1. The lower appellate Court has written a vary scrappy judgment in a very interesting case under the Hindu Law. The father of the three defendants-appellants, one Sarnam by name, was adopted by Kura. This is now a finding of fact and cannot be questioned in second appeal. I shall consider the facts of the case accepting the finding. There was disagreement between the trial Court and the lower appellate Court. It is another finding of fact which I accept because it has been so held by both the Subordinate Courts that plaintiff was adopted by Kura after the death of his natural father Mehru. On this ground the trial Court held that Sarnam having inherited a share in his natural father's property cannot be divested of that property on adoption by Kura. The plaintiff who, as is usual, came to Court on false allegations, alleged falsely that the defendants had never been in possession of the property and that their father ceased to be in possession on his adoption. This case was quite false. Even after the adoption Sarnam had continued to share in the profits of the family of his birth.
2. The trial Court was of opinion that the property of Mehru once having been invested in the name of Sarnam, Sarnam could not be divested of such property on his adoption. The lower appellate Court disagreed with this view and, in my opinion, correctly. There was no vesting of any property of Sarnam on Mehru's death. Sarnam at his birth got a vested interest in the family property being a Hindu son. It therefore makes no difference as to extinction of a person's rights in his natural family whether he be adopted during the lifetime of his natural father or after the death of his natural father. The lower appellate Court has avoided the view of divesting the property unnecessarily. Every Hindu son at birth is vested with joint ancestral property and he is divested on adoption. With his usual lucidity, Mookerjee, J., has thus enunciated the law on the subject of adoption in the case of Birbhadra Nath v. Kalpataru Panda (1905) 1C LJ 388. This view [that is of their Lordships of the Privy Council in Kali Komul Mosumdar v. Uma Shankar Moitra (1884) 10 Cal 232] is founded on the proposition that the theory of adoption involves the principle of complete severance of the child adopted, from the family in which he is born, and his complete substitution into the adopter's family, as if he were born in it. To put the matter in another way: an absolute adoption appears to operate as birth of the boy in the family of adoption and as civil death in the family of birth, having regard to the legal consequences that are incidents of such adoption.
3. On Sarnam's adoption therefore the rights of the parties would be governed as if Sarnam had died at that moment with regard to the natural family and been born to his adoptive father. He will therefore be divested of his rights in the property of his natural family and vested with rights in the family of his adoptive father. So far I agree with the opinion of the lower Court though not in the reasons given.
4. I also agree with the concurrent findings of both the Subordinate Courts that no question of adverse possession can arise because the plaintiffs are admittedly in possession of the property which has not been partitioned. It appears that the plaintiffs' share between themselves has not been determined, and even if Sarnam, and after him his sons, continued to derive benefit from the property in suit, this fact cannot start adverse possession from the date of Sarnam's adoption. Both the Subordinate Courts have also rightly held that a suit for declaration was sufficient, as the plaintiffs are at present in possession of the property in suit.
5. This disposes of grounds of appeal Nos. 2, 3 and 4. In ground of appeal No. 2 it was alleged that Sarnam was separate from his brothers, but the entire trend of the proceedings in the two subordinate Courts convinces me that there has been no partition and that Sarnam was not separate from his brothers when he was adopted. I hold accordingly.
6. As to ground of appeal No. 5, though only one plaintiff appealed against the dismissal of the suit, the lower Court had power to set aside the entire decree of the trial Court and grant relief to all the plaintiffs.
7. One difficulty however remains. It has not yet bean decided whether the defendants or anyone of them were in existence or not when Sarnam was adopted. My view would be, though I do not record it as a definite finding, that if any of the defendants was in existence on the date of the adoption of Sarnam he would be vested with interest in the property and Sarnam's adoption, which would involve Sarnam's civil death as regards the property in suit would not, as a matter of course, have the same effect on the rights of his son or sons. I think I would hold that if Sarnam's sons, or even one of them, were in existence when Sarnam was adopted, the plaintiff's suit would fail.
8. Such being my opinion, at least at present, I refer the following issue for decision to the lower appellate Court:
9. Was any of the defendants born prior to the date of the adoption of Sarnam?
10. The parties shall be permitted to produce fresh evidence. Return shall be made within three months of to-day's date and the appeal shall be laid before me. Ten days' time shall be granted for filing objections on return of the findings.