Somnath Iyer, J.
1. This is a plaintiff's appeal and is directed against that part of the decree of the Civil Judge by which his suit for the recovery of possession of two items of land alienated to defendant 3 was dismissed.
2. The relationship between the parties is displayed by the following pedigree.
| | |
Maddeppa-Gangawwa. Sadashivappa Paramanna-Babakka.
| | adopted son
Kallappa Ningappa (Plaintiff)
Dhareppa adopted Shidgouda
son (Defendent-2) adopted son
3. It is seen from this pedigree that Kallappa had three sons Maddeppa, Sadashivappa and Paramanna. Maddeppa died without issues and his widow is dead. Sadashivappa had two sons Kallappa and Ningappa. Kallappa died in the year 1927 leaving behind him his widow Nandeppa who adopted defendant 2 on March 27, 1947. Ningappa died in the year 1946 leaving behind him his widow Ningawwa who adopted defendant I in the year 1949. Paramanna, the third son of Kallappa, died in the year 1917 leaving behind him his widow Babakka who adopted Nandeppa in the year 1947.It should be mentioned here that Kallappa, thepropositus, died in the year 1903 and Sadashivappa,his second son, predeceased Paramanna in the year1917. It thus becomes clear that with the deathof Maddeppa in the year 1929 the only member of the family who becomes its sole surviving coparcener was Ningappa. The adoptions by Kallappa'swidow, Ningappa's widow and Paramanna's widowwere all made long after Ningappa became the sole surviving coparcener. The adoptions by Kallappa's widow and Paramanna's widow were made in theyear 1947 while the adoption by Ningappa's widowwas made in the year 1949.
4. The suit out of which this appeal ariseswas brought by the plaintiff who was adopted by Paramanna's widow. He brought a suit for declaration that he was the adopted son of Paramannaand that he was entitled to a half share in all the family properties. By the time the suit was brought and before the adoption was made, there was an alienation on June 6, 1944, under Exhibit A by Ningappa. He sold two properties bearing Survey Nos. 190 and 191 to defendant 3 for a sum of Rs. 4500/-.
5. The defence to the plaintiff's suit was that the Plaintiff was not adopted and that his adoption was not valid, and that the alienation to defendant 3 was binding on him.
6. On all the material questions arising in the case, the finding of the Civil Judge was in favour of the Plaintiff. He found him to be the validly adopted son of Paramanna and he also found that he was entitled to a half share in the family properties. But he refused to recognise the right claimed by the Plaintiff to a half share in the properties alienated to Defendant 3. The Civil Judge was of the view that after Ningappa became the sole surviving coparcener of the family in the year 1929 and until the adoptions were made by the widows of the other members of the family, Ningappa was quite free to make alienations and that those alienations whether they were supported by legal necessity or were or were not made for family benefit, were binding on the subsequently adopted sons. So while making a decree in favour of the Plaintiff in respect of all the other properties, the Civil Judge refused to make a decree for partition and delivery of possession of the two items of property sold to Defendant 3 and dismissed that part of the Plaintiff's suit.
7. The plaintiff appeals.
8. The short question involved in this appeal is whether the alienation made by Ningappa in favour of Defendant 3 binds the plaintiff. As I have already mentioned, that alienation was made on June 6, 1944 before there was an adopted son in existence. The properties, according to the finding of the Civil Judge, were family properties, and notwithstanding the fact that the Plaintiff was adopted by the widow of Paramanna on May 2, 1947, the plaintiff could not divest the alienee. The Civil Judge was of the view that there was clear evidence in the case that defendant 3 paid a sum of Rs. 4500/- to Ningappa and that that sum of money which was paid was utilised by Ningappa for the discharge of his own debts. But the Civil Judge was of the view that so long as Ningappa was, when he made the alienations, the sole surviving coparcener and there was no adopted son in existence, there was no impediment to the making of his alienations and that that power of alienation was unrestricted and unfettered.
9. The question in this appeal is whether this view taken by the Civil Judge rests upon any accepted rule of Hindu Law. That the Civil Judge was not right in taking the view which he took is clear from at least two pronouncements of the Supreme Court. In Srinivas Krishnarao v. Narayan Devji Kango : 1SCR1 this is what was observed at p. 24 (of SCR) : (at p. 387 of AIR):
'When an adoption is made by a widow of either a coparcener or a separated member then the right of the adopted 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.'
It was in this case that the Supreme Court affirmed the principle in the earlier decisions of the Privy Council that an adoption by a widow relates back to the date of the death of the adoptive father and that the adoption adds a male member to the family with retrospective effect. That such adoption divests the estate of the adoptive father wherever it could be found although it does not, the property belonging to a collateral, was also the other principle enunciated by the Supreme Court which was somewhat at variance with that expounded by the Privy Council in Anant Bhikappa Patil v. Shankar Ramachandra, 70 Ind App 232 : . The property claimed in this case on the foundation of his adoption being the share of the plaintiff's adoptive father, there can be no doubt that there was a defeasance of all other titles and that the plaintiff could claim that share notwithstanding the fact that his adoption was made after the death of his adoptive father.
10. It is equally clear from what was said in : 1SCR1 that even if there was an alienation by either a sole surviving coparcener or by the other coparceners of the adoptive father, since the right of the adopted son to claim the share of his adoptive father related back to the date of the death of the adoptive father, the alienation made by Mingappa in favour of Defendant-3 would have bound the plaintiff only 'if they were for purposes binding on the estate.' This view elucidated by the Supreme Court was affirmed in the later decision of that Court in Krishnamurthi v. Dhurwaraj : 2SCR813 and it is of course clear that we are bound by these pronouncements.
11. In that view of the matter, what tbe Civil Judge should have investigated was whether the alienation in favour of dcfendant-3 was made for a purpose binding on the estate. The alienation would have bound the estate if it was made either for family necessity or for family benefit. The most surprising feature of this case is that no such plea was ever put forward by defendant 3. It was explained by Mr. Malimath appearing for him that the omission on the part of defendant-3 to advance any such contention was attributable to the fact that in Somasekharappa v. Basappa Channabasappa 1960-38 Mys LJ 687 : (AIR 1961 Mys 141) this Court expressed the view that the doctrine of relation back in the case of an adoption made by a deceased coparcener would not extend to a case where a transfer has already been made either by the sole surviving coparcener or by his heir. At one stage, Mr. Malimath suggested to us that there is really no pronouncement of the Supreme Court on the principle governing divestment in the case of alienees, and that the decision which binds us on that question is really that found in 1960-38 Mys LJ 687 : (AIR 1961 Mys 141). But it is clear that in making that submission to us, Mr. Malimath was clearly mistaken since the pronouncements in : 1SCR1 and : 2SCR813 are unmistakable and afford no room for any ambiguity or doubt. It is to be seen that the decision in 1960-38 Mys LJ 687 : (AIR 1961 Mys 141) rested principally upon the decision of the High Court of Bombay, in Ramachandra v. Balaji : AIR1955Bom291 (FB). But that decision of that High Court was pointed out by the Supreme Court in : 2SCR813 as resting upon an unsupportable principle. It is true as Mr. Malimath pointed out that there is a reference in the judgment in 1960-38 Mys LJ 687 : (AIR 1961 Mys 141) to the decision of the Supreme Court in : 1SCR1 and that it was observed that : 1SCR1 was not a case in which the question of divestment in the case of an alienation arose for consideration.
12. But it is clear that whatever doubt might have been possible before the pronouncement in : 2SCR813 that doubt can no longer exist after the very clear elucidation in the second case of the Supreme Court of the principles enunciated in the earlier decision. The principle which can be said to have been firmly established is that the position is not different between an alienee and an heir inheriting an estate from a sole surviving coparcener, and, that whether the case is the one or the other, there is a divestment consequent upon the adoption of a person by the widow of a pre-deceased coparcener, provided the alienation is not made for a purpose binding on the estate.
13. So we cannot, in my opinion, supportthe conclusion reached by the Civil Judge that Itwas not necessary for him to enquire into the question whether the alienation in favour of defendant3 was or was not for a purpose binding on theestate. Normally we would have, since the CivilJudge did not make that investigation been inclined to remit the matter so that he may record afinding on the material question on which he recorded no finding. But we have been taken throughthe entire evidence in the case concerning the question whether the alienation was or was not madefor a purpose binding on the estate. This makes itreally unnecessary for us to remit the matter to theCivil Judge; we can dispose of the matter ourselves. Nor did Mr. Malimath appearing for defendant-3 ask us to remit the matter in that way.(After discussing the evidence, his Lordship proceeded..)
14 to 18. It is obvious that neither Exhibit 96 nor Exhibit 92 nor Exhibit 99 canconstitute evidence on the basis of which we cansay that the alienation to Defendant-3 bound thePlaintiff.
19. We must, in my opinion, differing from the Civil Judge say that the Plaintiff's half share in the properties alienated to defendant-3 by Ningappa could be recovered by the Plaintiff in consequence of his adoption. In my opinion, the decree made by the Civil Judge should have included the properties, alienated to Defendant-3.
20. I am not impressed by the argument that the plaintiff was entitled only to a third share in the the two items. The argument that he was not entitled to more than a third share was constructed upon a plea which was once raised by Defendant-2 that Maddeppa had relinquished his one-third share in the property in favour of Kallapga, the brother of Ningappa. It is true, that that story was told by defendant-2 in his written statement. But as pointed out by Mr. Savanur, the learned Advocate for the plaintiff, that plea was abandoned by Defendant-3 through a purshis which was produced in Court on behalf of defendant-2 on July 4, 1955. In that Purshis it was admitted by defendant-2 that until Ningappa died in the year 1929, the family continued to be joint and that he did not maintain his contention that the share of Maddeppa had been relinquished in favour of Kallappa.
21. In the result this appeal succeeds and isallowed and in modification of the decree made bythe Civil Judge there will be a decree in favourof the Plaintiff as prayed for by him for partitionand delivery of possession of all the properties inthe suit including the two items, Survey Nos. 190and 191 alienated by Ningappa in favour ofdefendant-3.
22. It does not appear that there should be any decree for mesne profits in respect of the two items alienated by Ningappa in favour of Defendant-3 for the period preceding the date of the decree of the Court of first instance. In respect of those two items, the Plaintiff, in addition to the mesne profits awarded by the Decree of the Civil Judge, will be entitled to mesne profits from the date of the decree of the Court of first instance which will be ascertained under the provisions of Rule 12 of Order XX. The Decree already made for mesne profits in respect of the other items, will stand undisturbed.
23. There is one more matter. Under the decree made by the Civil Judge, defendant-2 was also declared to be entitled to a fourth share in the properties other than those alienated to Defendant-3 and there was a decree for partition and delivery of possession of that fourth share. Now that we have decided that tie Plaintiff is also entitled to his half share in the properties alienated to Defendant-3, it should follow that defendant-2 is similarly entitled to his fourth share in those properties also. So in the exercise of our power under Rule 4 of Order 41 of the Code of Civil Procedure, defendant-2 is declared to be entitled to a fourth share in alt the suit properties including the properties alienated to defendant-3 and there will be a decree for partition and delivery of possession of that fourth share on payment of the Court-fee due in respect thereof. There will however, be no decree for mesne profits in favour of Defendant-2.
24. In this appeal, there will be no Order as to costs.
B.M. Kalagate, J.
25. I agree.
26. Order accordingly.