Jagat Narayan, C.J.
1. On an application by the accountable persons under Section 64(1) of the Estate Duty Act, 1953, the Central Board of Direct Taxes has referred the following question of law to this court;
' Whether, on the facts and in the circumstances of the case, the entire property held by the deceased was correctly included in his estate as property passing or deemed to pass on his death for purposes of estate duty '
2. The facts giving rise to the reference are these Budhmal Dugar, the deceased person, along with his brother, Sumermal Dugar, constituted a Hindu undivided family hiving ancestral properties. There was a partition between the brothers in 1938 and the deceased received his share of the family properties. He died on March 17, 1954, leaving his widow, Smt. Dhani Devi, who adopted Jhavermal to her husband 11 days after his death. Smt. Dhani Bai and Jhavermal filed a return under the Estate Duty Act in which they claimed that the deceased constituted a Hindu undivided family along with his wife, Smt. Dhani Bai, and in view of the adoption which she made 11 days after the death of her husband, the deceased was competent to dispose of only one-third of the family, properties, the reason being that by a legal fiction the adopted son is like a posthumous son, who is deemed to have come into existence before the death of the adoptive father. This contention was overruled by the Deputy Controller who held that as the deceased was the sole surviving coparcener the entire properties held by him passed on his death under Section 5 of the Act, he being competent to dispose of the entire properties at the time of his death. He accordingly levied estate duty on the whole of the estate. The accountable person then filed an appeal to the Central Board of Direct Taxes, New Delhi, which was dismissed. On their application under Section 64(1) the above question of law was thereafter referred to this court.
3. Having heard the learned counsel for the parties we are of the opinion that the view taken by the authorities below is erroneous. It is not disputed that the, property in the hands of Budhmal Dugar after he separated from his brother had already been impressed with the character of joint family properties before it came into his hands as was held by their Lordships of the Supreme Court in Narendranath v. Commissioner of Wealth-tax, 74 I.T.R. 190 (S.C.). The partition did not affect the character of these properties which did not cease to be joint family properties in the hands of Budhmal Dugar. Their Lordships approved the decision of the Judicial Committee in Attorney-General of Ceylon v. Ar. Arunachalam Chettiar (No. 2),  A.C. 540 ;  34 I.T.R. (E.D.) 42, 45; 3 E.D.C. 825, 827 (P.C.). One Arunachalam, Nattukottai Chettiar, and his son constituted a joint family governed by the Mitakshara school of Hindu law. The father and son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern countries. The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in the Hindu undivided family to which a number of female members belonged. Arunachalam died in 1938, shortly after the Estate Dirty Ordinance No. 1 of 1938 came into operation in Ceylon. By Section 73 of the Ordinance it was provided that property passing on the death of a member of a Hindu undivided family was exempt from payment of estate duty. On a claim to estate duty in respect of Arunachalam's estate in Ceylon, the Judicial Committee held that Arunachalam was at his death a member of the Hindu undivided family, the same undivided family of which his son, when alive, was a member and of which the continuity was preserved after Arunachalam's death by adoptions made by the widows of the family and since the undivided Hindu family continued to persist, the property in the hands of Arunachalam as a single coparcener was the property of. the Hindu undivided family. The following passages were quoted from earlier judgments of the Judicial Committee in Pratapsingh Shivsingh v. Agarsinghji Raisinghji,  L.R. 46 I.A. 97. 107:
' ' 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. '
4. Anani Bhikappa Patil v. Shankar Ramchandra Patil,  L.R. 70 I. A. 232, 239; A.I.R. 1943 P.C. 199:
''A Hindu family cannot be finally brought to an end while it. is possible in nature or law to acid a male member to it. ' '
5. The Judicial Committee went on to observe in Arunachalam's case :
' The nature of the interest of a single surviving coparcener was the subject of exhaustive evidence by expert witnesses and their Lordships were referred to and studied numerous authorities in which in reference to his interest language was used not incompatible with his being regarded as the 'owner' of the family property. But though it may be correct to speak of him as the 'owner', yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality; it is such, too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property. Once again their Lordships quote from the judgment of Gratiaen J. : ' To my mind it would make a mockery of the undivided family system if this temporary reduction of the coparcenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparcener/ To this it may be added that it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners. It was urged that already the difference is there since a single coparcener can alienate the property in a manner not open to one of several coparceners. The extent to which he can alienate so as to bind a subsequently adopted son was a matter of much debate. But it appears to their Lordships to be an irrelevant consideration. Let it be assumed that his power of alienation is unassailable; that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it, and, if he does not alienate it, that is what it remains. The fatal flaw in the argument of the appellant appears to be that, having labelled the surviving coparcener ' owner ', he then attributed to his ownership such a congeries of rights that the property could no longer be called ' joint family property '. The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of word ' owner ' in this connection. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family.'
6. It will be seen that the Judicial Committee rejected the contention that since a single coparcener had full power over the property held by him he must he held to be the absolute owner. It was held that the property continued to be the joint family property so long as there was a widow of a coparcener alive who could continue the line either by giving birth to a posthumous son or by adopting one.
7. It will thus be seen that the deceased person was a member of a Hindu undivided family consisting of himself and his wife after his separation from his brother. The argument of the learned counsel for the revenue that the properties which he left were his separate properties since the date of partition is not tenable.
8. Coming now to the question as to the interest of the deceased person in the joint family properties at the time of his death it is sufficient to referto the decision of their Lordships of the Supreme Court in Krishnamurthi v. Dhruwaraj, A.I.R. 1962 S.C. 59. The following pedigree will help in understanding the facts of that case :
N (died 1892)
daughter K Son B (died 1885)
(died 1933) =wife T
Son V Son D by adoption in 1945
(died 1934) (respondent-plaintiff)
9. N was possessed of joint family property, which was inherited by his daughter, K, on his death in 1892. On the death of K the property was inherited by her son, V. On the death of V the family property was inherited by his two sons, the appellants-defendants. About 11 years after the death of V, B's widow, T, adopted a son, D, to her husband, B. This Son, D, instituted the suit for the recovery of the property from the two appellants. The appellants denied the respondent's right to the property contending that K was the owner of the property and thus* became a fresh stock of descent and that the appellants had inherited the property from their father, V, to whom it had been alienated by K in 1930. The High Court held that the alienation of K of her property to V in 1930 was not binding on the respondent as it amounted to gift of immovable property and was not made by a registered document. It further held that the respondent could divest the appellants of the property which belonged to the respondent's adoptive grand-father and upheld the decree of the trial court with respect to the property which had gone to the possession of K on the death of her husband. Their Lordships of the Supreme Court dismissed the appeal and affirmed the decree of the High Court. It was observed :
' This court considered the rights of an adopted son with respect to the property of his adoptive father and of the collaterals in Srinivas Krishnarao v. Narayan Devji,  1 S.C.R. 1 ; A.I.R. 1954 S.C. 379. The principles to be deduced from what was said in this case may be summarised thus :
(i) An adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption on the ground that in the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son.
(ii) As a preferential heir, an adopted son (a) divests his mother of the estate of his adoptive father, (b) divests his adoptive mother of the estate she gets as an heir of her son who died after the death of her husband.
(iii) A coparcenary continues to subsist so long as there is insistence a widow of a coparcener capable of bringing a son into existence, by adoption ; and if the widow made an adoption, the rights of the adopted son are the same as if he had been in existence at the time when his adoptive father died and that his title as coparcener prevails as against the title of any person claiming as heir to the last coparcener.
(iv) The principle of relation back applies only when the claim made by the adopted son relates to the estate of his adoptive father. The 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 as on the date of his death. This principle of relation back cannot be applied when the claim made by the adopted son relates not to the estate of his adoptive father but to that of a collateral. With reference to the claim with respect to the estate of a collateral, the governing principle is that inheritance can never be in abeyance, and that once it devolves on a person who is the nearest heir under the law it is thereafter not liable to be divested. When succession to the properties of a person other than an adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested could not be divested.'
10. As explained in Anant Bhikappa Patil v. Shankar Ramchandra Patil, the adopted son is the continuator of his adoptive father's line exactly as an auras a son, and an adoption, so far as the continuity of the line is concerned has a retrospective effect: whenever the adoption may be made there is no hiatus in the continuity of the line. In order that there may be no break in the continuity of the line the adopted son must be deemed to have come into existence before the death of his adoptive father. If he does not come into existence before the death of his adoptive father there will be a break in the line. Therefore, the legal fiction is that the adopted son is in existence at the time of the death of the adoptive father. It stands to reason, therefore, that at the time of his death the deceased person could not have disposed of the joint family properties on account of this legal fiction. Section 39 of the Estate Duty Act runs as follows :
'39. Valuation of interest in coparcenary property ceasing on death.-
(1) The value of the benefit accruing or arising from the cesser of acoparcenary interest in any joint family property governed by the Mitak-shara school of Hindu law which ceases on the death of a member thereof shall be the principal value of the share in the joint family property which would have been allotted to the deceased had there been a partition immediately before his death.
(2) The value of the benefit accruing or arising from the cesser of an interest in the property of a tarwad or tavazhi governed by the Marumak-kattayam rule of inheritance or of a kutumba or kavaru governed by the Aliyasantana rule of inheritance which ceases on the death of a member thereof shall be the principal value of the share in the property of the tarwad or tavazhi or, as the case may be, the kutumba or kavaru which would have been allotted to the deceased had a partition taken place immediately before his death.
(3) For the purpose of estimating the principal value of the joint family property of a Hindu family governed by the Mitakshara, Marumak-kattayam or Aliyasantana law in order to arrive at the share which would have been allotted to the deceased had a partition taken place immediately before his death, the provisions of this Act, so far as may be, shall apply as they would have applied if the whole of the joint family property had belonged to the deceased.'
11. As we have already pointed out above by a legal fiction the adopted son is like a posthumous son who is deemed to have come into existence before the death of the adoptive father so that there is no break in the continuity of the line. Jhavermal will, therefore, be deemed to have come into existence immediately before the death of Budhinal Dugar. Therefore at the time of his death the joint family will be deemed to have consisted of the deceased person, his adopted son and his wife. The wife is not entitled to claim a partition. Only the father and the son could have claimed it. The share of the deceased person at such a partition would have been one-third. In view of the fiction enacted in Section 39 of the Estate Duty Act the share of the deceased person in the family properties at the time of his death was one-third and this alone will be deemed to have passed on his death. We may here refer to the dictum of Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council,  A.C. 109, 132 ;  2 All E.R. 587, 599 (H.L.):
' If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that havingdone so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'
12. The learned counsel for the revenue relied on the obiter observations of the Judicial Committee in Krishnamurthi v. Krishnamurthi, A.I.R. 1927 P.C. 139, 144 contained in the following passage :
' It will be apparent from this examination that it is not possible to reconcile all the decisions, and still less the reasons on which they have been based. Their Lordships will, therefore, examine the matter on principle. When a disposition is made inter vivo a 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.' The observation relied upon has been underlined* by us above.
13. We are of the opinion that the above observation runs counter to the decision of their Lordships of the Supreme Court in Krishnamurthi v. Dhruwaraj. In that case it was held that an adopted son is entitled to take in defeasance of the rights acquired prior to his adoption on the ground that in the eye of law his adoption relates back by a legal fiction to the date of the death of his adoptive father, he being put in the position of a posthumous son. The posthumous son is already in the womb of the mother before the father dies. The adopted son is similarly deemed to be in existence at the time when the father dies. He must naturally come into existence by the legal fiction immediately before the death of the father. He will take in defeasance of the legatees of his adoptive father. For the legatees could only have taken away the property after the death of the adoptive father whereas the rights of the adopted son are deemed to arise before the death of the adoptive father,
14. We, accordingly, answer the question in the negative in favour of the accountable persons and hold that only one-third of the family properties will be deemed to have passed on the death of Budhmal Dugar, deceased.
15. The accountable persons are entitled to recover costs of this reference, which we assess at Rs. 200.