Chandra Reddy, C.J.
1. The appeals raise common questions of law and fact and could therefore be disposed of together.
2. The facts giving rise to these appeals could be stated in a few words. One Potaraju Sreeramulu had a son Venkata Subba Rao and a grand-son Ramakrishna Rao. Both of them predeceased him. The son died in February 1947 and the grand-son on 1st December 1945, the latter leaving a widow by name Papayamma. Sreeramulu had also a daughter by name Chittamma whose daughter is the afore-mentioned Papayamma. On the death of Venkata Subba Rao misunderstandings arose between Sreeramulu and his son-in-law i.e., the husband of Chittamma consequent upon the latter's attempt to get at all the properties of Sreeramulu. The son-in-law set up one Chenchal Rao to claim to be the adopted son. of Sreeramulu. In this state of strained feelings, Sreeramulu executed a will bequeathing all his properties to his wife Ramayamma and also conferring power on her to adopt a boy.
Pursuant to this authority, Ramayamma adopt-ed one Srinivasa Sarma who is one of the parties to the litigation and the respondent in all these appeals, on 22-8-1948 and also executed a deed of adoption evidencing it. She also settled on him the properties which she acquired under the will of her husband as also her stridhana properties. More than a year thereafter, Papayamma took one Parthasarathi Rao who is the appellant in all these appeals in adoption. Several suits were filed in the court of the District Munsiff, Masulipatam, by Ramayamma and her adopted son Srinivasa Sarma against Parthasarathi Rao and some others for the recovery of possession of various items of property and for profits. All the suits ended in decrees in favour of the plaintiffs which were confirmed on appeal.
3. The aggrieved defendant Parthasarathi Rao has carried these matters in second appeal which open up some questions of importance. Though in the trial court, the validity of the appellant's adoption was challenged on several grounds, it is not brought into question in these appeals. We may, therefore, proceed on the basis that Parthasarathi Rao was validly adopted by Papayamma.
4. Now the point raised is that since his adoption dates back to the date of the death of his adoptive father, he is entitled to be put into possession of his adoptive father's share of the family estate. The stress of the argument on behalf of the appellant is that, although on the death of his son, Sreeramulu became the sole surviving co-parcener in whom the whole estate of the family vested, it was an estate subject to defeasance and as such was divested on the adoption of Parthasarathi Rao.
It is urged that a coparcenary should be deemed to subsist so long as there was a widow of a coparcener who could adopt and that adoption relates back to the date of the death of the adoptive father. Since the adopted son must be taken to be in existence at the time when his adoptive father died, his title as a coparcener would prevail not only as against the other coparceners or any title based on inheritance but against every person who is in possession of the property as well. The property in the hands of the surviving coparcener or his heir is impressed with the character of coparcenary property so long as there is a widow alive who could bring into existence a son. The moment an adoption is made by the widow, the adopted son is entitled to get the interest of his adoptive father to whomsoever it might have passed.
5. The principle is that the male line is not regarded as extinct or the man to have died without 1959 Andh. Pra. D.F./33 issue until the continuation of the line by adoption becomes impossible, that the adoption has retrospective effect and that, whenever an adoption is made there is no hiatus in the continuity of the line. See Pratapasingh Shivsingh v. Thakor Shri Agarsinghi Rajasanghi ILR 43 Bom 778: 46 Ind App, 97: (AIR 1918 PC 192) and Neelangoude v. Ujjangouda AIR 1948 PC 165.
6. Thus, there can be little doubt that the adopted son has a right to get the share of his adoptive father from other coparceners in possession or from one who has acquired it by the law of inheritance. Does this doctrine of relation back with all its effects extend to a case where the sole surviving coparcener has disposed of the property before the adoption? The answer of the Counsel for the appellant is that as a logical corollary the adopted son's right should prevail as against every person claiming under the last coparcener. It is true that, it abstract logic is to have its way, it may be difficult to resist the force of this argument. But it should not be forgotten that the whole theory is based upon fiction, namely, either the life of the deceased coparcener was prolonged in his widow till the date of adoption or the adoption took place just before the death of the adoptive father. In the view of the learned authors West and Buhler 'a widow's life is a prolongation of her husband's and her adoption to her deceased husband is simply a deferred act of the husband himself.'
7. The question is: is it necessary to carry this fiction even into cases where the sole surviving coparcener has alienated the whole family property? In the words of Bose J., in Udhao Sambh v. Bhaskar Jaikrishna AIR 1946 Nag 203 at p. 205:
'There is no logical basis for the rules until fictions are introduced and then fiction is added to fiction. The matter starts in fiction. The adopted son is no son according to natural or biological laws. He is deemed to be a son, deemed, to be born into the family, deemed to be blood of its blood, by a series of fictions. These fictions compel further fictions because of their fundamental conflict with natural laws, and the question now arises, how far is the process of adding fiction to fiction to continue? '
8. We feel that it is unnecessary in the matter of fictions to go further than what is warranted by decided cases. In our opinion, the right of the adopted son should be limited to displacing of titles acquired by inheritance and not to those acquired by outsiders in other ways. In other words, the adoption by a widow of a deceased coparcener would not affect dispositions made by a person holding the estate. The rule that an adoption dates back to the date of the death of the adoptive father has no application to a case where the last male holder has disposed of the property since the sole surviving coparcener is always regarded as the owner of the coparcenary property and as such it is within his competence to alienate property either for necessity or by way of gift. When an estate is divested by a subsequent adoption, the adopted son takes the estate subject to the alienations made by the holder for the time being. There is abundant authority for this proposition and it does not rest on first principles. Courts have always drawn a distinction between the two situations.
9. We may begin with the well-known case of Veeranna v. Sayamma, ILR 52 Mad 398, which contains a very illuminating and exhaustive exposition of the law on the subject. There a father and his son constituted a Hindu joint family. The son predeceased the father leaving behind him a widow but without any issue. The father as the sole surviving coparcener settled all the properties on his daughters. The son's widow then adopted a boy who brought a suit claiming a half share in the properties on the ground that his adoption dated back to the death of his adoptive father. This contention was repelled and the suit was dismissed. It was laid down by the Bench consisting of Odgers and Venkata Subba Rao JJ., that the survivor could alienate all or any of the family properties absolutely and the adopted son could not question the alienations and could take only what remained unalienated.
Odgers J., stated the principle thus:
'It seems to me that a sole surviving coparcener has always been regarded as the owner of the coparcenary property. The theory of relation bad 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.... But within these limits, he can so to speak insist on the property devolving in a direct line as far as possible from father to son or from grand-father to grand-son and it is in this connection and this alone that the doctrine of relation back and the cases I have quoted in the first category of inheritance are to be regarded. What authority there is with regard to alienations by a male holder, are strongly, and it seems to me conclusively, against the contention argued by the appellant.' 'The legal position was summed up thus by Mr. Justice Venkata Subba Rao:--
'The theory is, that a Hindu cannot be said to have died without male issue, until the death of the widow, makes adoption impossible; in other words, so long as the widow is alive, there is the possibility of an heir coming into existence. (West and Buhler, 4th edition, 890-- ILR 43 Bom 778: (AIR 1918 PC 192)).
Supposing this doctrine is carried to its logical results, what follows:-- The mere fact that the widow of a deceased member exists, hinders the mate owner from dealing with, what is presumably his own property. The widow may never adopt and yet the fetter is quite effectual. If the widow happens to out-live the surviving coparcener, the restriction on his power lasts till his death. With the conception that a widow hag limited powers over properly, the Hindu Law has made us familiar; but the doctrine we are now asked to accept leads to the startling result, that the position of a male proprietor is infinitely worse than that of the widow, under the law.'
The learned Judge: then cited with approval the following passage from Mayne's Hindu Law:--
'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.'
The rule contained in these passages represents the correct law if we may say so with respect.
10. The opinion of Reilly J., in Sukhdevdoss v. Ml. Choti Bai AIR 1928 Mad 118 is in consonance with this rule. The learned Judge observed:
'It has been recognised clearly by the Privy Council in Krishnamurthy Ayyar v. Krishnamurthy Ayyar AIR 1927 PC 139: ILR 50 Mad 508 that, when by his .will the husband has disposed of tart of his property, that disposition cannot be affected by the adoption of a son after his death; and a similar legal effect must follow in my opinion, from the disposition by will of the whole of his property, which in that case cannot be affected by a subsequent adoption.'
11. So far as I can see, there is no legal principle on which, an absolute estate created by the husband's will in favour of his widow or any one else can be divested by a subsequent adoption, unless we can treat the adoption as so relating back to the life-time of the husband as to destroy in respect of ancestral property his power of disposition by will, a view which the opinion expressed by the Privy Council in Krishnamurthi Ayyar's case, AIR 1927 PC 139; ILR 50 Mad 508 precludes us from taking.
12. In ILR 43 Bom 778: (AIR 1918 P C 192), Privy Council appears to be of the view that the doctrine of that case would not apply to cases where rights were created in favour of third parties. It may be useful to advert to the following passage which seeks to bring out this distinction:
'It may be that if a 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 person were to create rights in such property within his competence whilst in possession, in such a case totally different considerations would arise. But there is nothing of the kind to modify the true application of the Hindu Law.'
13. Another judgment of the Privy Council, which throws considerable light on this enquiry is AIR 1927 P. C. 139: ILR 50 Mad 508. Their Lord-snips remarked at p. 525 (of ILR Mad): (at pp. 144-145 of AIR) thus:--
'When a disposition is made inter vivos by one who has full power over property under which 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. For the will speaks as at the death of the testator and the property is carried away before the adoption takes place.'
14. The limitation to the doctrine of relation back is also recognised in Anant v. Shankar, AIR 1943 P. C. 196 which approved of the decision in ILR 52 Mad 398: (AIR 1929' Mad 296). Their Lordships stated:--
'Keshav's right to deal with the family property as his own would not be impaired by the mere possibility of an adoption c. f. ILR 52 Mad 398: (AIR 1929 Mad 296). But .....the same right to adopt subsisting after his death must have qualified the interest which would pass by inheritance from him.'
15. The authority of AIR 1943 P. C, 196 has been to some extent impaired by a Judgment of the Supreme Court in Srinivas v. Narayan : 1SCR1 . But the disagreement is only with regard to one aspect of the matter, namely, the claim of the subsequently adopted son to collateral succession. Differing front AIR 1943 P. C. 196, the Supreme Court held that the adoption after the death of a collateral does not entitle the adopted son to come in as the heir of the collateral.
16. In Other respects, the decision still holds the field.
17. We will now notice rulings, which contain a view similar to that adumbrated in ILR 52 Mad 398: (AIR 1929 Mad 296) and those which followed it. This was followed by Venkataramana Rao, J., in Sankaralingam Pillai v. Veluchami Pillai, 1942-1 Mad LJ 119: (AIR 1942 Mad 338), which was confirmed by a Full Bench of the Madras High Court in Sankaralingam v. Veluchami, ILR (1943) Mad 309; (AIR 1943 Mad 43) (F.B.). Mr. Justice Bose of the Nagpur High Court has laid down the same principle in AIR 1946 Nag 203 at p. 206 after referring with approval to ILR 52 Mad 398: (AIR 1929 Mad 296).
18. The, last mentioned case was followed by a Bench of the same Court in Pralhad Ramachandra v. Gendalal Motilal, AIR 1948 Nag 351 which ruled that a subsequently adopted son of one of the coparceners could not challenge the mortgage executed by the sole surviving coparcener.
19. The Bombay High Court has expressed the same opinion in Bhimaji v. Hanumant Rao, : AIR1950Bom271 in which ILR 52 Mad 398: (AIR 1929 Mad 296) is adverted to. Chief Justice Chagla, who delivered the opinion of the Bench extracted the Jaw as stated by Lokur J., in Ramachandra Balaji v. Shankar Apparao, AIR. 1945 Bom 229.
'It follows therefore that the adopted son is entitled to recover his adoptive father's share in the family properties, subject of course to any lawful alienations that might have taken place prior to his adoption.' There is another reported case in the same volume, Vithal Bhai v. Shiva Bhai : AIR1950Bom289 which reviewed the case law on the subject.
20. The view of the Mysore High Court as contained in Puttappa v. Basappa AIR 1953 Mys 113 accords with them. A similar question came up for consideration before the Madras High Court in Lalithakumari v. Rajah of Vizianagaram, : AIR1954Mad19 . This Bench reiterated the principle of ILR 52 Mad 389: (AIR 1929 Mad 296). This aspect of the matter was considered at some length by Venkatarama Ayyar J., in the judgment. The learned Judge, after noticing several of the decisions on the point, including ILR 52 Mad 398: (AIR 1929 Mad 296) said:--
'The result of the adoption is to constitute the adopted son as heir to the adoptive father as on the date of his death and that legal fiction enables him to divest all estates which had vested by inheritance in persons who would have not been entitled, to inherit if he had in fact been in existence on that date. This rule has no .... application to estates which had not devolved by inheritance. Even the adopting widow would not be divested of her separate and stridhanam properties by reason of the adoption. Even an aurasa son would have no claim to them and the adopted son could not be put in a better position. The properties which the widow got under the will of her husband were her absolute properties and her title to them is not as heir of her husband but as legatee under the will.'
21. ILR 52 Mad 398: (AIR 1929 Mad 296) was followed by another Bench of the same Court in Raju v. Lakshmi Animal : AIR1954Mad705 .
22. We may lastly cite- Ramachandra v. Balaji : AIR1955Bom291 (FB). The principle of the case is stated in the head note thus:--
'If on the death of a sole surviving coparcener (A) his property has devolved upon his heir (B) by inheritance and on his (B's) death it has vested, in his own heir (C in this case son of B) the subsequent adoption in the family of the sole surviving coparcener (A) does not divest it from such heir.'
23. Thus all these cases furnish clear authority for the proposition enunciated above. No ruling has been brought to our notice, which is in conflict with the opinion expressed by us above. It is contended by the Counsel for the appellant that the principle underlying ILR 52 Mad 398: (AIR 1929 Mad 296) and that line of cases is no longer sound in view of the dictum of the Supreme Court in : 1SCR1 . It is also urged that it is opposed to the decision in ILR (1943) Mad 309: (AIR 1943 Mad 43) which, as we. have already stated, affirmed 1942-1 Mad LJ 119: (AIR 1942 Mad 338). We do not think that the last mentioned case takes the appellant anywhere. The point raised there was whether the adopted son of a deceased coparcener could successfully claim a repartition of the family property amongst the sole surviving coparceners and it was answered in the affirmative. That does not therefore help the appellant. On the other hand, it was specifically stated there that such an adopted son would take the estate of his adoptive father subject to all lawful alienations. We have already pointed out that the sole surviving coparcener is the absolute owner of the property and it is not correct to describe it as a qualified interest in the property and he has consequently full power to alienate it whether by settlement or by will, there being no fetters on such power.
24. Coming to the judgment of the Supreme Court in : 1SCR1 , the passage pressed into service is this:--
'In deciding that an adopted son is entitled to divest the estate of a collateral, which had devolved by inheritance prior to his adoption AIR 1943 PC 190 went far beyond what had been previously understood to be the law. It is not in consonance with the principle well established in Indian jurisprudence that an inheritance could not be in abeyance, and that the relation back of the right of an adopted son is only 'quoad' the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient, 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. Thus transferees from limited owners, whether they be widows or co-parceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from him would have no-protection, as there could be' no-question of supporting the alienations on the ground of necessity or benefit'.
25. On the basis of these observations, it is urged that it is only an alienation that is supported by legal necessity that would bind the adopted son of a deceased co-parcener and that the latter could defeat the rights of persons who had acquired properties from a co-parcener by way of gift. We are not inclined to accede to this theory. It cannot be overlooked that it was in explaining the principle of relation back as applicable to collateral succession that these remarks were made.
The Supreme Court was only pointing out the anomalies that would flow from extending that theory of relation back to even collateral succession as enunciated in AIR 1943 PC 198. The question there was whether a subsequently adopted son could divest another remote heir of the estate which came to him from a collateral after the death of the adoptive father. The learned Judges were not concerned with a problem like the one that presents itself here, namely the effect of an adoption on prior dispositions by a surviving co-parcener.
So the observations should be understood in the light of that controversy. We do not think that Venkatarama Ayyar J., who spoke for the Court in that case, intended to lay down anything contrary to the principles established in ILR 52 Mad 398 : (AIR 1929 Mad 296), and those that followed it and also to depart from the rule stated by him in : AIR1954Mad19 . The power of the surviving co-parcener to deal with the property could not have been present to the mind of the learned Judges. Every decision is authority only for what it actually decides and the
'generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.'
See Quinn v. Leatham, : 1SCR1 , does not render any assistance to the appellant. The result is that the appellant, though validly adopted, could not claim the property that had vested in Ramayamma under the will of her husband and which she did not inherit from her husband, the sole surviving coparcener.
26. Alternatively, it was argued that since the adoption of the respondent was invalid by reason of his adoptive mother's authority to adopt having become extinct, owing to her grand-son having left a widow as his heir, who could continue the line by adoption, the gift in his favour had failed. We do not think this contention could prevail. The question of the invalidity of the respondent's adoption on the ground of there being a grand-son in the family who left a widow as his heir was not raised in the courts below.
The adoption of the respondent was attacked as being untrue and on grounds other than those now urged as would be seen from the judgment of the Courts below. All that was stated there was that Ramayamma had no power to adopt but it does not say for what reasons she did not posses? that power. There was no issue on this aspect of the matter. Nor was this ground taken even before the lower appellate Court.
It is for that reason that an application for permission to raise additional grounds was filed for the first time in 1957 i.e., just three years after the filing of these appeals. We do not think there is any justification to allow that petition at this stage,
27. That apart, it is not necessary to settle that controversy as these appeals can be disposed of on another ground. Assuming that the adoption is invalid, we do not think that that would defeat the title of the respondent to the property in dispute. It is no doubt true that there is a reference to the respondent in the dispositive clauses, as the adopted son of Sreeramulu. It also appears that the settler proceeded in the belief that the settlee was a duly and validly adopted son. But that is not determinative of the matters.
The problem has to be solved with reference to the intention of the donor, namely, to make the gift to an individual as persona designata or as one filling a particular legal status. If it is the former, the gift takes effect notwithstanding the fact that the adoption turns out to be invalid. The test to he adopted in such cases is whether the gift to a person who is referred to as adopted son is made dependent on all the requisites of a valid adoption having been fulfilled or whether it is to a named person despite the expectation that the requirements of a valid adoption were satisfied.
In deciding whether the intention of the donor was to make a gift to a designated person or to a person fulfilling a particular status, the overall picture of the provisions of the document as also the back-ground of the previous history should be looked into.
28. There is a judgment of the Supreme Court on this subject in Ranganatham Chettiar v. Pariakaruppan Chettiar, : 1SCR214 , which is of considerable assistance in this enquiry. In that case, the testator described the legatee in the dispositive clause as his adopted son though in the other clauses he referred to him by his name. It was contended that the validity of the adoption was condition precedent to the disposition taking effect. Their Lordships repelled it and upheld the gift in the view that the legatee was intended by the testator to take the property as persona designata notwithstanding that the adoption was open to serious challenge.
It was held there that the question as to whether a disposition in such terms is to a named person or by reason of his occupying a particular position arising in individual cases must ultimately depend on its own facts and the terms of the document containing the dispositions. The learned Judges quoted with approval the illustration given by the Privy Council in Fanindra Deb Raikat v. Rajeswar Dass, 12 Ind App 72 at p. 89.
'If a man makes a bequest to his 'wife A. B.' believing the person named to be his lawful wife, and he has not been imposed upon by her, and falsely led to believe that he could lawfully many her, and it afterwards appears that the marriage has not lawful, it may be that the legality of the marriage is not essential to the validity of the gift. Whether the marriage was lawful or not may be considered to make no difference in the intension of the testator.'
This is very apt in the context of an adoption which ultimately proves to be invalid. Considering the contents of the document and the surrounding circumstances, there can be little doubt that the intention of the donor was to confer all her proper-ties on the donee as a named individual irrespective of whether the adoption was legal or not. It should he remembered that both at the time when the will was executed and when the properties were settled, there were strained feelings between the parties.
Notices passed between them and there was positive hostility between them. As we have already stated, the son-in-law set up one Chenchal Rao to claim to be the adopted son of Sreeramulu and also financed the litigation started by the alleged adopted son. In these circumstances, it is reasonable to deduce that Ramayyamma was anxious to give away all the properties to the respondent and to prevent her daughter and grand-daughter from succeeding to her estate in any eventuality. Further there is nothing in the document to suggest that the gift should be effective only if there was a valid adoption.
Taking into consideration the tenor of the document as also the attendant circumstances, there can be little doubt that the settlor intended to convey all her estate to the settlee as persona designata and not by reason of his answering a particular description.
29. We may also point out that in fact this contention was not advanced in the Courts below-
What was urged there was that the legatee i.e., Ramayamma, under the will of Sreeramulu, as his wife had obtained only a limited estate and that the adoption of the respondent had resulted in the divesting of the estate taken by her. In other words, the plea related to the character and the amplitude of the estate taken by the legatee under the will of Sreeramulu. That point was not raised before us and rightly, in our opinion, having regard to decided cases, namely, AIR 1937 PC 139 : ILR 50 Mad 508, and Lakshmjnarasimham v. Rajeswari, : AIR1955AP278 . For these reasons, we negative this contention also. No other question was argued before us.
30. It follows that the decrees and judgments of the Courts below should be confirmed and the appeals dismissed with costs.