1. Plaintiff is the appellant. His suit, in so far as it relates to the recovery of possession of the suit properties as the adopted son of one Krishnaji, has been dismissed by the trial court, Hence the appeal.
2. Plaintiff, by his plaint, dated 7th March 1958, alleged that he was adopted by Krishnabai (defendant 1), the widow of Krishnaji, on the 26th June 1947. Krishnaji's father Swami Rao had two brother viz., Venkata Rao and Bheema Rao. Venkata Rao died in 1870; prior to his death he had to become separated from his two brothers Swami Rao and Bheema Rao, and got certain properties. But, after his death, his widow Jeevubaibai, who died in 1906, released the properties obtained by her husband on partition in favour of Krishnaji and two sons of Bheema Rao. Thereafter there was a partition between Krishnaji (his adoptive father) and the two sons of Bheema Rao, and in that partition, the suit properties came to the share of Krishnaji. Krishnaji died in the year 1900 and it was thereafter that his widow adopted the plaintiff to Krishnaji, and he, by virtue of his adoption, has become the son of Krishnaji.
3. After the death of Krishnaji, his wife Krishnabai went to reside at Poona, and Seetharam, the son of Jeevan Rao (son of Bheema Rao), took advantage of this fact and alienated the properties which came to the share of Krishnaji. These alienations are not binding on him, and therefore he is entitled to those properties as the properties of his adoptive father.
4. Defendant 1, his adoptive mother, died soon after the institution of his suit but after filing her written statement, and therefore her evidence is not available to the Court. Defendant 2 is the wife of Seetharam, but she has not contested the plaintiff's claim. Defendants 3 to 11 are all alienees from Seetharam either directly or having purchased the properties in court sales in execution of the decrees against him. The alienees are at present in possession of the suit properties.
5. The properties in suit, as stated in plaint para 2, are situate in four villages. At the hearing, the learned counsel for the appellant made it clear that he has no claim to properties situate in Ingalgi Bendigere and Belvalkop i.e. the properties described in clauses (b), (c) and (d) of plaint para 2. His case, as to the properties situate in Agadi Village, which are six in number, is that three lands bearing R. S. Nos. 186, 200 and 225/2 fell to his adoptive father's share in the partition and therefore he is entitled to claim them wholly. The other three lands bearing R. S. Nos., 10/12, 10/2 and 11, which went to the share of Venkata Rao on partition, came back to the family under the deed of relinquishment executed by his widow Jeevubaibai, and therefore, he is entitled to a half share in them. So, we are concerned with the six properties situate in the village Agadi.
6. Defendant 1, by her written statement, supported the plaintiff's claim. Defendant 2 remained ex parte.
7. The contentions of defendants 3 to 11, the alienees, relevant for the purpose of this appeal are as follows:
They deny the plaintiff's adoption: they also deny that the properties belonged to Krishnaji. However, it is stated by defendant 6 in his written statement that in the partition between Krishna and the two sons of Bheema Rao, he got only three lands viz., R. S. Nos. 186, 200, and 225/2 situate in the village Agadi. Prior to his death, Krishnaji made an oral will by which he bequeathed these properties to Jeevan Rao, father of Seetharam, and further directed his wife to enjoy those properties during her lifetime. In pursuance of the said will of Krishnaji, his wife Krishnabai executed the document in the year 1904. Ext. 309, stating therein that in accordance with the desire expressed by her husband Krishnaji, she was executing that document in favour of Seetharam, since Jeevan Rao had died in the year 1903. They therefore, state that the properties belonging to Krishnaji vested in the legatee after his death which took place in the year 1900 and, therefore, the plaintiff who is adopted in the year 1947, i.e., 47 ears thereafter, is not entitled to claim the properties which have gone out of the family and vested in the legatee under the oral will made by Krishnaji, his adoptive father.
8. The other contentions are not relevant and, therefore, we do not propose to state them.
9. On these findings, the learned trial Judge raised several issues and found that the plaintiff has proved his adoption to defendant 1 as a son to her husband Krishnaji, that there was partition during the lifetime of Venkata Rao, between Venkata Rao on the one hand and Swami Rao and Bheema Rao on the other, and in that partition Venkata Rao got the two Revision Survey Nos. 10 and 11 of Agadi village, as his share, and that these properties after Venkata Rao's death were relinquished in favour of Krishnaji and the two sons of Bheema Rao by Jeevubaibai, the widow of Venkata Rao under document Ext. 308, dated 28th March 1898. He has also found that there was a subsequent partition between the two branches of Krishnaji and Bheema Rao and that, in that partition Krishnaji got to his share three lands viz., Revn. Survey Nos. 186, 200 and 225/2, and that Seetharam became the full owner of R. S. Nos. 10/1, and 10/2 and 11 of Agadi village by partition. He has also found that the defendants have proved that Krishnaji Swami Rao had made an oral will in respect of the properties fallen to his share and that the plaintiff who was adopted subsequently to the will made by Krishnaji, and after his death, is not entitled to claim those properties. We do not think it necessary to state his findings on other issues. As a result of his findings he dismissed the plaintiff's suit in so far as it related to the recovery of the suit properties, and it is against the decree dismissing his suit that the present appeal has been filed by the plaintiff.
10. The findings that plaintiff has been duly adopted as a son to Krishnaji is not challenged in this appeal by the learned counsel for the respondents. Therefore the learned counsel for the appellants had made only two submissions. They are, firstly as to Revision Survey Nos. 10/1, 10/2 and 11. It is contended that Krishnaji, his adoptive father had one half share in them and he is, therefore, entitled to claim that share; and secondly, as to the other three survey numbers, stated to be disposed of by Krishnaji by his oral will, it is submitted that the alleged oral will said to have been made by Krishnaji is not proved in accordance with law, and even assuming that the oral will is proved, the same is invalid and the disposition made by such an oral will cannot affect the plaintiff's right to claim the properties of the adoptive father.
11. The argument is that plaintiff, being the adopted son of Krishnaji must be deemed to be in existence as on the date of death of Krishnaji by virtue of the doctrine of 'relation back', and if he was in existence as on the date of death of Krishnaji, then any will made by Krishnaji becomes invalid, and the dispositions made by such will cannot take effect; the properties still remain the properties of Krishnaji. Therefore, Jeevan Rao the legatee or his son Seetharam would not get any title to the properties, and consequently the alienees from Seetharam also do not get any title thereto and, therefore, they are not entitled to remain in possession; the plaintiff is, therefore, entitled to recover possession of those properties from them. It is on these two contentions, submitted, that the decree made by the trial court cannot be sustained and must be set aside.
12. We will now proceed to examine those two submissions. We will first consider plaintiff's claim in relation to revision survey Nos. 10/1, 10/2 and 11 of the Agadi village not covered by the will. Out of the three properties, two properties viz., revision survey Nos. 10/1 and 11 are now found to be in possession of defendant 3, and defendant 4 is in possession of the other revision survey No. 10/2.
13. It is the plaintiff's case that since these properties taken by Venkata Rao on partition came back to the family consisting of Krishnaji and the two sons of Bheema Rao, and since they are not disposed of by the will of Krishnaji, he is entitled to claim one-half share in them. The trial court accepted plaintiff's case and found that, in the earlier partition, Venkata Rao alone separated himself and took two Revn. S. Nos. 10 and 11 of Agadi village as his share in the family properties. The finding is not challenged before us. It is also not disputed before us that Jeevubai Bai the widow of Venkata Rao, has relinquished by Ext. 308, the two revision survey numbers in favour of Krishnaji and the two sons of Bheema Rao and that it was a valid surrender. It is, therefore, contended for the plaintiff that since these two properties came back to the family consisting of two branches i.e., of Krishnaji and Bheema Rao. Krishnaji was entitled to one-half share, and the plaintiff claims that one-half share of the adoptive father Krishnaji. If there is nothing else, perhaps there would be some justification for plaintiff's claim to one-half share in these properties.
14. But it is to be remembered that after the properties were relinquished by Jeevubaibai in favour of Krishnaji and the two sons of Bheema Rao, there was a partition between Krishnaji and the two sons of Bheema Rao. This fact is not in controversy. Then we have to see what properties fall to the share of Krishnaji in the partition which, as we gather from Ext. 309, must have taken place in about the year 1900. Ext. 309 furnishes material evidence to show what were the properties which fell to the share of Krishnajee in the partition between Krishnajee and the two sons of Bheema Rao. This document mentions the numbers of properties which fell to the share of Krishanji in several villages; it mentions only three revision survey Nos. viz., 186, 200 and 225 of Agadi village as having fallen to this share. Thus it is clear that the other three lands did not fall to his share. The omission to mention these survey numbers in which the plaintiff claims one-half share clearly leads to that conclusion. No evidence has been led by the plaintiff to show that Krishnaji had any interest in those properties. There is evidence to show that Seetharam has dealt with those properties as his own, and the revenue record also shows that those properties were standing in his name. Therefore it is clear to us from Ext. 309 that Krishnaji had no interest in those properties. If so, how Seetharam got those properties and sold them, is not a material question that requires to be considered.
15. That being so, we hold agreeing with the conclusion reached by the trial court, that the plaintiff's claim to one half share in the survey numbers must fail.
16. Now, we will consider the plaintiff's claim to other properties covered by Krishnaji's will. The first question to be considered is whether the oral will alleged to have been made by Krishnaji is proved. Relying on the decisions in Venkat Rao v. Namdeo , Mahabir Prasad v. Mustafa Hussain and Mt. Izhar Fatma Bibi v. Mt. Ansar Fatma Bibi : AIR1939All348 , the learned counsel submits that the onus of establishing an oral will is always a very heavy one and that it must be proved with utmost precision and with every circumstance of time and place. It is, therefore, the duty of the court to see with the greatest care, whether, by the words used by the testator, he intended to create a will. He further states that the Court must not forget that where an oral will has been set up by any party, then it will be the duty of the person founding his claim on the oral will to prove the exact words used by the testator. The learned counsel, therefore, asks us to apply the principles stated by these decisions and see whether the alleged will said to have been made by Krishnaji is proved.
17. The defendant's case that Krishnaji made an oral will, is essentially based on the statement appearing in Ex. 309, a document executed by Krishnabai, widow of Krishnaji, in the year 1904. That document is executed in favour of Seetharam, son of Jeevan Rao, minor by his guardian, his mother Yamunabai. The document is executed in Kannada language, and we would like to extract the relevant portion in that document relating to the oral will: (After reproducing the extract in 'Kannada' script his Lordship proceeded).
The official translation of this portion is as follows:
'Before his death my said husband instructed that the below described property belonging to him should not be vested, that it should be given to your father Jeevan Rao for managing the same perpetually from generation to generation and that I should maintain myself with the said properties during my lifetime, and a few days thereafter he died.... According to the desire of my husband and as instructed to me I have hereby made you the owner of the below described property.'
18. Relying on the words quoted above, it is contended by the learned counsel for the defendants that it is very clear from these words that Krishnaji did make an oral will bequeathing his properties to Jeevan Rao and further directing his wife to enjoy the properties during her lifetime. These words, according to him, clearly indicate the testamentary desire of Krishnaji to bequeath the properties to Jeevan Rao, and it is in accordance with his desire that Krishnabai executed this document. These words, it is submitted, are sufficiently clear to indicate that Krishnaji did intend to create a will.
19. The question therefore, is whether from the above recitals in Ex. 309 it can be held that Krishnaji made a will.
20. The expression 'will' has been defined in the Indian Succession Act, 1925, as a legal declaration of the intention of the testator with respect to his property which he desires to be carried out after his death.
21. Mr. V. Krishnamurthy, appearing for the respondents, while admitting the correctness of the propositions of law stated in the three decisions cited above submits, drawing our attention to the definition of 'will', stated above, that though we do not get the exact words used by the testator, yet the document clearly expresses the intention of Krishnaji to bequeath his properties to Jeevan Rao. He further submits that the words (After reproducing the words in Kannada script, his Lordship proceeded), are clear enough to suggest that Krishnaji did intend to create a will and that Krishnabai executed that document in accordance with the desire and command of her husband. The will, he says, is a simple one in that, all that Krishnaji intended was to bequeath his property to Jeevan Rao and that his wife Krishnabai should enjoy those properties till her death, there is no ambiguity in these words; and therefore the recitals in that document clearly indicate that Krishnaji did make a will.
22. There are two circumstances why we should come to the conclusion that Krishnaji made a will; the first is that after the death of Krishnaji, Krishnabai, his widow would inherit those properties which she was competent in case of necessity to alienate. Thus the estate which she would obtain on her husband's death would give her a larger interest in the properties, but by executing this document Ext. 309, she has curtailed her rights, accepting the position of having lesser and more limited right to enjoy those properties under the will. There is no reason why she should have curtailed her rights unless her husband had really intended to create a will. It appears to us that she, as a faithful Hindu widow, has carried out her husband's desire by executing this document. The document is really against her pecuniary interest, and normally no person is expected to act against his or her interests; further we have not been shown any circumstances or any evidence on record to find that she was acting under the influence of somebody either within the family or outside. The only persons who constituted the original family, who were living then, were this lady Krishnabai, the only male member Seetharam, a minor, and his mother Yamunabai. Therefore in our view, Krishnabai, executed this document only in accordance with the testamentary desire of her husband Krishnaji intending to bequeath his properties to Jeevan Rao. Unfortunately, Krishnabai is dead and her evidence is not available to us.
23. Further, that the recitals in Ext. 309 are true is evidenced from some of the documents produced in the case such as Exhibits 15, 19 and 25 which indicate that there was a division of the family properties among the second and third branches of the family and the fact that there was such a division is stated in this document.
24. It is to be seen that in each of the cases referred to by the learned counsel for the appellant, the will relied upon was held not proved on the evidence in the case. In AIR 1931 PC 285, the will was a fairly complicated one and on the evidence their Lordships held that the testator lacked the testamentary capacity to create a will and therefore the will was held not proved. In AIR 1937 P. C. 174, it was found that there was complete absence of detailed instructions as to the provisions of the proposed wakf, and in view of the existence of other circumstances, their Lordships came to the conclusion that the oral will set up was not proved. In AIR 1939 All 348, their Lordships stated that they were not called upon to decide as to whether there was an oral will or not but stated that if they were to find as to whether on the evidence an oral will had been established, they, on the principle stated in AIR 1937 P. C. 174, would be compelled to come to the conclusion that an oral will of the entire estate had not been established. Therefore, it is obvious from a perusal of the three decisions, on which reliance has been placed by the learned counsel for the appellant that on the facts, their Lordships, while stating the law relating to the proof of an oral will, found that in each of these cases the will set up was not proved.
25. Therefore, agreeing with the view taken by the trial court, we hold that Krishnaji did make an oral will whereby he bequeathed his properties to Jeevan Rao.
26. This then leads us to the consideration of the question as to what is the effect of the plaintiff's adoption on the disposition of the properties made by Krishnaji by his will. (Paras, 27, 28 and 29 were repetitions of the end portion of para, 24 and paras, 25 and 26 and since omitted--Ed.)
29-A. It is argued by the learned counsel for the appellant that the plaintiff, as the adopted son of Krishnaji gets all the rights of an 'aurasa' son and, by virtue of the theory of relation back, he must be deemed to be in existence as on the date of the death of his adoptive father Krishnaji. If so, the will executed by Krishnaji becomes invalid and inoperative and the properties do not vest in the legatee; the properties still remain the properties of Krishnaji and the alienations of those properties made by Seetharam being invalid are not binding on him and, therefore, he is entitled to claim them as the properties of his adoptive father Krishnaji.
30. Now, it is true that if Krishnaji had no son born to him, he was entitled too adopt one to continue his line. But if he dies without taking a boy in adoption, then his widow may adopt a son to him. The law relating to the right of a widow to adopt a son, prevailing in the area from which this case comes, is that the widow has an absolute right to adopt a son to her husband without this authority or the consent of his sapindas. Krishnaji's widow adopted the plaintiff and his adoption is held proved. So he gets all the rights which Krishnaji's aurasa son would have got.
31. The position of a adopted son of a Hindu, as stated by Ameer Ali, J. in Pratapsingh Shivasingh v. Agarsinghji Raisinghji, ILR 43 Bom 778: (AIR 1918 PC 192) is:
'.........it is an explicit principle of the Hindu Law that an adopted son becomes for all purposes, the son of his father, and that his rights unless curtailed by express texts are in every respect the same as those of a natural born son... Again, it is to be remembered that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; w whenever the adoption may be made there is no hiatus in the continuity of the line. In fact as Messrs. West and Buhler point out in their learned treatise on Hindu Law, the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible'.
This has been accepted as a correct rule of Hindu law by courts in India, and the Supreme Court in Srinivas Krishnarao Kango v. Narayan Devji Kango : 1SCR1 , while considering the scope of the principle of relation back, quoted with approval the observation of Ameer Ali J, in Pratapsingh's case ILR 43 Ameer Ali J, in Pratapsingh's case, ILR 43 Bom 778 : (AIR 1918 PC 192) and has subsequently reaffirmed it is Krishnamurthi Vasudeorao v. Dhruwaraj : 2SCR813 .
32. The plaintiff as an adopted son would be entitled to claim the properties of his adoptive father Krishnaji, cannot be disputed.
33. The extent and scope of the right of an adopted son to claim the properties of his adoptive father has been clearly state in Srinivas Kango's case : 1SCR1 , as follows:
'.... the scope of the principle of relation back is clear. It applies only when the claim made by the adopted son relates to the estate of his adoptive father. This estate may be definite and ascertained as when he is the sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family, in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take at the date of his death.............'
This principle has been restated in Krishnamurthi Vasudeorao's case : 2SCR813 . Therefore it is clear that what the plaintiff is entitled to claim is only the properties of his adoptive father or, as it is stated, the interest of his adopted father in the properties as on the date of his death. In the instant case, Krishnaji died in the year 1900, and prior to it, he, by his will, bequeathed his properties to Jeevan Rao. The plaintiff is adopted in the year 1947 i.e., 47 years thereafter, Krishnaji, at the time of his death, was the sole surviving male member in the family consisting of himself and his wife and, as stated before, he prior to his death, disposed of his properties by an oral will which is held proved. The question then arises whether Krishnaji was competent to dispose of his properties by will. That takes us to the consideration of the rights of a sole surviving coparcener to deal with the properties of the family.
34. Mayne, in his treatise on 'Hindu Law and Usage', eleventh edition, at page 264, para 207, observes:
'Where as adoption defeats the estate of a person who is lawfully in possession, such holder if a male has the ordinary powers of alienation of a Hindu proprietor. No doubt he is liable to be superseded; but, on the other hand, he never may be superseded. It would be intolerable that he should be prevented from dealing with his own, on account of a contingency which may never happen. When the contingency has happened, it would be most inequitable that the purchaser should be deprived of rights which he obtained from one who, at the time, was perfectly competent to grant them.'
Krushnajee, therefore, as the sole male member of the family was perfectly competent to deal with the family properties, being the sole and absolute owner of those properties. Now it cannot be disputed that the rights of an adopted son spring into existence on the date of his adoption; but by the financial theory of relation back, he is considered to be in existence as on the date o f the death of his adoptive father; and, as stated in Pratapsingh's case, ILR 43 Bom 778 : (AIR 1918 PC 192), the adoption, so far as the continuity of line is concerned, has retrospective effect; whenever the adoption may be made, there is no hiatus in the continuity of the line. This fiction has been therefore introduced for the purpose of introducing a new heir into the succession. It is a well known principle that succession cannot remain in abeyance. Therefore, when the succession opens, the next heir will get it; but if the widow of the last male holder takes a boy in adoption, then he as the adopted son, becomes the preferential heir and, as such, would be entitled to succeed his adoptive father displacing the widow and it is, in this respect alone, that an adoption has a retrospective effect, which enables the adopted son to continue the line of his adoptive father.
35. One of the consequences of the application of the theory of relation back is that the adopted son as a preferential heir to his adoptive father would be entitled to get the property of his adoptive father divesting the intermediate or mean-holder. Thus he may get the property from the mean-holder immediately. This may happen if the adoption is made by the widow of the last male holder soon after his death. But, suppose the adoption is delayed, and is made long after the death of the last male holder, as in the instant case 47 years after his death, then what are the rights of the mean-holder while in possession, to deal with the property? Ameer Ali J. in Pratapsingh's case, ILR 43 Bom 778 : (AIR 1918 PC 192), has answered that question by saying that 'in such a case totally different considerations would arise.' This is what he says:
'It may be that if the Hindu widow lies by for a considerable time and makes no adoption, and the property comes into the possession of some one who would take it in the absence of a son, natural or adopted, and such a person were to create rights in such property within his competence whilst in possession, in such a case totally different considerations would arise.'
Thus it is clear that, even in such cases, the adopted son would not get the property divesting the person in possession immediately, without consideration of the rights created by the mean-holder. We are not concerned, in the instant case, with the consideration of the rights created by mean-holder but with the question of the competence of the sole surviving coparcener or sole male member of a Hindu family as an absolute owner to dispose of the family property by will.
36. Can it be said that Krishnaji had no competence to deal with the family properties as the sole male member merely because there was a possibility of his widow adopting a son to him? In our view, Krishnaji's right to deal with his family properties as the sole male member was absolute and unimpaired and cannot be curtailed by the possibility of a son being adopted to him by his widow, which may or may not happen.
37. In Veeramma v. Sayamma AIR 1929 Mad 296: ILR 52 Mad 398, a similar question question arose. The facts of that case are that a father, a son and his (son's) wife formed a joint Hindu family. The son died on the 29th September 1918 leaving behind him his widow, and authorising her to adopt a son to him. But, on the 3rd October 1918, the father disposed of the whole of the properties by a deed of settlement. On the 22nd November 1918, the son's widow adopted the plaintiff who instituted a suit claiming one-half share in the suit properties against his grand-father. The question, therefore, was whether the plaintiff receives practically nothing i.e. he takes the properties subject to the settlement made on the 3rd October 1918, or whether his adoption can relate back to the date of his adoptive father's death viz., 29th September 1918 in order to defeat the grandfather's settlement. Their Lordships stated that:
'the theory of relation back has only to do with establishing a line of succession to the adoptive father and in order to establish that line, it is necessary that certain intermediate holders should give way to the adopted son's superior claims as that of a natural born son of his adoptive father. He can, so to speak, insist on the property devolving in a direct line as far as possible, and it is in this connection and this alone that the doctrine of relation back is to be regarded.'
Therefore they held that the doctrine of relation back does not apply and that the plaintiff must take the property subject to the disposition by the grandfather.
38. What are the rights of a sole surviving coparcener to deal with the family properties, came for consideration before the Privy Council in Anant Bhikappa v. Shankar Ramachandra . In that case, Keshav was the sole owner and the question was, what was his right to deal with the property, and their Lordships, approving the decision in Veeranna's case : AIR1929Mad199
'Keshav's right to deal with the family property as his own would not be impaired by the mere possibility of an adoption.'
39. The decision in has been approved by the Supreme Court in Srinivasa Kango's case : 1SCR1 with the observation that 'we are of opinion that the decision in so far as it relates to properties inherited from collaterals is not sound.....' This decision was reaffirmed by the Supreme Court in Krishnamurthy 's case : 2SCR813 . Therefore, the principle stated in Veeranna's case AIR 1929 Mad 296 that the disposition made is binding upon a son or grandson who was not in existence at the date of the disposition, is well established.
40. However, what is contended by the learned counsel for the appellant is that, in the instant case, Krishnaji sought to dispose of his properties by will, and a will, as is well known, speaks after the death of the testator. That means, the dispositions made by the will take effect only as at the death of the testator. But since the plaintiff must be deemed to be in existence as on the date of the death of the adoptive father, the will becomes invalid and the dispositions made by such will cannot take effect. We may state here that we are not concerned in this case with the alienations as such, and, therefore, what is the effect of the observations of the Supreme Court in Srinivasa Kango's case : 1SCR1 that:
'When as adoption is made by a widow of either a coparcener or a separate member, then the right of the adoptive son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate' and whether these observations hold good even in cases of alienations made by a sole surviving coparcener, do not arise for consideration in this case and, therefore, we do not propose to examine that question. In this case, what we are concerned with is whether Krishnaji, as the sole male member of the family, was competent to dispose of the property by will. His competence, as the sole surviving male holder in a Hindu family, to deal with the family properties in any way he likes, cannot be disputed. the only question, is whether the plaintiff, as an adopted son, who is sometimes described as a posthumous son, or a son to be in the womb, and, therefore, to be in existence as on the date of death of his adoptive father, by virtue of the theory of relation back, is entitled to claim the properties disposed of by will by his adoptive father, treating the will as invalid, or whether he takes the properties subject to the dispositions made by his adoptive father by his will.
41. Such a question arose before the Judicial Committee of the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar , and Viscount Dunedin, who delivered the judgment, observed 'that it is not possible to reconcile all the decisions, and still less the reasons on which they have been based'. However, his Lordship examined the matter on principle and stated--
'When a disposition is made inter vivos by one who has full powers over property under which under a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt. (In this case, the question of giving power to adopt does not arise.) For the will speaks as at the death of the testator, and the property is carried away before the adoption takes place. But it is quite different when the adoption is antecedent to the date at which the disposition is meant to take effect. The rights which flow are adoption are immediate and the disposition, if given effect to, is inconsistent with these rights and cannot of itself via propria affect them.'
Thus it is quite clear from the decision that it is competent for a sole surviving coparcener to dispose of properties by will, and the subsequently adopted son has to take the estate subject to the dispositions made by will. But, in case the adoption is made before the dispositions take effect, i.e., before the death of the testator, then the adopted son's right comes into existence immediately on his adoption, and he being in existence, the dispositions made by will cannot take effect and the rights of the adopted son cannot be defeated because such vesting is inconsistent with the right of an adopted son who is entitled to claim the properties of his adoptive father. In the instant case, the testator died in the year 1900, and the adoption has been made 47 years thereafter. Thus, as on the date of death of Krishnaji, the adopted son was not in existence, but it is only by a fiction of law, he is considered to be in existence as on the date of death of his adoptive father, and that too, only for the purpose of the continuation of the line. Therefore the vesting which has become complete as on the date of Krishnaji's death in the year 1900, cannot be displaced by the plaintiff who has been adopted subsequent to his death.
42. Subsequent to the decision in Krishnamurthi Ayyar's case , such a question arose for consideration in several High Courts in India. The first case in which Krishnamurthi Ayyar's case came for consideration amongst the cases cited before us, is Erram Reddy v. Maram Reddy Lakshminarayana : AIR1928Mad271 . In that case also, the properties were disposed of by will prior to the defendant's adoption, and the question was whether the defendant, who is the adopted son, has, by that adoption, acquired a right to his adoptive father's estate. Srinivasa Aiyangar, J. in the course of his judgment observed:
'But there can be no doubt whatever on the principle of the thing it cannot be that a person who is the full and absolute owner at the moment of his death cannot validly dispose of his property by will merely because he has given permission to his widow to make an adoption. Their Lordships, in view of the theory of the adoption of a son by the widow to her deceased husband relating back to the time of death of the person to whom the adoption is made being only a legal fiction and of the fact that such adoption is only a subsequent legal act, have in clear and indubitable terms laid it down that in such cases the will must take effect.'
And the Court relying on the decision of the Privy Council in Krishnamurthi Ayyar's case , negatived the adopted son's claim holding that the disposition in favour of the appellant would not be displaced by the subsequent adoption of a son, for it became vested in her at the death of the testator.
43. Again, a similar question arose in the same High Court in Lalitha Kumari Devi v. Raja of Vijaynagaram : AIR1954Mad19 . The contention was that on the adoption of Chittibabu by Alak Rajeswari, the will of Ananda Gajapathi became invalid by the application of the doctrine of relation back and, therefore, the only title which Chittibabu had was his title by virtue of the adoption. The learned Chief Justice Rajamannar described this contention as 'novel' being 'opposed to the principles laid down by the Privy Council' and, observing that 'much time need not be spent in disposing of this contention', dismissed the contention, quoting the observations of the Privy Council in Krishnamurthi Ayyar's case .
44. A similar question had arisen in other High Courts (vide: Sashi Kantha v. Promode Chandra : AIR1932Cal600 Udhao Sambh v. Bhaskar Jaikrishna AIR 1946 Nag 203; Bhimaji Krishnarao v. Hanamantrao Vinayak : AIR1950Bom271 , Vithalbhai Gokalbhai v. Shivabhai Dhoribhai, and Narayan v. Padmanabh, respectively; and D. Lakshminarasimham v. Garimella Rajeswari : AIR1955AP278 , and in all of them such a contention was negatived relying upon the decision of the Privy Council in Krishnamurthi Ayyar's case .
45. Therefore, in our view, the contention of the learned counsel for the appellant that the will made by Krishnaji becomes invalid and the dispositions made by it cannot take effect, and the plaintiff, as the adopted son, by virtue of the theory of relation back, is entitled to claim the properties of his adoptive father, disposed of by will, cannot be accepted. We, therefore, hold that the dispositions made by Krishnaji by his will are valid and vest his properties in the legatee and the plaintiff takes the properties by his adoptive father Krishnaji subject to the dispositions made by him by his will.
46. Thus the two submissions made on behalf of the plaintiff-appellant fail. We, therefore, confirm the decree made by the trial court and dismiss the appeal with costs.
47. Appeal dismissed.