1. This appeal arises from a suit instituted by the plaintiff Sangayya Chennayya Ullagaddimath to recover possession with mesne profits, by partition, in his capacity as the adopted son of one Chennayya, of his share in the properties specified in the plaint, and for an account of the family business consisting of an arms and ammunition shop, The contesting defendants are Chennayya's brother Mahalingayya and the letter's son. The properties in dispute were at one time part of the joint family properties of one Chanbasappayya and his descendants. The relationship of the parties to the said Chanbasappayya will be apparent from the subjoined pedigree:-
(Deft. No. 3) (Deft. No. 4)
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Gangadharayya Chanayya=Basawwa Chanbasayya Mahalinga
(Deft No. 1)
(Plantiff, adopted son) (Deft No. 2)
It is common ground that after the death of the ancestor Chanbasappayya the family property, with the exception of some fields, was divided between the two branches represented by his sons Chanbasayya and Basappayya. After the adoption of Basappayya's son Gangadharayya into the other branch, the only surviving members in Basappayya's branch were his sons Chanayya, Chanbasayya and Mahalingayya. Chanayya died on July 29, 1925, leaving a widow Basawwa. Chanbasayya died unmarried on or about December 11, 1933. On his death the only surviving male coparcener in the branch of Basappayya was Mahalingayya, defendant No. 1. The only other member of the joint family was Basawwa, the widow of Chanayya. Basawwa adopted the plaintiff on August 5, 1935, and upon that adoption this suit was instituted by him on August 2, 1939, for claiming a share in the property in the hands of defendant No. 1 and his son, defendant No. 2, who was born in 1936.
2. It is necessary to note that Chanbasayya was not quite normal in mind. On or about April 13, 1933, he agreed to relinquish his share in favour of his brother Mahalingayya who had applied to the Mamlatdar to delete Chanbasayya's name from the records as joint owner of the family property. Chanbasayya appeared before the Mamlatdar and stated his reasons for accepting the suggestion of his brother (vide exhibit 92). The effect of that statement to the Mamlatdar is the subject of controversy in this appeal and will be dealt with in considering Mahalingayya's contention founded upon that relinquishment. Mahalingayya denied the factum of adoption of the plaintiff and further contended that that adoption, even if proved, did not operate to create an interest in the property in dispute in the adopted son, inasmuch as the coparcenary had terminated upon the alleged relinquishment 'under a family arrangement', prior to the plaintiff's adoption, of Chanbasayya's entire interest in the joint family estate. In regard to the claim for accounts of the arms and ammunition shop, it was urged that it was the individual business of Mahalingayya, he having started it out of his private funds, and alternatively that, if it were held to be family property, the plaintiff must be made to undertake the obligation to pay his proportionate share of the debt borrowed on a mortgage of certain lands by Mahalingayya to carry on the shop's business. Lastly it was contended that as a result of the alleged relinquishment of Chanbasayya's share in the family property, that share became the separate property of Mahalingayya in whose favour the relinquishment was made and therefore would not be liable to partition in the suit by the plaintiff.
3. The learned trial Judge has disallowed all the contentions of the defendants and has passed a decree declaring the plaintiff to be the adopted son of Channayya, and to be entitled to half share in the properties described in the plaint, except the property mentioned in Clause (H) of paragraph 2 of the plaint, which was owned in common between the two branches of Chanbasayya and Basappayya. An order was accordingly made for an equitable partition, and a commissioner was appointed for the purpose. It was held that the arms shop was joint family business in which the plaintiff was entitled to a share, and that the mortgage effected by Mahalingayya subsequent to the adoption of the plaintiff on September 16, 1936, was not. binding on him in the absence of proof of legal necessity. Against that decree, which is described as a preliminary decree, the first defendant Mahalingayya has filed this appeal.
4. On the question of the status of the plaintiff Mr. Desai for the appellant was not prepared to dispute the correctness of the finding of the trial Court that the plaintiff's adoption by Chanayya's widow was established. That finding is based upon the recorded evidence, which is complete and reliable. There is the evidence of the priest who officiated at the ceremony, and the testimony of the widow who took the boy in adoption. There were other witnesses present, including the natural mother of the plaintiff, who according to the evidence acted along with her husband in giving their son to the adoptive mother. There is also documentary evidence consisting of a registered deed of adoption, a photograph of the persons assembled at the ceremony, and an announcement of the adoption published in the Bombay Government Gazette of February 20, 1936. That evidence is indeed sufficient to establish the adoption, and we therefore accept the finding of the learned trial Judge in that respect.
5. It is now well established that in this Presidency a Hindu widow, unless she is expressly forbidden by her husband to adopt a son to him, can make an adoption, notwithstanding the fact that the husband died undivided, without obtaining the consent of the surviving coparcener or coparceners [see Bhimabai v. Guruathgouda Khandappagouda (1932) L.R. 60 IndAp 25. In regard to the limitations to that right I might refer to the following propositions laid down by a full bench of this Court in Balu Sakharam v. Lahoo (1936) 39 Bom. L.R. 382.where a coparcenery exists at the date of the adoption, the adopted son becomes a member of the coparcenary, and takes his share in the joint property accordingly,...where the adoption takes place after the termination of the coparcenery by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a predeceased coparcener has not the effect of reviving the coparcenery, and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her.
6. Mr. Desai was prepared to argue, if permitted, that a coparcenary may be considered as extinct notwithstanding that there is a single surviving coparcener of the family alive. Naturally he could not be permitted to do that in view of the settled law on the point. The case of Bhimabai v. Gurunathgauda Khandappagauda is a direct authority against Mr. Desai's contention. The coparcenary subsists during the lifetime of the last surviving coparcener, and as long as the coparcenary subsists, the widow's right to adopt in that coparcenary cannot be denied. In a recent decision (Sanveerangouda v. Basangouda (1938) 41 Bom. L.R. 561) it was held that so long as there was a simple coparcener alive, the coparcenary could not be said to be extinct (see also Hirachand v. Rowji Sojpal (1938) 41 Bom. L.R. 760
7. Mr. Desai has contended that at least under the terms of the deed of relinquishment or renunciation, if the document, exhibit 92, could be so described, the coparcenary must be deemed to have been extinct, and he has attempted to sustain that view by reference to the case of Balkrishna Trimbak Tendulkar v. Savitribai I.L.R. (1878) 3 Bom. 54, to which I shall presently refer. The document in question upon whose construction the controversy centres, consists principally of an application by Chanbasayya addressed to the City Survey Officer of Hubli for mutation of names consequent upon the readiness of Chanbasayya to relinquish his interest in favour of his brother. The application makes reference in the first instance to the entry in the Government record relating to the property, and mentions the reasons why mutation should be ordered:-
The names of Chanbasayya Bassayya Ullagaddimath and Mahalingayya Basayya Ullagaddimath are entered in the City Survey Register for the City Survey Numbers mentioned below. But Chanbasayya Basayya Ullagaddimath is willing to give up his right over his entire property to me of his own accord and the said Chanbasayya Basayya Ullagaddimath is unfit to manage the family affairs. I am managing the family affairs from the beginning and now also. Therefore the name of Chanbasayya Basayya Ullagaddimath should be deleted for the below mentioned property and my name only should be made permanent.
Then follows the description of the property shown in Clauses (A) to (H) of paragraph 2 of the plaint. Below that application is recorded the statement by the Mamlatdar of Chanbasayya Basayya as follows:-
City Survey Nos. 2412, 2413, 2383, 2384, 2385, 2610 and 1013 and 6 in Ullagaddi Street of Hubli Town stand in the joint names of myself and my brother Mahalingayya Basayya Ullagaddimath. But I have relinquished all my rights over the said properties in my younger brother's favour, because sometimes I lose my head and am not in senses. My brother is an educated man; he is providing me for maintenance and clothes, and I have great love and regard for him, and I am confident that he will maintain me till the last. For this fact I have given up all my rights over the said properties of my own will in his name. Therefore may it be known that my name in the said City Survey Numbers should be deleted and that of my brother Mahalingayya Basayya Ullagaddimath alone be entered. Dated 13th April 1933.
Upon that statement it appears that the Property Register was amended (vide exhibit 93), and the following note made therein:-
Chanbasayya Basayya relinquished his right over the properties to the present owner by his consent. So his name is deleted from this number and also from Nos.
2384, 2385, 2412, 2413, 2610, 1013 6
_____________ ________________ and ___
III III II.
There can be no doubt whatsoever that a renunciation of his interest in the family property can be effected by a coparcener by an expression of an intention to that effect, and no formality is necessary. Mr. Desai contends that, assuming that the document is a renunciation, it disrupts the community of property, that instead of community of property between the two brothers there is substituted the sole ownership of the person in whose favour the interest is renounced, and that therefore inasmuch as community of ownership is put an end to, the coparcenary, which must postulate such ownership, must be regarded as extinct. In the case of Balkrishna v. Savitribai the Court was considering the effect of a Hindu son relinquishing for a sum of money his share in the property of his father, and agreeing not to claim it during or after his father's lifetime, and it was held that such relinquishment had the effect of plating him in the position of a separated son, although it might not amount to disherison. The result was, it was held, that upon a contest between the son and his widowed mother, the son, notwithstanding the fact that he was separated, would still inherit the father's estate in preference to his widow, The case is clearly distinguishable on the facts. The father willingly effected a partition, and instead of handing over the share in the property to the son, gave him its money value. That undoubtedly in effect constituted severance of their joint status. The question whether that would be the effect in this case must depend upon the facts and circumstances attending the transaction. The question is largely of intention to be gathered upon the interpretation of the documents affecting the relationship between the parties, and no hard and fast rule can be laid down.
8. All that Mahalingayya has claimed in his application is that the name of his brother Chanbasayya should be deleted from the Records of Property in the City Survey Office in so far as those records related to the houses of the family. That claim is made on two grounds: (1) the willingness of Chanbasayya to give up his right over the entire property in favour of the applicant, namely, Mahalingayya, and (2) the unfitness of Chanbasayya to manage the family affairs. In reply to the Mamlatdar's question Chanbasayya agreed that he had relinquished all his rights over the said property in favour of his younger brother. The reasons given for that relinquishment were that on occasions he lost his head and his senses, that his brother was an educated man, that the latter was providing for his maintenance and clothing, and that he had faith in the fact that the brother would continue to do so till the last. He also says that he has love and regard for him. Then he proceeds to sum up as follows:-'In consideration of those facts I have given up all my rights over the said property of my own will in his name.' Apparently the renunciation is for a consideration, and Mr. Desai's contention is that that consideration brings the present case within Balkrishna v. Savitribai. As I have said the facts of that case are clearly distinguishable. Here apparently Chanbasayya believed that he would be allowed to remain on part of the property which he undertook to relinquish in favour of his brother, with a condition as to the latter's making provision for his maintenance. The statement 'for this fact I have given up all my rights, over the said properties', when read with the reasons for the relinquishment, means, in our opinion, no more than a surrender of the rights of management, and not an absolute surrender of the entire interest in the estate. In Balkrishna v. Savitribai the son had agreed not to claim any interest in the property when he was paid the value of his share.
9. The effect of a surrender or relinquishment by a coparcener in the family was considered by the Privy Council in Alluri Venkatapathi Raju v. Dantuluri Venkatanarasimha Raju and it was held that a coparcener's renunciation merely extinguishes his interest in the estate, but does not affect the status of the remaining members quoad the family property, and they continue to be coparceners as before, and the only effect of renunciation is to reduce the number of persons to whom shares would be allotted if and when a division of the estate takes place. Whether that would be the effect where renunciation is by one of the two coparceners in favour of the other need not be considered, for, in our opinion, Chanbasayya had not effected a complete renunciation of his entire interest in the present case, and we therefore find it difficult to agree that there was a severance of interest between the two brothers which would have the effect of terminating the coparcenary. We were referred to a statement in Mayne's Hindu Law; (10th edn., at page 565), where it is stated that separation of a coparcener may be effected by renunciation of his interest in the family property. The question whether the two brothers really intended to separate would depend not merely on the act of formal renunciation but upon their intention as gathered from their conduct. There is nothing to suggest that upon the alleged relinquishment the relinquishing coparcener ceased to enjoy the profits of the estate. The evidence suggests that Chanbasayya continued to live as before in the family house, but did not take any part in its management.
10. The question as to the effect of renunciation was recently considered by Mr. Justice N.J. Wadia (sitting singly) in Ramchandra v. Shankar (1942) S.A. No. 898 of 1940, decided by N.J. Wadia J., on June 29, 1942 (Unrep.), where, after referring to the Privy Council case in Alluri Venkatapathi Raju v. Dantulri Venkatanarasimha Raju, he observed that 'the question whether in any particular case the document passed was a mere deed of relinquishment or a deed of partition was one to be decided on the facts and circumstances of each case.' There reference was also made to Lakshmi Achi v. Naraynasami Naiker I.L.R. (1929) Mad. 188 which has been relied upon for the appellant. There out of two members of the joint family, one sold his share in some of the family properties, not to a stranger, but to the other member, and it was held that the transferor thereafter became divided from the transferee in respect of these properties without any right of survivorship thereto. Mr. Justice N.J. Wadia has pointed out that that view was dissented from in a later judgment of the same High Court in Ramasubbaraya v. Ganapathiraju  Mad. 405. In that case it was held that where a member of a joint Hindu family consisting of himself and his son purports to alienate not his share in the items of the joint family property but the entirety of those items including his son's shares therein, as the father and managing member, for family necessity, no question of any severance of status will result from such alienations. That case goes even further and says that an alienation by a member of a joint Hindu family of his share in the whole of the joint family property or in any part thereof does not sever his status from the family and make him a divided member even in respect of the property alienated. It is said that the effect would be different if the alienee is one of the members of the coparcenary. That again must rest, in our opinion, upon the nature of the transaction and no general rule can be laid down in that respect. Assuming that the document exhibit 92 is a renunciation, and the person renouncing had severed his connection with the family, it will not help the defendants, for, in our view, such renunciation, apart from extinguishing the interest of the renouncing member, will leave the coparcenary itself intact.
11. In the above connection I might refer to Sanveerangouda v. Basangouda. In that case the undivided Hindu family consisted of two persons, one the donor and the other his natural brother who had become his cousin by adoption. The step-mother of the donor after the latter's death adopted a boy who sued to recover a half share in the family property from the donee. It was held that so long as there was a single coparcener (in this case the donee) left, the coparcenary Could not be considered to be extinguished, and that the plaintiff having been validly adopted was entitled to a share in the joint family property. On the question of the effect of the gift it was observed that in the absence of express or implied intention to separate evidenced by the deed of gift, the gift or renunciation by the donor in favour of the donee could at the most be treated as a renunciation by the donor of his share in the coparcenary in favour of the rest of the coparcenary represented by the donee; but it could not be regarded as changing the nature of the property so gifted or renounced in favour of the donee and converting it into separate property. If I may say so with respect, that view seems to be correct and is consistent with the observations of the Judicial Committee in Alluri Venkatapathi Raju v. Dantuluri Venkatanarasinha Raju. Upon the assumption, therefore, that the document exhibit 92 constituted a renunciation by Chanbasayya, that would not affect the character of the property in the hands of Mahalingayya or the status of the brothers in the family. In our view, it would not operate to extinguish the coparcenary, and prima facie upon his adoption the plaintiff would be entitled to an interest in the immoveable property of the family.
12. But Mr. Desai has contended that assuming that the coparcenary had not terminated, nevertheless the property of the coparcenary would at the time of the adoption merely consist of the half share of Mahalingayya in the family property, for the moiety of Chanbasayya which he had surrendered could be regarded as the personal or separate property of the person in whose favour it was surrendered. He says that it is possible to regard the transaction as evidencing a gift of Chanbasayya's share to his brother, and that therefore it must be regarded as a separate estate of the donee Mahalingayya. As I have said, the question would depend upon the construction of the document evidencing the transaction. It cannot be disputed in view of the decision in Gundayya v. Shriniwas : AIR1937Bom51 , that in this Presidency where a Hindu coparcenary consists of two members only, it is open to one of them with mutual concurrence to gift his share in the undivided property to the other coparcener. Apart from textual authority there is no other decision to the contrary. No authority has been cited in support of the view, which Mr. Madbhavi for the respondent pressed on us, that no gift of the joint family property can be made by a coparcener during the subsistence of the coparcenary. He says that the subject matter of a gift could only be restricted under the Hindu law to separate or self-acquired property, and he has cited Sir Dinshah Mulla's Hindu Law (9th ed., paragraph 357, at page 423). But the same learned author has in paragraph 258, at page 293, stated that according to the Mitakshara law a coparcener may, however, make a gift of his interest with the consent of the other coparceners. That is consistent with the view taken in Gundayya v. Shrinivas. Mr. Desai's argument is that if an intention is manifested by the document to create a gift in favour of Mahalingayya, then the effect of the transaction was to make the estate the property of Mahalingayya instead of the two brothers, and that too as effectively as in the case of an ordinary partition between the brothers as if that particular property had fallen to the lot of Mahalingayya in whose favour the renunciation was made [Periasami v. Periasami: Ramasami Chetti v. Periasami: Kosalarama Pillai v. Periasami ]. I have already referred to the document (exhibit 92), and, in the view we take, it is not susceptible of the construction that Chanbasayya intended to make an absolute gift in favour of Mahalingayya. A relinquishment of that type could not be regarded even as a gift with a condition, Such a construction in the view we take is opposed to the tenor of the instrument. The proper view to take of the document is that it is a relinquishment of the right of possession and management in favour of the brother, Even on the assumption that a gift could be spelt out from that document, the question that must arise is whether it will alter the nature of the property the subject matter of the gift. In Sanveerangouda v. Basangouda a similar point was considered, and it was held that the gift or renunciation by the donor in favour of the donee could at the most be treated as a renunciation by the donor of his share in the coparcenary in favour of the rest, but it could not be regarded as changing the nature of the property so gifted or renounced in favour of the donee and converting it into separate property. The mere renunciation without more could, in the view we take, not be regarded as altering the nature of the property. In fact, in our view, the expression of the belief of Chanbasayya that he would be maintained and clothed and that the donee would continue to maintain him till the last is suggestive of an intention to retain some interest in the family property and to continue as a member of the coparcenary. In that view of the matter it is difficult to regard the property, the subject-matter of the renunciation, as the separate property of Mahalingayya. Consequently the plaintiff will be entitled to claim his share in the entire property.
13. There then remain the two questions of detail in regard to the directions in the decree. The learned trial Judge has held that the plaintiff was entitled to an account of the profits of the business of arms and ammunition. It was the case of Mahalingayya that the shop was started by him, that it was formerly conducted by Gangadharayya, and that he purchased the stock-in-trade from his heirs for Rs. 1,600. In his evidence he says:-
That is the starting capital. I raised the money by borrowing. The family had debts to the extent of Rs. 150. It was from Chanayya Umnabadi that I borrowed Rs. 1,000 on a promissory note. I raised the remaining sum of Rs. 600 by selling the ornaments belonging to my wife and mother.
The learned Judge did not accept that statement, first, because the creditor Channayya who is alive was not called as a witness to prove that he advanced Rs. 1,000 for the purpose indicated, secondly, because the sale of the ornaments was not independently proved, and, lastly, because the accounts of the business were not submitted for scrutiny of the Court and the plaintiff. Mr. Desai has stated that Channayya was not examined through inadvertence, and that he is prepared now to prove, if an opportunity were given to him, that the debt in fact was borrowed and that also a further sum of Rs. 2,000 was borrowed from the fifth defendant on a mortgage for the business of the shop. It is now too late in the day to claim, on account of either negligence or inadvertence, a fresh opportunity to supply the defect in the record. As the record stands, we think the learned trial Judge's conclusion is correct. It has not been satisfactorily shown that the shop belonged to Gangadharayya. Certain tippans were made, it is said, to show the borrowings and the purpose thereof. But even the tippans consisting of bits of paper evidencing those transactions were not put on the record. We therefore agree with the learned trial Judge that accounts must be rendered of the shop in question. It is said that in rendering an account of the shop a part of the debt of Rs. 2,000 due on the mortgage executed on September 16, 1936, should be debited to the plaintiff in proportion to his share. As I have observed, that mortgage was executed after the adoption, and in order to entitle the defendant to a contribution of the amount of the debt it must be established that the amount was borrowed in the ordinary course of the business and for its purpose. That would constitute legal necessity in law so as to render the adopted son liable to contribute his share towards the redemption of that loan. The remarks in regard to the failure to prove the separate acquisition of the shop by the defendant would apply to this claim also, for no accounts have been produced and no satisfactory evidence has been led to show that any part of that sum was utilized for the purpose of that business. In that view of the matter the claim in respect to the mortgage must also fail.
14. In view of the above we think the decree of the lower Court is correct and must be maintained, and this appeal dismissed with costs of respondent No. 1, who alone has appeared.