, it devolved, not by succession, as in an undivided family, but strictly by inheritance, as if Nana had been a separated house-holder. Strictly speaking,'(and that is what I refer to),' according to the view taken by our Courts, there was at Nana's death no undivided family remaining into which an adopted son could be admitted by virtue of his adoption.
To the same effect are the observations by the learned authors of West and Bhler, which I have cited in my judgment in Balu Sakharam v. Lahoo (1936) 39 Bom. L.R. 382. The passage is as follows (p. 438):
A right in possession is kept alive by the widow's constant capacity to adopt, so as to blend an additional element retrospectively with the united family, but a mere possibility once extinguished cannot be revived. Thus adoption in a separated branch cannot divest the estate which the law gave to the then nearest collateral, and which has passed unshared to him who has it. But within a group of united brethren the widow of one may adopt so as to divest an estate wholly or in part.
24. It follows from these observations that in 1935, when the adoption was made, there was no undivided family into which the adopted son of Gangji could be admitted by virtue of his adoption. Apart from direct authority, therefore, I am of opinion that the adoption in this case is not valid and not binding on the defendants.
25. But, assuming that the principle of Amarendra's case applies to the facts of this case, and that defendant No. 19 had an unlimited right of adoption, which she could exercise, even after several generations, as Mr. Desai contends, if she survived so long, it seems to me that, on the principle laid down in Balu Sakharam v. Lahoo, whatever my own view may be on this part of the judgment in that case, the adoption cannot affect the property in the hands of defendants Nos. 1 to 18.
26. That there are, and there must be, limits to the power of a widow to adopt cannot be challenged, and indeed has been clearly recognized by their Lordships of the Privy Council in numerous decisions. It is argued, as it was argued in the full bench case, that those limits are only when property passes by inheritance to the heir of the last surviving coparcener, or in a case like the one in Ramkrishna v. Shamrao I.L.R. (1902) 26 Bom. 526 : 4 Bom. L.R. 315. But I am unable to find anything in any of the Privy Council decisions which would indicate that in their, Lordships' view those are the only limits to the exercise of the power of a widow to adopt. On the other hand, the language used in some of these cases, notably in the cases of Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1885) 10 M.I.A. 279, Pudma Coomari Debi v. Court of Wards , and Thayammal and Kuttisami Aiyan v. Venkatarama Aiyam . as also in Amarendra Mansing v. Sanatan Singh , is so explicit that it is too late now to contend, in my humble opinion, that there is no bar of limitation to the exercise of the power of a Hindu widow to adopt. My views on this point are set out in my judgment in Balu Sakharam v. Lahoo. Since then I have had to deal with numerous cases of adoption and to consider the whole law of adoption in different and varied circumstances and on varied facts, and I still adhere to what I have there said on this subject.
27. Mr. Desai, in the course of his argument, relied upon certain analogies, and he instanced the case of an after-born son, the case of a disqualified coparcener and of the son of such a disqualified coparcener, and the case of an absent member, that is to say, the case of a member who was absent when a partition was effected.
28. I do not propose to deal with these analogies in detail, but it may be pointed out that in the case of an after-born son special rights are given, to him by virtue of special texts. Under the Hindu Law when a partition is effected by the father as between him and his sons, a son who was begotten at the time of partition but born subsequent to it is entitled to reopen the partition and to have a share allotted to him. But different considerations arise where a son was both begotten and born after partition. In such a case where the father has, at the time of partition, reserved a share for himself, the after-born son is not entitled to have the partition re-opened, but in lieu thereof is exclusively entitled after the father's death to the father's share as well as to his self-acquired or separate property. If, however, the father has divided the whole property among his sons without retaining a share for himself, a son begotten as well as born after the partition is entitled to have the partition reopened and to have a share allotted to him not only in the property as it stood at the date of the partition but also in the accretions made thereto. These are the principles of Hindu law. Apart from the fact, as contended by the Advocate General, that in this case there is no scope for the application of the analogy of an after-born son as the plaintiff is not a son of Sojpal, nor a son of any of the coparceners, but the son of Gangji who had died before partition, it seems to me that Mr. Desai's argument in favour of the claim which he makes on behalf of the plaintiff does not find support from the application of this analogy.
29. Then, coming to the case of a disqualified member of a joint family, he is, but for his disqualification, a coparcener. Under the texts which deal with the subject, he cannot take a share in the property when it is partitioned. But, as Mayne points out,
such incapacity is purely personal, and does not attach to their legitimate issue. Its effect is to let in the next heir, precisely as if the incapacitated person were then dead. But that heir must claim upon his own merits, and does not step into his father's place.if the defect be removed at a period subsequent to partition, the right to share arises in the same manner as, or upon the analogy of the right of a son born after partition. How this analogy is to be worked out is not so clear. If the removal of the defect is to be treated as a new birth at the time of such removal, then the principles previously laid down would apply. If the partition took place during the life of the father, and one of the sons were then incapable, he would take no share. But if his defect were afterwards removed, he would inherit his father's share.'(See Mayne's Hindu Law, 9th Edn., pp. 699, 700).
30. Then Mayne further proceeds to observe:
If, however, the partition took place after the father's death, and one of the brothers was excluded as being incapable, and was afterwards cured, his cure could only be treated as a new birth, so as to give him any practical rights, by the further fiction that he was in his mother's womb at the time of the partition. If this analogy could be applied, he would be entitled to have the division opened up again, and a new distribution made for his benefit. But that would be rather a violent fiction to introduce, in a case where the incapacity was removed, possibly many years after new rights had been created by the division, and acted upon. Suppose, however, that the incapable heir was never cured, but had a son who was capable of inheriting. If the son was actually born, or was in the womb, at the time of the partition, he would be entitled to a share, if sufficiently near of kin. But if he was neither born nor conceived at that time, he could not claim to have the partition re-opened. He could only claim to succeed as heir to the share taken by his grandfather; and if the partition took place between the brothers, he could claim nothing more than maintenance. (pp. 700-701).
31. The case of an absent member presents no difficulty. A coparcener is entitled to a share wherever he may be, and if at the time of partition no share was reserved for a person who was away from his family, then the separating coparcener must take the risk of it, and the absent coparcener on coming to know of the partition would be entitled to ask that it should be reopened, and his proper share be allotted to him.
32. I do not propose to refer to the cases which have been cited at the bar. As I have pointed out, there is no case directly bearing on the point, though there are two or three cases which call for notice.
33. Mr. Desai relies on what, he concedes, is a dictum in Krishna v. Sami.I.L.R. (1885) Mad. 64 .I respectfully dissent from the view there expressed, and there is nothing in Sri Raghunadha v. Sri Brozo Kishoro , which is referred to, to support it.
34. Then Mr. Desai also refers to Mallappa v. Hanmappa I.L.R. (1919) 44 Bom. 29 303 : 22 Bom. L.R. 203, which is easily intelligible. That was the case of a mother succeeding as an heir to an unmarried son, and in such a case the adoption is recognized by all the decisions in this Court, though as an exception. In the ratio decidendi Sir Norman Macleod says in that case that in making an adoption the mother was not divesting the estate vested in anybody but divesting the estate vested in her as an heir of her son.
35. Then there remain two cases. One is Harigir v. Anand Bharathi , The facts in that case are somewhat complicated, but it is clear that the case falls within the general principles. At the date the adoption was made, Zingar Bharati, the father, and the widow of his son Jairam lived together. Ram Krishna, the other son, had separated before1 that. So that the coparcenary, which originally consisted of the father Zingar and the two sons, Ram Krishna and Jairam, still subsisted, and thereafter Jairam's widow made an adoption, and the adopted son's son brought a suit as a reversioner to set aside certain alienations made by the widow of Ram Krishna. There is nothing in that case, therefore, which militates against the principles to which I have referred.
36. Then, there is an unreported decision of a division bench of this Court, in Chanbasappa v. Huchappa : AIR1939Bom47 , on which Mr. Desai relies. There were two branches there, one being represented by defendants Nos. 1, 2 and 4 and the other branch consisted of defendant No. 3 and the widow of his father's brother Parappa, who had died in 1923. In 1932, there was a partition between the two branches, and as the result thereof defendant No. 3 took a half share in the property. In 1933, Parappa's widow adopted the plaintiff, and it was held that the adoption was valid against defendant No. 3 and the plaintiff was entitled to a half share in the property held by defendant No. 3 as joint family property. It is clear on these facts that the coparcenary, of which defendant No. 3 was the last surviving coparcener, was alive and subsisting, and that is what the learned Chief Justice held. How this decision supports the plaintiff's case, I am unable to see. The case falls within the principles laid down in Balu Sakharam v. Lahoo and Chandra v. Gojarabai.
In the result, therefore, the suit must be dismissed with costs. The costs will be paid by the next friend.