1. This Second Appeal arises out ot L. C. Suit No. 27 of 1953 on the file of the Civil Judge, Junior Division, Haveri, The present first respondent had filed that suit for partition and possession of his half share in the suit schedule properties. The plaintiff had claimed that he was the adopted son of one Gurushiddayya who had died in the year 1919. He had alleged that Jambawa (defendant No. 6) the widow of Gurushiddayya had taken him in adoption on 20th of October 1950. Defendant No. 1 was the grandson ot Gurushiddayya's brother Charantayya., Defendant 1's father and grandfather were both dead. Defendants 2 and 3 were the sons of the first defendant.
Under the sale deed Ex. 82 dated 16-12-1948, defendant 1 had sold one of the suit lands to defendant 4 for Rs. 1800/-: under the sale deed Ex. 81, dated 17-12-1948, defendant 1 had alienated some of the suit properties, namely, S. No. 567 and three plots in S. No. 568 in favour of defendant No. 5 for a sum of Rs. 1300/-. The alienees, namely the defendants 4 and 5 had denied the alleged adoption; they had pleaded that the alienations in their favour were justified by legal necessity and were for the benefit of the family; they had also pleaded that they had effected vast improvements.
The trial Court held that the adoption of the plaintiff had been proved; it held that the alienations in favour of defendants 4 and 5 were not for legal necessity and that they were not for the benefit of the family; it also negatived the contention of the defendants 4 and 5 that they had effected vast improvements; consequently, the trial Court passed a decree in favour of the plaintiff for partition and possession of his half share in the suit schedule properties.
Defendants 4 and 5 appealed to the District Judge of Dharwar. The learned District Judge confirmed the decree of the trial Court and dismissed the appeal by the defendants 4 and 5. It is against these decisions, that the defendants 4 and 5 have now come up in Second Appeal.
2. The appellants are concluded by the concurrent findings of the Courts below, on the questions of fact, namely that the plaintiff is the adopted son of Gurushiddayya and that defendants 4 and 5 have not proved the improvements alleged by them. Sri Datar the learned Advocate for the appellants has urged only the following points :
1. That the alienations in favour of defendants 4 and 5, were for the benefit of the family;
2. that the plaintiff is not entitled to challenge the alienations which had taken place prior to the date of his adoption; and
3. that even if the plaintiff has the right to challenge these alienations, the. defendants 4 and 5 should be put in possession of the share of their vendor in the properties alienated to them.
3. So far as the first point is concerned, it may be stated at once that there does not appear to be any substance in it. According to the recitals -in the sale deeds Exs. 81 and 82, the reasons for the sale of these properties were that as these lands were situated at some distance from the village, it was difficult to manage them properly, that they were not yielding any income and that the defendant No. 1 was put to the necessity of paying the assessment of the lands from out of his own pocket.
As pointed out by the learned District Judge, these reasons cannot constitute either legal necessity or benefit to the family. The first defendant appears to be a fairly young man and the difficulty involved in his attending to the cultivation of these lands which were at some small distance from the village, would not be a sufficient excuse for the sale of the family lands; nor could the fact that he had to pay kandayam for these lands, justify the alienation of the same; when he neglected the cultivation of these lands, he could not expect a proper income therefrom. None of these circumstances, either singly or cumulatively, would constitute either legal necessity or benefit to the family, MO as to justify the alienations. Therefore, the alienees in the present case, cannot successfully resist the plaintiff's claim on the ground that the alienations were either for legal necessity or for family benefit
4. The next contention of Sri Datar is that the alienations of the properties having taken place prior to the plaintiff's adoption, the plaintiff would not be entitled to claim any share therein; it is argued that the plaintiff would be entitled to claim a share only in those properties which the family possessed at the time of the institution of the plaintiff's suit for partition. On the other hand, it is argued by Sri Javali the learned Advocate for the plaintiff-respondent that in view of the fact that the alienations were not for legal necessity or family benefit, the plaintiff's share in these properties as on the date of the death of his adoptive father would remain unaffected by the alienations.
It appears to me that an extreme position has been taken in either of these arguments; it is difficult to give unqualified acceptance to either contention. Whether an alienation made prior to the adoption, though not for legal necessity or family benefit, would be binding on the adopted son depends upon the question as to whether the alienor had the legal competence, at that time, to make the alienation. To the extent to which the alienation was lawful and valid at the time when it was made, it cannot be affected by the subsequent adoption.
5. According to the Hindu Law as it prevails in Bombay Area, (i.e., that portion of the territory which has come to Mysore State from the former Bombay State), it is open to a coparcener to alienate his undivided interest by way of sale, etc, The alienation may be of his undivided interest in all the family properties or in only some of them. It is not necessary that in order to hn lawful, such an alienation must be supported by legal necessity or family benefit.
Therefore, to the extent of his own interest in these properties, the first defendant had the competency to make a valid alienation, in favour of the defendants 4 and 5. The circumstance that his two minor sons were in existence at that time, would, in no way, affect the first defendant's power to sell his own interest in the properties. It may also be stated, that on a perusal of Exs. 81 and 82, it is found that the first defendant has not purported either to sell the interest of his sons or to execute the documents as their guardian.
It is proper to construe these two documents as conveying only the first defendant's interest in these properties; to the extent to which these two documents convey only the interest of the first defendant in the said properties, the sales were valid. It is pointed out by Shah, J. in his referring judgment at p. : AIR1957Bom214 (FB). Krishtappa Vcnkappa v. Gopal Shiveji, that
'in considering whether a particular alienation of joint family property made prior to the date of adoption is or is not a lawful alienation, the alienation must be lawful, not in relation to the rights of the adopted son, -but it must be lawful at the date when the alienation was made; if it be lawful, it cannot be questioned or challenged by the adopted on whose adoption is subsequent to the alienation.'
Therefore, to the extent of the interest which the first defendant had in these properties, at the time of the sales, the plaintiff cannot question the alienations.
6. In the properties conveyed to them, the defendants 4 and 5 would be entitled to that share to which their alienor, the first defendant was entitled, on the dates of the alienation. (See sub-para (5) of para 261 at page 395 of the 12th Edition of Mulla's Principles of Hindu Law). On thet dates on which the sales as per Exs. 81 and 82 took place, the only coparceners that were actually in existence were the first defendant and his two sons the defendants 2 and 3. If, at the time, a partition had taken place amongst these coparceners, the first defendant would have been entitled to a one-third share in the properties which have been alienated to the defendants 4 and 5. But, it is argued by Sri Tavali that while determining the share of the first defendant as on the dates of Exs. 81 and 82, the plaintiff must be deemed to have been in existence at that time as the rights of an adopted son relate back to the date of the death of his adoptive father.
Sri Datar has argued to the contrary and has cited some decisions of the Bombay High Court to show that there are exceptions to the doctrine of relation back. It appears to be unnecessary to refer to those decisions that have been cited in this connection and that it would be sufficient for the purposes of the present case, to bear in mind the observations made by the Supreme Court in the case of Srinivas v. Narayan, : 1SCR1 , to the effect that the theory of relation back of the adopted son's rights, ought mot to be given effect to in a way which would lead to inconvenient consequences.
It appears to me that the theory of relation back certainly ought not to be given effect to in a way which would lead to unjust and inequitable consequences. When, as a matter of fact, the adopted son was really not in existence on the dates of those alienations, it would, lead to unjust consequences if, for determining the share of the alieuor, the existence of the adopted son at that time, is assumed. Therefore, the share to which either of these alienees would be entitled to in the property purchased by him, is the one-third share of the first defendant.
7. It may also be stated that this is not a case in which it would be possible to allot to the share of the alienor, the whole of the property alienated by him; because it appears that the properties which have been alienated by the first defendant) in favour of defendants 4 and 5 are the most valuable of the family properties and that the remaining properties are comparatively of not much value,
Therefore, apart from saving to the alienees the first defendant's one third share in the properties sold to them, the circumstances of the case do not permit any adjustment of equities between the parties. The plaintiff will be entitled to get in these properties only a half out of the two-thirds share remaining after the alienation of the first defendant's one-third share.
7a. In the result, the decrees of the Courts below in so far as they relate to the properties alienated in favour of the defendants 4 and 5 shall stand modified to the effect that the plaintiff will get only a half in the two-thirds share in the said properties, Subject to this modification, this appeal is dismissed; parties will bear their own costs in this appeal.
8. Order accordingly.