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Venkalakshmi Ammal and ors. Vs. Jagannathan (Minor) and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberAppeal No. 93 of 1957 with memorandum of Cross objections and A.A.O. No. 282 of 1957
Judge
Reported inAIR1963Mad316
ActsHindu Law; Hindu Adoptions and Maintenance Act, 1956
AppellantVenkalakshmi Ammal and ors.
RespondentJagannathan (Minor) and ors.
Appellant AdvocateK.V. Venkatasubramania Ayyar and ;P.S. Srisailam, Advs.
Respondent AdvocateB.V. Viswanatha Ayyar, ;V.S. Ramakrishnan and ;R. Sitaraman, Advs.
DispositionAppeal partly allowed
Cases ReferredAppalasami v. Suryanarayanamurti
Excerpt:
family - adoption - hindu law and hindu adoptions and maintenance act, 1956 - under hindu law adoption made for continuance of fulfilment of obligations to ancestors which is theory of spiritual benefit and for securing a line of descendants to inherit an estate - secular consideration or secular factor receded to background as secondary in significance - validity of adoption became divorced from its consequences upon property and adoption by widow of son who survived his father held valid even though widow of father might have been invested with specific power to adopt because power was really at end when son succeeded to his father and became capable of continuing line itself or left widow who could exercise power on his behalf - continuance of line equally validly secured by adoption.....anantanarayanan, j. 1. the main appeal (a. s. no. 93 of 1957) is by defendants 1, 2, 3, 4 and 5 in the court below in a suit by a minor represented by his next friend adoptive mother, instituted in forma pauperis for possession, and, alternatively, for partition of the suit properties. this appeal involves a question of considerable interest and significance, with reference to the hindu law of adoption as it stood prior to the recent enactments which have attempted a partial codification of the hindu law. that question, broadly stated, is whether, upon the theory of spiritual benefit, which is now the guiding principle in determining the validity of an adoption, the widow of a predeceased son (the daughter-in-law) could validly adopt to her husband, after the death of the father-in-law,.....
Judgment:

Anantanarayanan, J.

1. The main appeal (A. S. No. 93 of 1957) is by defendants 1, 2, 3, 4 and 5 in the Court below in a suit by a minor represented by his next friend adoptive mother, instituted in forma pauperis for possession, and, alternatively, for partition of the suit properties. This appeal involves a question of considerable interest and significance, with reference to the Hindu Law of adoption as it stood prior to the recent enactments which have attempted a partial codification of the Hindu Law. That question, broadly stated, is whether, upon the theory of spiritual benefit, which is now the guiding principle in determining the validity of an adoption, the widow of a predeceased son (the daughter-in-law) could validly adopt to her husband, after the death of the father-in-law, who had himself left a widow alive on the date of the adoption. There is a related question whether, assuming such an adoption to be valid, the adopted heir (the minor plaintiff in this case) could upon the doctrine of dating back of the rights of an adopted heir to the date of death of his adoptive father divest the widow of the father-in-law, who had succeeded to an undivided coparcenary estate (namely, the widow of the adoptive grandfather), not merely of the share of the adoptive father, but of the entire interest in the property. The first question which I have earlier formulated, is one that is res integra in a substantial, if not a formal, sense; though there are several decisions propounding the principles applicable to closely analogous situations, they have to be distinguished for important reasons, and there is no decision which settles the issue, strictly upon the theory of spiritual benefit. For this reason, the facts have to be stated somewhat extensively, for an appreciation of the manner in which the conflict has arisen in the present case, and both the decisions which have an indirect relevance to the main issue, and the actual Hindu Law texts have to be carefully examined.

2. The memorandum of cross-objections in the appeal is by the minor plaintiff represented by his adoptive mother (first respondent), and is limited to a simple finding of fact concerning item 3 of the 'C' Schedule properties and property of the 'F' Schedule. C. M. A. No. 282 of 1957 is by the 28th and the 31st defendants in the Court below, who were alienees in respect of certain items from defendants 1 to 4, and ex parte in the suit. This appeal seeks to canvass the propriety of the order dismissing the application of these appellants to set aside the ex parte decree under Order IX, Rule 13, Code of Civil Procedure.

3. For the purpose of appreciating the facts, it is essential to have in mind, throughout, the appended genealogical table which also conveniently embodies the dates of certain events.

PAPAYA

|

_______________|________________

| |

| |

Rama Iyer, Chandrasekara

| |

| |

Kuppu Subbaraya

| |

| |

Annadu alias Ramasami Chandrasekara

(Born 1876/1878) |

Died on 25-5-1944 ___________|___________________________

Married Venkalakshmi | | |

(1st defendant.) | | |

| K.C. Subramanian K.C. Narasimhan K.c. Ramaswami

___|_________________________ (P. W. 2) (P. W. 6)

| |

| |

Venkatasubramanian Meenakshi (D2)

(Died on 2-2-1925) Married Narayan

Married Janki. Srowthigal (D3)

| |

| ________|__________________________

Jagannathan (adopted | |

by janaki on 29-5-1952) | |

(Plaintiff) | Chandramowleswaran

| alias Anantaraman

| (5th defendant) (adopted

| by Venkalakshmi, first

| defendant, on 7-7-1953)

|

Jagadisan (D4).

4. It must be immediately stressed that this genealogical table, relied on by plaintiff (first respondent,) has not been accepted by the appellants in A. S. No. 93 of 1957. Proof of the genealogy depends upon two factors. Firstly, we have the document Ex. A-18, purporting to have been executed by Chandrasekara of the collateral branch, father of P. Ws. 2 and 6 and K. C. Subramanian. P. Ws. 2 and 6 have both given evidence concerning the composition of the genealogy, and sworn that, though it was not signed by any one, it is in the handwriting of Chandrasekara, and was prepared some 10 or 15 years prior to suit. Apart from this, we have the oral evidence of P. W. 2 and P. W. 6 concerning the Sapinda relationships, and there is no alternative table of relationships set out by the appellants, or advanced by them. Hence, for the purposes of the appeal, the genealogy might be taken as established.

5. The entire suit concerns the validity of the two rival adoptions, and the claim to the estate of Ramaswami Iyer, by the rival adopted heirs. Ramaswami Iyer was born in either 1876 and 1878, and he died on 25-5-1944. As we shall later, he undoubtedly inherited certain ancestral properties, forming a nucleus. But the adequacy of that nucleus to account for the estate which he actually left at death, is one of the matters in bitter controversy between the parties; similarly, the nature of that estate whether the properties were ancestral in character, or self-acquired. Ramaswami Iyer had a son Venkatasubramanian who predeceased the father and died on 2-2-1925, childless, but leaving a widow Janaki (next friend of the plaintiff). Ramaswami Iyer was suffering, from hydrophobia (rabies) for some time, and, though he survived for years after Venkatasubramanian, he died in 1944 without having effected any adoption, but leaving the estate to be taken by his widow Venkalakshmi (first defendant).

It is a matter of some interest and importance to note that the daughter-in-law Janaki sued Ramaswami Iyer for maintenance in O. S. No. 191 of 1943, District Munsif's Court, Erode, and that Ex. B-6 is a registered document in settlement of the said suit claim. In Ex. B-6, Janaki makes an admission that the entire properties of Ramaswami Iyer were his self-acquired properties, and certain provisions follow in settlement of the claim of the daughter-in-law for maintenance according to the decision given by the mediators. On 29-9-1952 Janaki purported to adopt and did adopt the minor plaintiff Jagannathan. Prior to this, she communicated her intention to adopt, to the nearest Sapindas, namely, P. W. 2, P. W. 6, their brother K. C. Subramanian, and uncle K. R. Narasimha Iyer. K. R. Narasimha Iyer apparentlyaccorded his consent in the terms of his letter Ex.A-4 proved by the scribe (P. W. 3). Similarly,Janaki (P. W. 10) issued a registered letter dated21-8-1952 (Ex. A-2) to Venkalakshmi (first defendant D. W. 3) and the second defendant (Meenakshi). She intimated to them that both her husband (Venkatasubramanian) and father-in-law(Ramaswami Iyer) had died without male issue,and that she was hence anxious to continue theline of her husband by adopting a son to him.She claimed the legal right to do so, and thereupon the first defendant (D. W. 3) sent a replynotice (Ex. A-5) to P. W. 10, denying her rightto make such an adoption.

There can be no doubt that the adoption took place, that Sapinda relations, such as P. W. 2 and P. W. 6, were present at the adoption and authorised it, that ceremonies such as Datta Homam etc., were performed on the occasion, and that a registered deed (Ex. A-1 dated 29-9-1952) also came into existence to put the seal of law upon the status of the minor plaintiff, beyond any possibility of doubt or cavil. Sometime afterwards, on 7-5-1953, Venkalakshmi (first defendant) purported to take in adoption the fifth defendant, the second son of Meenakshi (second defendant) and Narayanan Srowthigal (third defendant). The main issues of fact in the litigation related to the adoption of the plaintiff, the adoption of the fifth defendant by the first defendant, and the character of the properties left by Ramasami Iyer.

The learned Subordinate Judge held that the adoption of the plaintiff was both true and valid, that (with certain exceptions) the estate of late Ramasami Iyer consisted of joint family properties, and that the plaintiff divested the first defendant of those properties by virtue of his rights as an adopted heir. With regard to the adoption of the fifth defendant by the first defendant, the learned subordinate Judge observed, after holding that the adoption of the plaintiff by Janaki (P. W. 1) was true, that this adoption of the fifth defendant by the first defendant (D. W. 3) was 'otherwise', an oddly obscure phrase. But what he appears to have intended was that this was not an adoption with the consent of the Sapindas, that it was not valid in view of the prior valid adoption of the plaintiff and that, therefore, it could not prevail as against the prior adoption even if, as a matter of fact, such a ceremony had been celebrated. It is of some interest to note, in this context, that this second adoption is also evidenced by a registered document dated 7-5-1953, executed by the first defendant (Ex. B-10).

6. The questions relating to the character of the estate left by the late Ramasami Iyer, and the extent to which the minor plaintiff, even if his adoption is to be held valid, could claim to divest Venkalakshmi (first defendant) of that estate, who undoubtedly succeeded to those properties on 25-5-1944 as the heir of late Ramasami Iyer and, who held them subsequently as such, require and deserve a separate analysis, factually to a certain extent, but also necessitating the application of certain principles of law expounded in two or three decisions. I shall deal with these questions in due course. For the time being I shall confine myself to an analysis of the arguments advanced by the learned Advocate-General on behalf of the appellants seeking to impugn the validity of the adoption of the plaintiff.

7. Those arguments have, again to be appreciated in the context of a catena of decisions on this aspect of the Hindu Law of adoption. It is only after examining the decisions, and the arguments of the learned Advocate General as springing from them and from the texts, that it would be profitable to proceed to the actual texts cited by him. For the moment, the broad propositions of the learned Advocate-General could be formulated as follows. In the latest decision of the Supreme Court, Gurunath v. Kamalabai, : [1955]1SCR1135 , will be found an examination of a series of decisions commencing from Bhoobun Moyee v. Ram Kishore, 10 Moo Ind App 270 (PC), upon the aspect of the power of the widow to continue the line by making an adoption to her deceased husband, when that power could be said to be at an end, and the manner in which such an adoption could operate to divest any one who had succeeded to the estate of the last full-owner. As their Lordships of the Supreme Court have themselves observed, and as can be easily shown by a review of certain of the decisions, a reorientation was given to the entire doctrine by Amarendra Man Singh v. Sanatan Singh , till which decision it was frequently the extent to which vestiture or divesting could take place, as an effect upon property, which determined the validity of the adoption itself. But in this case (i. e., Amarendra's case 'stress was laid on the spiritual rather than on the temporal aspect of adoption''. As observed by the Judicial Committee in Amarendra's case :

'In their Lordships opinion, it is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites. And it may well be that if this duty has been passed on to a new generation, capable itself of the continuance, the father's duty has been performed and the means provided by him for its fulfilment spent : the 'debt' he owed is discharged, and it is upon the new generation that the duty is now cast and the burden of the 'debt' is now laid.

It can, they think, hardly be doubted that in this doctrine, the devolution of property, though recognised as the inherent right of the son, is altogether a secondary consideration ......... that the validity of an adoption is to be determined by spiritual rather than temporal considerations;

One of the propositions laid down in the case, therefore, was that the power to adopt did not depend upon any question of vesting or divesting of property. It had to be determined mainly, if not exclusively, upon the doctrine of spiritual' benefit. As an accessory aspect of this proposition, the learned Advocate-General argues that in, the catena of decisions, Mt. Bhoobun Moyee's case, 10 Moo Ind App 279 (PC), Padma Kumari Debi v. Court of Wards, 8 Ind App 229 (PC)/ Thayammal v. Venkatarama, 14 Ind App 67 (PC), Madana Mohana v. Purshothama Ranga Bheema Deo, 45 Ind App 156 : AIR 1918 PC 74, Amarendra's case itself , Vijayasingji v. Shivsingji , which applied the rule enunciated in Amerandra's case and restated and reaffirmed it, and up to Anant Bhikappa v. Shankar Ramachandra , the authority of a predeceased father's widow to make a valid adoption to him, generally regarding the cases, was considered at an end, when the son who survived his father died, leaving either a son or a widow who could perpetuate the line by adoption. In other words, to use the convenient metaphor of the torch as symbolic of the right and duty to offer oblations to the ancestors (Manes), the torch is always with the last male descendant, to be handed over by him to a son or to be left as a power with the widow.

It is on this reasoning that, when the son died leaving a widow, the authority of the predeceased father's widow to adopt, even if expressly granted, was regarded as at an end. According to the learned Advocate General, there is a 'Semantic' difficulty or confusion, in applying the reasoning of this line of cases to the present facts. Basing ourselves upon the doctrine of spiritual simpliciter, and eschewing all considerations relating to the vestiture or divesting of an estate, it is obvious that the obligation rested on Ramasami Iyer alone, and was never with Venkatasubramanian. For, it was Venkatasubramanian to whom Ramasami Iyer looked for fulfilling these spiritual obligations after him, and, when Venkatasubramanian died childless in 1925, the obligation revived in Ramasami Iyer to provide for the continuance of the line, by achieving a substitution. That is what the texts contemplate and countenance, when carefully examined. Ramasami Iyer could, of course, have either adopted a son to himself, or authorised his daughter-in-law (Janaki) to make a valid adoption. But the duty and, the power inhered in Ramasami Iyer alone during his lifetime; and, when he died, the power was left with his widow Venkalakshmi (first defendant), who alone could make a valid adoption. Since Venkatasubramanian predeceased Ramasami Iyer, there could not be any question of a power in his widow Janaki (P. W. 10) to make a valid adoption to her deceased husband, on the doctrine of spiritual benefit. That is the argument, sought to be supported both by the texts, and by a scrutiny of the decisions.

8. We might immediately proceed to analyse all the leading decisions upon this aspect, before considering the texts themselves.

9. In Bhooban Mayee's case, 10 Moo Ind App 279 (PC) the facts were that G., being childless, executed a deed of permission by which he gave power to his wife C to adopt a son. He afterwards had a son B by his wife C. In 1819 G executed a second instrument in which he reaffirmed the power of C to adopt in these terms :

'If, which God forbid, the male child of your body be non-existent, then you will adopt a son ............... for the purpose of performing mine or your Sradh and other rites'.

B on coming of age, succeeded to the properties of his father G who predeceased him. On B's death, childless, his widow succeeded as heir to her husband taking a vested interest in the whole of his estate. Some time after B's death, C, his mother, exercised the power given to her by the instrument of 1819, by adopting a son to G. The adoption was held void, as the power was incapable of execution. The following passage is significant-

'If B. Kishore had died unmarried, his mother C. Debia would have been his heir, and the question of adoption would have stood on quite different grounds. By exercising the power of adoption, she would have divested no estate but her own, and this would have brought the case within the ordinary rule. But no case has been produced, no decision has been cited from the textbooks, and no principle has been stated to show that by the mere gift of a power of adoption to a widow, the estate of the heir of a deceased son vested in possession, can be defeated and divested'.

It is noteworthy that, in this case, the validity of the adoption was itself judged by the consequences of vestiture or divesting the estate.

10. In 14 Ind App 67 (PC), an adoption with the permission of the Sapindas by a Hindu widow to her husband, after her husband's estate had vested in his son's widow was held invalid.

'The survival of the son's widow and the vesting of the estate in her, put an end to the right of Thayammal, his mother, to adopt a son to his father'.

In Shri Dharnidhar v. Chinto, ILR 20 Bom 250 the facts were that a. separated Hindu (Dharnidhar) died childless in 1852, leaving three widows and a daughter-in-law Venubai, the widow of a predeceased son Chintamani. Dharnidhar's estate, was taken on his death by his widows, and ultimately became vested in the survivor of them, one Lakshmi Bai. In 1871, while Lakshmi Bai was in possession, Venubai adopted a son. In 1874, by virtue of a decree against Lakshmi Bai, a large portion of the estate passed into the possession of a third party, and in 1886 the plaintiff sued as the adopted son of Venubai entitled to the estate of his adoptive grandfather Dharnidhar. It was held that he could not recover. On Dharnidhar's death the estate vested in the widows with remainder to his collateral heirs, and the adoption of plaintiff by Venubai, which could only be to her husband Chintamani, could not divest Lakshmi Bai of the estate she had taken as the heir of Dharnidhar.

It is noteworthy that the invalidity of the adoption was based on the inability of adopted heir to divest the surviving widow of the property, she took from the last owner, and that this confusion between the spiritual and secular criteria, if I may so term it, continued till Balu Sakharam v. Lahoo Sambaji : AIR1937Bom279 , which overruled this and affirmed the test of spiritual benefit alone, as regards the validity of the adoption, proper. In LR 45 Ind App 156 : AIR 1918 PC 74, it was held that an authority given by the Mitakshara, governed Hindu to his wife to adopt could not be exercised to make a second adoption, when the son first adopted had died after attaining legal capacity to continue the line, it may be by the adoption to him of a son by his own widow. In Pratapsing Shivsing v. Agarsingji Raisingji, 46 Ind App 97 : ILR 43 Bom 778 : AIR 1918 PC 192 it was observed that, unless a time-limit is imposed, the right of a Hindu widow to adopt exists so long as the power is not extinguished or exhausted. Her right did not depend on her inheriting her husband's estate, as a Hindu female owner. She could exercise the power, even though the property was not vested in her.

Here, we see the commencement of that differentiating principle which culminated in Amarendra's case and rendered the theory of spiritual benefit the determinant, irrespective of the consequences of the adoption upon property. Thus, Amarendra's case affirmed 46 Ind App 97 : AIR 1918 PC 192 and explained the implications of 45 Ind App 156 : AIR 1918 PC 74, already referred to. In Balu's case, ILR 1937 Bom 508 : AIR 1937 Bom 508 it was held that the adoption made by the widow of a predeceased coparcener after the termination of the coparcenary, by the death of the surviving coparcener, is a valid adoption, but it would not have the effect of reviving the coparcenary and would not divest the property from the heir of the last surviving coparcener (other than the widow), or those claiming through him. In other words, the theory of spiritual benefit, as the determinant of the validity of an adoption by a widow, was fully worked out; it was logically separated from the consequences of divesting and vestiture.

11. From all this, it follows that the case-law itself exhibits a certain line of evolution. Though, under the Hindu Law, an adoption is usually made both for the continuance of the fulfilment of obligations to ancestors, which is the theory of spiritual benefit, and for securing a line of descendants to inherit an estate, the secular consideration or the secular factor receded to the background, as secondary in significance. The validity of an adoption became divorced from its consequences upon property and an adoption by the widow of a son, who survived his father, was held valid, even though the widow of the father might have been invested with a specific power to adopt, because that power was really at an end when the son succeeded to his father and became capable of continuing the line itself or left a widow who could exercise the power en his behalf.

12. Obviously, we are now concerned with the converse instance of a father surviving a predeceased son, and the consequences which flow when the son leaves a widow who could adopt to him, and the father dies without providing for the continuance of the line also leaving a widow who could adopt. In other words, where the rival claimants to exercise the power are the mother-in-law and the daughter-in-law, how is the validity of any adoption made by either to be judged? The cases that appear at all to have any bearing upon this some what difficult aspect, are ILR 20 Bom 250 already referred to. Anandi Bai v. Vasudev, : AIR1939Bom81 and Piare Lal v. Hem Chand, AIR 1938 Lab. 539 a decision of the Division Bench consisting of Addison and Din Mohammad, JJ. But our difficulty is that none of these cases has any analysis upon the theory of spiritual benefit which, subsequent to Amarendra's case , affirmed in and Balu's case : AIR1937Bom279 is the main determinant.

We have already referred to the facts in ILR 20 Bom 250. It will be noted that the adoption of the plaintiff in that case by the widow of the predeceased son was held powerless to divest Lakshmi Bai, the widow of the father, of the estate to which she had succeeded. The learned Judges observed, 'These facts could not validate for the purposes of inheritance an adoption which, as regards the right to property, was ab initio invalid'. But the difficulty is that the adoption is here being judged upon the basis of consequences to property rights, and there is no discussion upon the doctrine of spiritual benefit. : AIR1939Bom81 is interesting, in the sense that this was also a case of a son predeceasing the father leaving a widow. The father later died leaving a widow who took his property after her husband's death. The subsequent adoption by the widow of the predeceased son, though valid, did not divest the property vested in the father's widow. Dharnidhar's case, ILR 20 Bom 250 is referred to as well as Balu's case : AIR1937Bom279 , but there is no discussion of the issue as related to the doctrine of spiritual benefit. Equally unhelpful is AIR 1938 Lah 539. Here, the adoption by the widow of the predeceased son, after the death of the father leaving his own widow, was actually held invalid. The learned Judge (Din Mohammad, J.) who delivered the judgment, observed:

'A case exactly on all fours with the present case has not so far arisen, but our conclusion is justified by the principles we can deduce by way of analogy from the cases cited at the Bar. The matter of devolution of property may be of secondary consideration, as remarked by their Lordships of the Privy Council in Amarendra's case , but where the primary consideration does not exist, the secondary consideration in itself gains importance.'

With great respect, this appears to us to bye-pass the main issue altogether, which is whether, in a situation of that kind, the widow of the predeceased son has the power to adopt, judged upon the doctrine of spiritual benefit.

13. I have already referred to the crux of the arguments on this aspect, as advanced by the learned Advocate-General for the appellants. This is, simply stated, that the essence of the doctrine is the obligation a man owes to his ancestors to offer oblations, and to provide for a lineal descendant to continue this duty after his death. It logically follows that the last man in the chain of succession is alone the holder of the torch. When he has a son, his obligation to make a substitution is in abeyance, but it revives if the son has predeceased Him. Thus, the son assumes this duty only on his father's death, and when the son predeceases the father, it is the father who holds the symbolical torch, and who has the duty and the power. That being the case, if the father dies later without making any provision, it is his widow alone who could exercise the power by adopting a son to him. The daughter-in-law could not validly exercise this power at all, as her husband was never invested with, or in possession of, this spiritual obligation, and did not die having incurred this debt. The following original passages from Nanda Pandita's Dattaka-Mimamsa, Deyendra Bhatta's Dattaka-Chandrika, Atri and Aitereya Brahmana, are relied upon in support. I may here add that I have set forth the English translations alone in the body of this judgment, using the transalations by Sutherland with slight modifications of my own. The Sanskrit originals are appended in the appendix to this judgment.

Dattaka-Mimamsa by Nanda Pandita.

Section I.

3. On this subject Atri says: 'By a man destitute of a son only, must a substitute for the same, always be adopted: with any amount of inconvenience (Yasmat tasmat prayatnatas), for the sake of the funeral cake, water, and solemn rites.

4. 'A man destitute of a son' (Aputra)' is one to whom no son has been born, or whose son has died: for a text of Saunaka says: 'One to whom no son has been born or whose son has died, having fasted for a son, etc.'. Another reading recites: 'The impotent man or one whose offspring has died'.

28. Besides this part of the text, 'unless with the assent of her husband', is an exceptive exemption from the general prohibition, contained in the pan preceding, 'Let not a woman either give or accept a son', and in it, the assent of the husband is the cause. Therefore, the widow is incompetent (to adopt); for, her husband being dead, since his assent is impossible, the exemption destitute of the cause (to give it effect) is without validity; and other means of deducing (her authority) are wanting.

Thus, the doctrine of every writer, is rendered even consistent.

38. Again, in the precept enjoining the production of a son, the son being the object to be produced, is no means of completion. But this is the case in respect to that precept only, not any other precept--For, from passages of Scripture such as, ('or he is absolved from debt who has issue etc'), this precept resulting: 'Let him procure absolution from debt through a son' it is established, that the son, as being the instrumental cause of such absolution, is a means of completion: and the instrumentality of the son is even expressly declared by Manu, in this and other passages: 'By a son a man conquers worlds, etc.'.

41. Consequently, the son being the instrumental cause, in an act, the object to result from which, is absolution from debt: on his failure, the son given and the rest may without repugnancy, be substitutes, in the same manner, as (at a sacrifice) where the Soma plant is wanting, the Putika is a substitute.

42. This even is made obvious by Manu (who says): 'For, the obsequies would fail'. Because the failure of these would ensure; if on default of a legitimate son, the affiliation of a substitute might not take place. Obsequies are funeral rites, consisting in presenting oblations of food and water, and so forth. In the same manner by Atri also (it is said), 'For the sake of funeral cake, water and solemn rites'. Thus the whole is unimpeachable.

52. The question is thus solved: 'By a son a man conquers worlds etc.'. In virtue of the precept implied in this and other texts and supported by confirmatory passages (such as 'Heaven awaits not one destitute of a son'); on failure of the legitimate son, the son of the wife, and the rest, are ordained to be the eleven-fold substitutes; and in the precept alluded to, an act being required, to operate intermediately, in completing the state of heaven, and the son, severally, as the effect to be produced, and the efficient means: It is added 'For the sake of the funeral cake, water and solemn, rites'.

54. The funeral cake (the Sraddha or funeral repast-water) that is the presenting water in two united palms, and so forth, solemn rites meaning, rites in honour of the deceased, cremation and like. These are the cause (hetu).

55. The reason occasioning the adoption, is the cause. This, from being used in the singular number, shows that these ceremonies collectively, are the cause, and not individually; and consequently, the meaning is that there is not a distinct affiliation, severally for each; but one adoption only, on account of the whole; for on default of a son, the failure of the oblation of food, and other rites, is the consequence.

56 Accordingly, Manu says 'Sages declarer these to be substitutes; for the obsequies would fail (Kriya lopat)'. Here this part, 'for the obsequies would fail' is a reason, sub-joined on a negative hypothesis; 'the meaning is--because, if there were no substitute for a son, the obsequies would fail'.

Dattaka-Chandrika by Devendra Bhatta.

Section I:

3. On this subject Manu says: 'A son of any description must be anxiously adopted by a man destitute of male issue, for the sake of the funeral cake, water and solemn rites; and for the celebrity of his name'. Atri: 'By a man destitute of male issue only must the substitute for a son of some one description always be anxiously made for the sake of the funeral cake, water and solemn rites.'

4. 'By a man destitute of a male issue': that is, by one to whom no son may have been born: or whose son may have died: for a text of Saunaka states: 'One destitute of a son, or one whose son may have died, having fasted for male issue'.

(Aitareya Brahmana 33-1).

If the father sees the face of the living son on birth, he transfers the debt to the son and attains immortality'.

Atri.

By a sonless person only should always a substitute of a son be anxiously made for the sake of funeral oblations, libations of waters and obsequies. If the father sees the face of a living son after birth, he transfers the debts to him, and attains immortality. As soon as a son is born, the father becomes absolved from the debts to paternal ancestors,, on that day he acquires purity, since the son saves from the infernal regions. Many sons are to be secured, if even one may go to Gaya or celebrate the horse sacrifice or dedicate a Nua bull.'

14. What is theory of spiritual benefit that could be gleaned from these Texts set forth here? Though they exalt sonship in general, and dilate upon the spiritual efficacy of sonship however secured (yasmat tasmat prayatnatas) and seem, at the first blush, to yield no further rules of significance, the learned Advocate-General pleads that their cryptic and logical forms do conceal other inner meanings. Because the failure of obsequies is a spiritual catastrophe (kriya lopat), the twin duties of the offer of oblations and the achievement of substitution (lacking a son born to him), always rest heavily on the spirit of the believer in Hindu doctrines. Lacking a son, the man is Aputra, he is a man indebted, and 'a substitute of a son (must) be anxiously made, for the sake of funeral oblations' (Atri). It logically follows, from the very implications of these beliefs, that the son, while his father is alive, has no debt, no obligation. When the son predeceases the father, the father re-awakens to his liability, his religious obligation. He is Aputra, and must achieve the substitution. It is always the last man left alive and sonless, whose ascendants are dead, who is the holder of the symbolic torch.

15. But, upon a very careful consideration or this aspect, we are definitely of the view that, even on the theory of spiritual benefit, the adoption of the plaintiff by Janaki (P. W. 10) must be deemed perfectly valid. Once this is conceded, it is really not necessary to proceed into the factum and validity of the adoption of the fifth defendant by the first defendant, which took place on 7-5-1953. We are not inclined to agree with the learned Subordinate Judge that such an adoption never took place, since there is a registered instrument (Ex. B-10) to evidence it. But, clearly, it could have no effect whatever, if the earlier adoption of the plaintiff was valid, since thereby the continuance of the line of Ramasami Iyer had been unimpeachably secured. There was some very faint attempt made to show that Ramasami Iyer himself contemplated the adoption of the fifth defendant to him, and brought up the boy in his own household. But it is clear beyond doubt that Ramasami Iyer neither expressed any intention in this regard, nor did he give any power to Venkalakshmi (first defendant) to adopt.

Again, it seems at least very doubtful if the consent of the nearest Sapindas to the second adoption was secured. Upon the factual analysis on this aspect, I am in agreement with the view of my learned brother, who has shown that the consent of the nearest Sapindas was certainly not secured by the 1st defendant, and that, lacking any proof of authority to adopt being given by the late Ramasami Iyer, the adoption cannot be upheld. As regards the adoption of the plaintiff, the record amply proves that, if the genealogy is accepted as true, the consent of the nearest Sapindas such as P. W. 2, P. W. 6 etc., preceded and empowered the adoption. The learned Advocate-General does not challenge the factum of the adoption; all that he states is that the adoption of the plaintiff by Janaki was capricious, and made with the indirect motive of securing the estate to the plaintiff, her own brother's son. This argument may be briefly examined, in due course. It is now necessary to set forth the grounds upon which the conclusion is justified that the adoption is perfectly valid, tested upon the theory of spiritual benefits.

16. There are two lines of reasoning which have to be elaborated in this connection. Firstly, the adoption by the widow of a predeceased son to her husband, when her father-in-law is alive, and even after his death, does not at all appear to be unknown to Hindu Law. If, as argued by the learned Advocate-General, the torch-bearer was only the father who survives the son, and, at his death, it is only an adoption to him that could ever be contemplated, it is obvious that this contingency could not have arisen. But, in fact, such cases or instances have arisen. We have already referred to Dharnidhar's case, ILR 20 Bom 250, and to : AIR1939Bom81 . In the Ramanad case, (Collector of Madura v. Mutu Ramalinga Sathupathy), 12 Moo Ind App 397 (PC) there is a passage which is of great interest, as throwing light upon this aspect:

'But the Duttaca Mimamsa of that author (Vidya Narainswamy) clearly and explicity declares the right of the widow to adopt, with the authority of her father-in-law, and whatever other kinsmen of her husband may be comprehended under the etcetera. It cannot therefore be said that the proposition laid down by Mr. Colebrooke and adopted by Sir Thomas Strange, is not supported by at least one of the original treatises of undoubted authority in Dravida. The Dattaca-Mimamsa of Sri Rama Panditha, who is stated by the Judges of the High Court to be an authority, very generally cited in the South of India, also confirms the proposition.'

The Judicial Committee referred, in this decision, to the necessity to obtain the assent of kinsmen to the adoption, because of the presumed incapacity of the widow for independence and again observed that the consent of the father-in-law, 'whom the law points as the natural guardian and 'venerable protector' of the widow, would be sufficient'. The learned Advocate-General could no doubt meet this reference, by observing that all that it does is to state a situation which he does not dispute; that a father-in-law could authorise the widow of his predeceased son to make an adoption. But it is noteworthy that the matter is not put in this form; it is really expounded as a right of the widow of the predeceased son to make an adoption to her husband, no doubt with the assent of Kinsmen and her 'venerable protector' the father-in-law. This implies that the theory of spiritual benefit which is countenanced is the right of the widow of a predeceased son to make an adoption to him, for securing the offer of oblations to him and to his ancestors.

As the learned counsel for the plaintiff-respondent has rightly urged, a contrary view would really mean that the doctrine of spiritual benefit would not include benefit to oneself in the afterlife. In other words, by the adoption of the plaintiff to Venkalasubramanian, oblations are secured to him (Venkatasubramanian) as well as to Ramasami Iyer, and the lineal ascendants of this branch. If it is held that Ramasami Iyer alone could make a valid adoption, this would necessarily imply that Venkatasubramanian is exiled altogether from spiritual benefit, and that his widow is left in the tragic situation, of course, for one who has belief in Hindu doctrine, of being unable to secure the salvation of her husband.

17. In this context, I would like to set forth two other passages from authorities, in support of the same view. In Sarkar Sastry's 'Hindu Law of Adoption' (1916 Edition, Lecture VI, page 264), there is a very interesting passage entitled 'Competition between mother-in-law and daughter-in-law'. The learned author mainly proceeds, not on the doctrine of spiritual benefit, but upon the consequences of divesting and vestiture. But he observes, what is certainly pertinent to our case, that

'if the daughter-in-law adopts first, then the mother-in-law cannot make an adoption during the life of the son adopted by the daughter-in-law, for the father-in-law cannot, under that circumstance, be considered as destitute of male issue, there being that grandson by adoption in existence'.

This does imply that the continuance of the line could be equally validly secured by an adoption by the widow of the predeceased son. Again, in the 'Hindu Law' by the same author (1940 Edition, page 166), the learned author reiterates that the predeceased son's widow could adopt, and that if she does so, the mother-in-law cannot adopt thereafter.

18. Apart from these passages, the real fallacy underlying the line of argument adopted by the learned Advocate-General, appears to be that the doctrine of spiritual benefit cannot be circumscribed within such narrow limits as to exclude the benefit to the person who is exercised about his own welfare in the after-life, or to his widow who is similarly concerned on his behalf. There are certain passages in West and Buhler's 'Hindu Law' (1919 Edition), (by West and Majid), which powerfully support this view. The learned authors state (pages 791-792):

'In the adoption of a son the Hindu aimed, and still aims, at satisfying an exacting group of manes greedy in the other world' for recognition and offerings in this. He looks too for appreciable benefit which he has himself to derive from the future ceremonies, the fruits of which will reach him in the realm of shades. (Manu III, 274, 275). He shrinks with horror from being left destitute beyond the pyre, to suffer the mysterious anguish which awaits the man for whom no son could perform the Sraddhas'.

I am unable to conceive of any language that could more eloquently express the essence of the doctrine. It necessarily follows that, if vitality is to be given to these centuried concepts at all, the anxiety of a man to see that oblations reach him, and that he does not die Aputra (to linger in the torments of the hell 'puth'), but that oblations reach him in the afterlife, should be fully recognised and respected. For these reasons, we have no hesitation in coming to the conclusion that the adoption of the plaintiff by Janaki (P. W. 10) was valid, and in accordance with the law.

19. Before proceeding to the other issues which are mainly issues of fact, except upon one aspect of the consequence, of the adoption, we might dispose of the argument relating to lack of bona fides, and to capriciousness in the widow. In Sitaram v. Harihar, ILR 35 Bom 169, it was laid down that the adoption by the widow should not merely be without any coercion, but, free from any corrupt motive, and with an eye solely to the fitness of the boy to be adopted to fulfil the religious and secular duties binding on a son. In the present case, it is strenuously contended that the conduct of Janaki (P. W. 10) has not been such as to entitle her to consideration on this aspect. During the lifetime of her father-in-law, she not merely did not approach him with a request to permit her to adopt, but brought a suit for maintenance in which she made an admission that the properties were the self-acquisitions of the late Ramasami Iyer. Though Venkatasubramanian died in 1925, Janaki did not make any move till 1944 to secure the consent of her 'venerable protector', her father-in-law, to an adoption.

Even after the death of Ramasami Iyer, she made an adoption only in 1952, and it was probably motivated by desire to secure the estate to her own nephew and to his descendants. We do not think that this argument is really acceptable. Mere postponement can never frustrate the right of the widow to adopt, so long as she is alive. Nor, when she has obtained the consent of her husband's nearest Sapindas, is her motive really material, in determinine the validity of the adoption 'Vellanki Venkata Krishna Rao v. Venkata Rama. 4 Ind App 1 (PC) and Krishnavya v. Venkata Kumara Mahipathi Surya Rao . It is clear that the relations between Janaki and Ramasami Iyer were strained, and the widow probably felt that it would be an utterly futile task to persuade her father-in-law to permit an adoption. After the death of Ramasami Iyer, if Janaki (P. W. 10) could make a valid adoption to her husband, we do not see why that adoption should be challenged, merely because it was made as late as 1952. Again, several considerations must have dictated the choice of the adopted heir, and, the son of a brother might well be a natural choice, in the circumstances. We do not think that, for these reasons, the adoption could be readily impugned as capricious.

20. The two problems that remain, as far as the main appeal is concerned, are these: Firstly, the nature of the estate of the late Ramasami Iyer, and, secondly, whether the plaintiff, on the basis of the validity of his adoption being upheld, could possibly divest Venkalakshmi (first defendant) of the undivided interest of Ramasami Iyer in the estate which passed to her, as his heir, when she took over the entire properties on the death of Ramasami Iyer on 25-5-1944. As I have stated earlier, the second aspect involves an analysis of three main decisions, in which the prior case-law has also been reviewed namely , Srinivas Krishnarao v. Narayan Devji, : [1955]1SCR1 and : [1955]1SCR1135 , which we have referred to upon a different aspect,

21. The estate of late Ramasami Iyer, involved in this suit, consists of 'A' schedule properties in Chennasamudram village, 'B' Schedule land in Kodumudi village, three houses in Kodumudi village comprising Schedule 'C', 'D' schedule lands in Pugalur, 'E' schedule land in Athipalayam village and 'F' schedule property in Thirumangalam village. Of these, as we have already noted, with regard to item 3 mortgage of 'C' schedule and the 'F' schedule property, the conclusion of the learned Subordinate Judge, on the merits of the evidence, was that these were the absolute properties of the first defendant (D. W. 3), having been acquired by her with the income from the estate. With regard to the effects of the Hindu Women's Rights to Property Act XVIII of 1937, the matter is not in dispute. The Act came into force from 14-4-1937, but, as some difficulties were felt in the interpretation of the Act, it was amended on 8-4-1938 by Act XI of 1938. The Amending Act was made retroactive and operative from the date of the main enactment; but even after the amendment, difficulties arose, and the language resulted in conflicting interpretations by High Courts. The validity of the Act was questioned, and it was held by the Federal Court that the Act did not operate to regulate succession to agricultural lands in the Governors' Provinces.

After the decision of the Federal Court, some of the Provinces extended the operation of the Central Act to succession to agricultural lands by passing suitable legislation. In the plaint itself (paragraph 9) it has been pointed out that the first defendant, at best, will be entitled only to a share in the non-agricultural properties, under the provisions of the Hindu Women's Rights to Property Act, bearing in mind the relative dates.

22. Upon the question of the nature of the estate, there is considerable difficulty in this case in appreciating the merits of the record. The principles on which any presumptions could arise that the properties were ancestral in character have been set forth in Mulla's Hindu Law, 12th Edition, Section 233 (pages 342-343). The broad rule is that

'where it is established or admitted that the family possessed some joint property which, from its nature and relative value, may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property, and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise, if the nucleus is such that with its help the property claimed to be joint could not have been acquired'.

There is an initial difficulty in this case that Janaki(P. W. 10) herself admitted in explicit terms in thedeed of maintenance (Ex. B-6), setting the suitclaim in O. S. No. 191 of 1943, District Munsif'sCourt, Erode, that the properties were the self-acquired properties of Ramaswami Iyer. But itcould certainly be contended that this was an admission made under the pressure of obtaining relieffrom a father-in-law, who was on hostile terms withthe daughter-in-law.

Now, there can be no difficulty about the conclusion that Ramaswami Iyer, during his minority, was possessed of properties which could only have been ancestral in character. In that sense, it is impossible to deny the existence of a certain nucleus. But Ramaswami Iyer left properties estimated at over a lakh of rupees in value, and the question is whether this nucleus could have been adequate for the acquisition of the properties, and could justify the presumption that the properties were ancestral, which the defendants have failed to rebut. The record of evidence is to the effect that Ramaswami Iyer was a village munsif getting a small pay, that he had paddy trade and that he was also a broker and commission agent for sales of land. The learned Subordinate Judge rejected the evidence of D.W, 1 and D.W. 3 upon this matter, and emphasised that there was no averment in the written statement about the business activities of Ramaswami Iyer. The learned Subordinate Judge also pointed out that Ramaswami Iyer could not have begun his business in 1890, as he was born in 1876 or 1878, and could only have been 12 years old on that date. D. W. 1 also tailed to produce the accounts of the business, though he admitted that Ramaswami Iyer delivered those accounts to him.

On the contrary, there can be no doubt that a nucleus of ancestral property did exist. It is sufficient to refer (i) to the Survey and Settlement Registers, Exs. A-23 and A-20 with regard to patta No. 4, originally standing in the name of Kuppuswami Iyer, the father of Ramaswami Iyer, and (ii) Ex. A-15, an extract issued by the Sub-Registrar of Kodumudi relating to documents executed by RamasAvami Iyer and in his favour for 39 years from 1886 till 1924. Further, we have Ex. B-1, a sale deed of 1896 for Rs. 4,100/- in which part of the consideration has been set-off in favour of Ramaswami Iyer (the vendee) against a sum due to Ramaswami Iyer in respect of a release deed executed by him. As Ramaswami Iyer seems to have been aged 12 in 1890, he had just emerged from minority at the time of Ex. B-1. This, according to the learned Subordinate Judge, reasonably supports the inference that the release was in respect of ancestral property.

23. But this record does present considerable difficulties in the appreciation of the particulars, and the proper inference to be drawn from them. Items 1 to 48 in Ex. A-15 were executed between 1886 and 1895 when Ramaswami Iyer was admittedly a minor. But the difficulty is that we find sales for varying sums, mostly very limited amounts, as well as certain release deeds. Where was the necessity for the alienation of these properties, if the nucleus had been substantially income-yielding Again, there is no adequate evidence to support the contention of the learned Subordinate Judge that out of the consideration from the sales and releases, later properties must have been acquired. The appellants have filed C. M. P. No. 7246 of 1960 for the admission of certain additional documents in appeal, all of them of the nature of sale deeds of the year 1885 by Kuppammal, the mother and guardian of Ramaswami Iyer, then a minor.

We are not admitting this additional evidence, as I do not think that adequate grounds have been made out for the reception of this additional evidence at this stage of appeal. But the record is not merely not as decisive upon this aspect as one could desire, it is actually inadequate to sustain the finding of the Court. Hence, I agree with my learned brother that the finding on this aspect would have to be set aside and the suit remitted for fresh disposal for a determination of the nature of these properties. Undeniably, with regard to those properties, of Ramaswami Iyer found to be his separate properties, the claim of the plaintiff would have to fail, as they never vested in his adoptive father, and he cannot divest the 1st defendant in respect of her rights by inheritance in them. In any event, in view of the alternative argument raised by the learned Advocate-General upon the question of the extent of the divesting of the properties, which we think has to be allowed to the degree to which it has been pressed, as a minimal case for the appellants it is not necessary to dilate further upon this aspect.

24. The case-law upon the subject of the effects of such an adoption as that of the plaintiff upon the estate of late Ramaswami Iyer is best followed by a scrutiny of the analysis of cases in . The facts of that actual case were, very briefly, as follows. One Bhikappa died in 1905, leaving a widow Gangabai, and an undivided son Keshav. Narayan, divided brother of Bhikappa, died in 1908, and Keshav succeeded to his properties as his heir. Keshav himself died unmarried in 1917, and the properties which were Watan lands, devolved upon a collateral, Shankar (defendant) of another branch. Gangabai, the widow of Bhikappa, adopted Anant (plaintiff) in 1930 and he sued Shankar to recover possession of the properties as the adopted son. The High Court originally held that, as the joint family ceased to exist in 1917 when Keshav died, the adoption, though valid, could not divest Shankar of the properties which he had taken as the heir of Keshav. The Privy Council held that the co-parcenery must be taken to continue so long as there was a widow of the deceased coparcener alive and that the adoption by Gangabai of the plaintiff Anant had the effect of vesting the family estate in Anant, even though it had descended on Shankar.

Chandra v. Gojarabai, ILR 14 Bom 463 is the decision with which the discussion by the Judicial Committee commences. That was a case in which there were two undivided brothers, Bhau and Nana, of whom Nana survived all the other mala members of the family. On his death without issue, his widow Gojarabai took the family property by inheritance from him. After that Bhau's widow adopted the plaintiff, who sued Gojarabai to recover the property. The judgment proceeded on the footing that at Nana's death there was 'no undivided family remaining into which the adopted son could be admitted by virtue of his adoption'. The reasoning was questioned in later decisions, particularly in Balu's case : AIR1937Bom279 . The Judicial Committee referred to the catena of cases, as well as to Amarendra's case , and came to the conclusion that the adoption of Anant being undoubtedly valid, it does take effect on the property which belonged to the joint family, notwithstanding the fact that there was no coparcenery in existence at the date of the adoption. This case is important, as it proceeds to the extreme length of divesting the collateral of the last male owner, in whom the properties had vested even prior to the adoption.

25. All the cases upon this aspect have again been extensively reviewed in : [1955]1SCR1 . It is not necessary, for our present purpose, to proceed into the facts of this case in detail, though certain observations in the judgment of Venkatarama Ayyar, J. are very significant, and, indeed, practically decisive upon the arguments now submitted. Anant's case was dissented from, in the following words :

'In deciding that an adopted son is entitled to divest the estate of a collateral, which had developed by inheritance prior to his adoption, Anant Bhikappa (minor) v. Shankar Ramachandra 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'.

In another passage, Venkatarama Ayyar, J. again observes, upon this identical line of reasoning, that 'this is to ignore the principle that the doctrine of relation back, based on the notion of continuity of line, can apply and had been applied, only to the estate of the adoptive father and not of collaterals'. The actual doctrine or legal fiction is, of course, that enunciated by Mr. Ameer Ali in delivering the judgment of the Judicial Committee in Pratap Singh's case. 46 Ind App 97 : AIR 1918 PC 192. This well-known passage has been quoted in numerous decisions, and need not be reiterated here. As far as the later case : [1955]1SCR1135 is concerned, this refers to and follows : [1955]1SCR1 and also is authority for the proposition that the widow's power to adopt comes to an end upon the interposition of a grandson or, the son's widow, competent to continue the line of adoption.

26. The argument of the learned Advocate-General, in the form in which it has been pressed as a minimum alternative argument for the appellants, can now be stated in the precise form in which it has been advanced. Upon the theory or legal fiction of dating back, it would no doubt be true that the plaintiff would be entitled to succeed to the estate or interest of Venkatasubramanian, who died on 2-2-1925, as though the plaintiff were his adopted son upon that date. The plaintiff could certainly divest any person who came into the possession of this estate or interest, though prior to his actual adoption. But Venkalakshmi (1st defendant) took the entire estate as the heir of Ramaswami Iyer on his death on 25-5-1944, and did not succeed to Venkatasubramanian in any sense. Hence, the argument is, that the plaintiff could only divest Venkalakshmi (1st defendant), at best for his rights, of the undivided half-share or interest of Venkatasubramanian. If the plaintiff) is to claim the interest or share of Ramaswami Iyer also, to whom he was never adopted, we have tot extend the legal fiction beyond justifiable limits, and to ignore the actual fact that in 1944 Venkalakshmi (1s defendant) took at least the undivided interest of Ramaswami Iyer as Ramaswami Iyer's heir. The limit of the fiction is reached when all the property of the adoptive father, at the death of the father, is secured to the subsequently-adopted son. The inheritance of another undivided interest by a party not claiming under the adoptive father, cannot be touched by the doctrine of legal fiction; nor can the actual fact be ignored that Venkalakshmi (1st defendant) inherited this interest in the properties in 1944 itself, and was in possession at the time of the adoption of the plaintiff.

27. Per contra, the learned counsel for the plaintiff 1st respondent (Sri B. V. Visvanatha Ayyar) argues that the legal fiction must be given its fully extended scope and effect. The plaintiff must be presumed to be in existence, as the adopted heir continuously from 2-2-1925, and on the date of the death of Ramaswami Iyer on 25-5-1944. Had he been then in existence, he would have excluded Venkalakshmi (1st defendant), as preferential heir, even with regard to the undivided interest of Ramaswami Iyer. But this argument appears to us to ignore the true principle as stated repeatedly in : [1955]1SCR1 . The following sentences, in particular, are very significant. 'Thus far, 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'. Again, 'it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death'. Also, with reference to Amarendra's case Venkatarama Ayyar, J. observes :

'This decision might be taken at the most to be an authority for the position that when an adoption is made to A, the adopted son is entitled to recover the estate of A not merely when it has vested in his widow who makes the adoption, but also in any other heir of his. It is no authority for the contention that he is entitled to recover the estate of B. which had vested in his heir prior to his adoption to A.'

But that is precisely the position here. Prior to the adoption of the plaintiff to Venkatasubramanian, the undivided interest of Ramaswami Iyer in the properties had vested in Venkalakshmi (1st defendant), and, if this dictum is to be given force, plaintiff cannot divest the 1st defendant of this interest. Also, after pointing out that the theory of relation back is further subject to the limitation that alienations made prior to the date of adoption are binding on the adopted heir, if they were for purposes binding on the estate, the Supreme Court proceeds to observe : 'The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should not be extended so as to lead to unjust results'. We are unable to see how, if these several observations in the decision are to be given their effect and force, the plaintiff could at best claim anything more than the undivided half-share of his adoptive father Venkatasubramanian. He ' certainly cannot divest Venkalakshmi (1st defendant) of the undivided interest possessed by her husband Ramaswami Iyer in the properties, assuming that the plaintiff, on the theory of relation back, was entitled to the other half as the son of his adoptive father, on the date of death of Ramaswami Iyer on 25-5-1944.

28. The main argument that the learned counsel for the plaintiff has to advance, in an attempt to counter this reasoning is that in : [1955]1SCR1 itself the Supreme Court has pointed out that the estate of the adoptive father 'may be fluctuating as when he is a member of the joint Hindu family, in which the interest of the coparceners is liable to increase by death or decrease by birth', (page 15 of SCR) : (at p. 385 of AIR). The dictum in Anant's case may also be stressed here that 'His (coparcener's) interest is never static, but increases by survivorship as others die, and lessens as others enter the family by birth or adoption'. The argument is that this Is the reason why, if the plaintiff were in existence as the adopted heir of Venkatasubramanian on 25-5-3944, he could claim to exclude Venkalakshmi (1st defendant) altogether, as the preferential heir, and could take the entire estate.

But, obviously, the passage that we have cited above clearly shows that the matter is quite different, where another party like the 1st defendant has already inherited and held an interest, which was not that of the adoptive father; precisely upon the reasoning on which a collateral could not be divested, the 1st defendant surely could not be divested either, with reference to this interest. Had not this devolution by inheritance taken place, the matter might have been upon a different footing. But as the facts are, we do not think that it would either be just, or in accordance with law, to extend the legal fiction of relation back so as to divest Venkalakshmi (1st defendant) of the share or interest of Ramaswami Iyer to which she succeeded as his heir. At the most for the plaintiff, he can only divest her of the undivided half-share or interest of his adoptive father, Venkatasubramanian. Though the learned Advocate-General for the appellants made no concession even to this extent, I am quite unable to see how this much at least could be denied, if the theory of 'relation back' is to be given any effect at all. Alt this is, of course, on the assumption that the properties of late Ramaswami Iyer were coparcenery in character.

29. The appeal will thus have to be partly allowed, (1) by a finding that the adoption of the plaintiff is valid and that of the 5th defendant invalid in law, (2) that, if the properties of late Ramaswami Iyer are coparcenary in charater, plaintiff could divest 1st defendant only in respect of the undivided interest of his adoptive father, as on the date of his death (2-2-1925) and not in respect of the interest of Ramaswami taken by the 1st defendant, as by inheritance, (3) that plaintiff cannot succeed at all with respect to those properties which may be determined to be the self-acquired properties of late Ramaswami, and (4) that the finding as to the nature of the properties (other than items 2 and 3 of the C schedule and F schedule property), has to be set aside and the suit remitted for a determination of these issues. The parties will be at liberty to adduce further evidence, and costs in appeal will abide the result of suit. No refund of Court-fee.

Memorandum of Cross-Objections

30. These cross-objections by the plaintiff-1st respondent relating to item 3 of the 'C' schedule property and the 'F' schedule property can be very briefly dealt with. The evidence of D. W. 1 and D. W. 3 as to the effect that the 1st defendant (D. W. 3) secured these properties from the sale proceeds of her jewels. The learned Subordinate Judge has discussed this evidence in paragraphs 24 and 25 of his judgment Though he did not find the evidence on this aspect to be quite satisfactory, he points out that P. W. 8 and P. W. 10 have conceded that the 1st defendant (D. W. 3) secured Ex, B-8 mortgage in respect of item 3 of 'C' schedule and the 'F' schedule property from the income from the estate of Ramaswami Iyer in her hands. There can be no doubt that this income belonged exclusively to her, and we are unable to find any material to justify the contention that as she did not deal with the 'F' schedule property in such a manner as to show that the properties were not part of the estate of her late husband, it should be concluded that these properties did form part of the estate of late Ramaswami Iyer. In brief, we see no grounds whatever to differ from the conclusion of the Court below upon this aspect of the case. The memorandum of cross-objections totally fails and is dismissed. No costs; the Cross-objector will pay the Court-fee due to Government, C, M. A. No. 282 of 1957.

31. As we have earlier observed, this is an appeal by the 28th and 31st defendants who are alienees in respect of certain items from defendants 1 to 4. They did not contest the suit and were set ex parte, and the decree followed on this basis. They contend that their application under Order IX, Rule 13, Civil Procedure Code, for setting aside the ex parte decree ought to have been allowed, but the learned Subordinate Judge pointed out that their claim was that they did not contest the suit believing in the representations of defendants 1 to 4, which would not be a valid ground for failing to contest the action. We see no reason to take a different view. Further, the main appeal itself has been allowed in part, and it is clear that the plaintiff cannot succeed to the entire estate to the total exclusion of the 1st defendant. The Civil Miscellaneous Appeal is dismissed. No order as to costs.

APPENDIX

(This is given at the end of judgment of Veeraswami, J.)

Veeraswami, J.

32. The main question for decision in this appeal is whether a daughter-in-law can validly adopt to her husband who had predeceased his father. The suit is to recover possession of the plaint schedule properties and for certain other reliefs. One Ramaswami Iyer died on May 25, 1944, leaving his widow Venkalakshmi, who is the 1st defendant in the suit, a widowed daughter-in-law, Janaki, and considerable properties. Venkatasubramanian, the only son of Ramaswami Iyer and husband of Janaki, had predeceased his father on February 2, 1925. Ramaswami Iyer also left his married daughter, Meenakshi, the 2nd defendant, whose husband, Narayana Srouthigal, is the 3rd dependant. On her husbands's death. Venkalakshmi inherited his properties as his heir, and has since been in possession thereof. On September 29, 1952, Janaki adopted the plaintiff to her husband. On May 7, 1953, Venkalakshmi ftopted the 5th defendant who is the younger son of her daughter, the 2nd defendant. Soon after the death of her husband, Janki left his house and has since been living with her parents. In 1943 she sued her father-in-law for maintenance and eventually obtained from him a deed of maintenance through certain mediators. As the adopted son of Venkatasubramanian, the plaintiff, a minor by his next friend and adoptive mother, instituted the suit, out of which this appeal arises, to recover the plaint properties from Venkalakshmi. He denied the factum and validity of the 5th defendant's adoption and has also impleaded certain alienees from Venkalakshmi as defendants to the suit impeaching the alienations.

33. The suit was chiefly resisted by Venkalakshmi and her adopted son, by denying the factum and validity of the plaintiff's adoption and asserting the factum and validity of the 5th defendant's adoption. As regards the character of the properties left by Ramaswami Iyer, while the plaintiff pleaded that they were ancestral properties, defendants 1 and 5 claimed that they were the self-acquisitions of Ramaswami Iyer.

34. The trial Court upheld the factum and validity of the plaintiff's adoption, but found that the 5th defendant's adoption was not true, and even if true, it was not valid, on the ground that Venkalakshmi had no power to adopt owing to the interposition of her son's widow who was competent to continue the line of adoption. It also found that the properties, left by Ramaswami Iyer, were ancestral in his hands. On these findings, the trial Court decreed the suit as prayed for, except in regard to items 2 and 3 of C schedule and F schedule property, which were found to belong to the 1st defendant absolutely. In respect of item 1 of C schedule, the trial Court directed that it should be divided into two equal halves, and the plaintiff be allotted one share. Defendants 1 to 5, the 4th defendant being the eldest son of the 2nd defendant, have preferred this appeal, in so far as the decree is against defendants 1 and 5. The plaintiff has filed a memorandum of cross-objections against the decree in respect of item 3 of C schedule and the F schedule property.

35. Before us, the truth of the plaintiff's adoption as found by the trial Court, is no longer disputed. But the attack by the appellants is confined to the validity of his adoption on three grounds: (1) that it has no religious or spiritual foundation, (2) that the requisite consent of the sapindas was not taken, and (3) that Janaki's conduct in! adopting the plaintiff was both capricious and improper.

36. It is convenient to dispose of first the 2nd and 3rd grounds. The 2nd ground is based upon the contention that Ex. A-18, the genealogy filed by the plaintiff, was not proved or established to be correct, and that, therefore, the consent said to have been taken by Janaki from the persons shown as nearest sapindas of Venkatasubramanian in the genealogy, was invalid. According to this genealogy, P. Ws. 2 and 6, their brother Subrahmanya Iyer, and paternal uncle, K. R. Narasimha Iyer, are the nearest sapindas of Venkatasubramanian. The trial Judge has found that Janaki sought and obtained the consent of each one of them for adopting the plaintiff, and this finding is well supported by the evidence on record. Indeed, the finding has not been challenged before us by the appellants. Nor have they disputed that, if it is established that the nearest sapindas are those shown in the genealogy, their consent to the plaintiffs adoption would be valid and sufficient. Ex. A 18 was produced by P. W. 2, one Narasimha Iyer. He stated in his evidence that he and his brothers were the nearest sapindas of Ramaswami Iyer and that Ex. A-18 was prepared by his father, S. Chandrasekhara Iyer, in about the year 1939 or 1940.

P. W. 6 Ramaswami Iyer, the brother, of P. W. 2, also asserted in his evidence that Ex. A-18 was in his father's handwriting, and that it was prepared 10 or 15 years earlier. He had stated in his cross-examination that it was prepared for the purpose of observing pollusion and performing sradhas. These two witnesses spoke to the correctness of the genealogy and said that one Papaya was the common ancestor who had two sons, Rama Iyer and Chandrasekhara Iyer, that Ramaswami Iyer was the grandson of Rama Iyer, and that himself and his brothers, P. W. 6 and. K. V. Subramania Iyer, were the great grandsons of Chandrasekhara Iyer, the son of Papaya in the male line. The trial Court accepted their evidence, and found that Ex. A-18 was proved and that the pedigree given therein was correct. But the appellants challenged this finding by contending that the evidence of P. Ws. 2 and 6 was unreliable, mainly because in cross-examination P. W. 1 would say that Ex. A-18 was mostly written by his father, and added later on that the whole of it was written by his father, but he did not know when it as written.

The appellants also pointed out that, in the cross-examination of P. W. 2. he admitted that he did not observe when Ex. A-18 was being prepared and that he did not know the immediate cause for its preparation. P. W. 6 also admitted in cross-examination that he too was not present at the time when Ex. A-18 was being prepared and that he actually did not know who wrote it. Ex. A-18 has not been signed by Chandrasekhara Ayer. the father of the two witnesses. Notwithstanding these infirmities, the trial Court was satisfied that the pedigree, as shown in Ex. A-18 and deposed to by P. Ws. 2 and 6, was established to be the correct one. It is no doubt true that the infirmities, pointed out by the appellants in the evidence of those two witnesses, are present. But there appears to be no good ground to differ from the appreciation by the trial Court of their evidence, and hold that they affected the credibility of their evidence so that the acceptance of their evidence by the trial Court was wrong.

Beyond denying the genuineness of Ex. A-18V and the pedigree as set out therein and spoken to by P. Ws. 2 and 6, the evidence on the side of the defence is wholly inadequate and unconvincing to find that the nearest sapindas of Ramaswami Iyer or Venkatasubramanian were different persons. According to the 3rd defendant in his evidence, the nearest sapindas of Ramaswami Iyer were Anantakrishna Iyer, K. M. Visvanatha Iyer, K. A. Narasimhan and K. A. Meenakshisundaram, and their consent had been taken for the adoption of the 5th defendant by the 1st defendant. When he was asked in cross-examination how he knew that they were his nearest sapindas, his answer was that they were invited by Ramaswami Iyer on the night prior to his death, that he requested them to arrange an adoption and told the witness that they were his nearest sapindas, and that, apart from what he was told by Ramaswami Iyer, he did not know himself how they were his nearest sapindas.

In her evidence the 1st defendant stated that Kuppuswami alias Anantakrishnan, Visvanathany Narasimha Iyer and his brother, Meenakshisundaram, were her husband's nearest agnates, and that except these four, Ramaswami Iyer had no other agnates. She too had no personal knowledge about the fact. But her source of information was that two days prior to his death, Ramaswami Iyer had told her casually that Narasimha Iyer and Meenakshisundaram were his agnates. It is obvious that the trial Court naturally did not place any reliance on D. Ws. 1 and 3 on this aspect of the case. A look at the original of Ex. A-18 shows that it is an old document which was not likely to have been fabricated for the purpose of this case. It is possible that it was prepared, as stated by P. Ws. 2 and 6, by their father and left with P. W. 2. The finding of the trial Court that Ex. A-18 has been properly proved and the correctness of pedigree therein was established cannot, therefore, be said to be erroneous. The second ground urged to invalidate the plaintiff's adoption has, therefore, no substance.

37. In order to appreciate the third ground of attack upon the validity of the plaintiff's adoption, it is necessary to notice a few more facts. Long after the death of her husband, Janaki sued her father-in-law, Ramaswami Iyer, in O. S. No. 191 of 1943 in the Court of the District Munsif of Erode for maintenance which eventually led to the execution by Ramaswami Iyer of a deed of maintenance dated 15th November 1943, in her favour which is Ex. B-6. This deed was supposed to have been executed in accordance with the decision of certain mediators and it proceeded upon the basis that the properties which Ramaswami Iyer then owned, were his self-acquisitions. After providing for the maintenance of Janaki at a certain rate, the deed concludes by stating that thereafter she should have no claim or interest against Ramaswami Iyer. In the next year, Ramaswami Iyer died. Janaki continued to draw her maintenance on the strength of Ex. B-6, while she was living all the time since February 1925 when her husband died, in her parents' house.

The contention on behalf of the appellants is that Janaki never thought of adopting a boy to her husband ever since his death and until sometime before 29th September 1952, that, if Janaki was bona fide, she could have adopted during the lifetime of her father-in-law with his consent, but that she knew that he would not give his consent, and without it, she could not adopt, that, as a matter of fact, as appears from the deed of maintenance, she had admitted that the properties were the self-acquisitions of Ramaswami Iyer, that, except for the maintenance provided for her in the deed, she would have no further claim or interest against Ramaswami Iyer, and that, in the light of these facts and circumstances, Janaki's adoption of the plaintiff to her husband was not inspired by any desire on her part to discharge a religious duty but was a capricious act with an eye upon the properties of Ramaswami Iyer. The appellants urged that an adoption by a widow to be valid should be for the proper and bona fide performance of a religious duty and made by her neither capriciously nor from corrupt motive.

On this contention, it has first to be observed that a widow's motive, once she obtains the requisite consent of her husband's nearest sapindas for her adoption, is not relevant to a consideration of the validity of the adoption. In 4 Ind App 1 (PC) the Privy Council observed:

'It would be very dangerous to introduce into the consideration of these cases of adoption nice questions as to the particular motives operating on the mind of the widow.'

Again in , the Judicial Committee expressed its view thus:

'Their Lordships doubt if where the consent of a sapinda has been obtained, the motive of the adopting widow is relevant.'

In yet another case , the approach of the Judicial Committee was:

'There is no evidence to prove any improper motive, and if the adoption causes harm to the plaintiff, it nevertheless confers spiritual benefit upon the husband.'

Apart front the position that the motive of the: adopting widow does not bear upon the validity of an adoption made by her with the requisite authority or consent from the adoptive father's nearest sapindas, the facts and circumstances relied on by the appellants in this case do not also establish that the act of Janaki in adopting the plaintiff was a capricious one or that the consent given to her by the nearest sapindas for her act was, in any way, improper- It might be that, during the life-time of Ramaswami Iyer, she could never have hoped to obtain his consent for her adoption. It might also be true that she had waited so long since her husband's death in 1925 and made the adoption only in 1952. But the law enjoins. no time limit upon the widow to make an adoption. Neither the delay nor the certain possibility of Ramaswami Iyer refusing his consent, would in itself or, the two facts taken together, be sufficient to hold that the plaintiff's adoption by Janaki was a capricious or improper act on her part. Support for the third ground urged by the appellants was. also sought to be derived from another contention that, in view of the fact that her husband predeceased his father, there was no religious duty cast on Janaki to adopt a son to her husband. But this aspect of the case will be considered while dealing with the first ground of attack of the plaintiff's adoption, and, in view of the conclusion reached by me on that aspect, it hardly lends any support to the third ground. There is thus no merit or substance in the third ground of attack either.

38. The first ground, as put forward by the learned Advocate-General appearing for the appellants, is this. An adoption by a Hindu widow is made with the twin objects of continuing the line of her husband and enabling him, through his adopted son, to discharge the religious duty which he owed to his ancestors. The basis of an adoption is, therefore, to be found in the religious. duty discharged and spiritual benefits secured by the meritorious act of adoption to the adoptive father's ancestors. Judged by this test, Janaki had no power to adopt a son to her husband, because her husband having predeceased his father, the duty to continue the line and propitiate the souls of his ancestors was still on the father and never handed by him to his son. The argument so presented requires careful consideration,

39. No direct textual authority has been brought to our notice in support of the argument. Texts, to which our attention has been drawn, relate to the religious efficacy of sonship in general and do not provide in so many words any religious foundation as a test of the validity of an adoption. In fact, though the religious or spiritual aspect of an adoption was undoubtedly recognised, the decided cases before linked the validity of an adoption with its effect upon property and proceeded to decide the question with reference to vesting or divesting of the estate concerned. There is a long line of cases decided both by the Courts in India as well as by the Judicial Committee since, 10 Moo Ind App 279 (PC), which applied that test. But it appears hardly necessary to refer to them, in view of the decision in Amarendra Mansingh v. Sanatan Singh . In the last mentioned case, the Privy Council made a departure from the earlier approach to the question of validity of an adoption, and held:

'In their Lordships' opinion, it is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites. And it may well be that if this duty has been passed to a new generation, capable itself of the continuance, the father's duty has been performed and the means provided by him for its fulfilment spent: the 'debt' he owed is discharged, and it is upon the new generation that the duty is now cast and the burden of the 'debt' is now laid.......

'Having regard to this well-established doctrineas to the religious efficacy of sonship, their Lordships feel that great caution should be observed inshutting the door upon any authorized adoption bythe widow of a sonless man.'

The Privy Council in this case laid down that the validity of an adoption should be determined by spiritual rather than temporal consideration or on a distinction founded on the nature of property. What happened in that case was this. The estate in that case was an impartible zamindari, and one Raja Brajendra was its owner. He died in 1903, and his son Raja Bibhudendra, succeeded to the zamindari as heir to his father. Bibhudendra died in 1923 unmarried. A week later, his mother, Rani Indumati adopted Amarendra. Banamalai, a sapinda of Bibhudendra several degrees removed, brought the suit, disputing the validity of the adoption and claiming that, according to the custom which excluded females from succession, he had succeeded to the zamindari. Banamalai contended that Rani Indumati's power of adoption was extinguished on Bibhudendra's death, inasmuch as he. by then, attained the full age and full legal capacity to continue his line, and that the adoption could not divest the estate which had vested eight days previously by inheritance in Banamalai as The nearest collateral heir of the last male holder. The suit was decreed, and Amarendra's appeal to the High Court was unsuccessful.

The Privy Council reversed the decision, upholding the adoption and holding that Amarendra was, as the adopted son of Bibhudendra, entitled to recover the zamindary from Banamalai. The Privy Council, in arriving at those conclusions, referred to the peculiar religious significance attached to a son who is essential to the spiritual welfare of the souls of his immediate ancestors by performing the necessary ceremonies, and to the fact that, for that purpose, an adopted son is clothed with all the attributes of an aurasa son and is from the date of his adoption regarded as having been born in his adoptive family. This doctrine, the Privy Council said, is implicit in the 9th Chapter of Manu's Code.

'The father by the birth of a son dischargeshis debt to his progenitors; through him he attainsimmortality; by a son a man obtains victory overall people; by a son's son he enjoys immortality;and afterwards by the son of that grandson hereaches the solar abode; a son is called 'putra' because he delivers his father from 'puth'.

Reference was also made by the Privy Council tothe following lines from the Dharma Sutra of Baudhayana:

'I take thee for the fulfilment of my religiousduties. I take thee to continue the line of myancestors'

Having regard to the said doctrine as providing the foundation for an adoption, the Privy Council observed.

'that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it another coparcener of the joint family, or, an outsider claiming by reverter, or, their Lordships would add, by inheritance, cannot be in itself the test of the continuance of extinction of the power of adoption.'

The Privy Council held the test to be:

'It being clear upon the decisions above referred to that the interposition of a grandson, or the son's widow, brings the mother's power of adoption to an end, but that the mere birth of a son does not do so, and that this is not based upon a question of vesting or divesting of property, their Lordships think that the true reason must be that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the son's widow, the mother's power is gone. But if the son dies himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the son's lifetime, will revive.'

In : [1955]1SCR1135 , their Lordships of the Supreme Court, affirming the principles laid down in , observed that in that case there was a departure of at least a re-orientation of the old doctrine and stress was laid on the spiritual rather than temporal power of adoption linking it up with vesting and divesting of the estate. Their Lordships of the Supreme Court summed up the propositions laid down in Amarendra's case in these terms: (1) that the interposition of a grandson or the son's widow competent to continue the line by adoption brings the mother's power of adoption to an end; (2) that the power to adopt does not depend upon any question of vesting or divesting of property; and (3) that a mother's authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence. In Gurunath's case, : [1955]1SCR1135 , the facts were these: Gurunath, the plaintiff, claimed that he was adopted in 1943 by Gangabai, the widow of Krishtarao who died in 1890, leaving him surviving two widows, Radhabai and Gangabai, and a son, Dattatraya. Dattatraya died in 1913, leaving him surviving a widow, Sundarabai, and a son. Jagannath. Sundarabai died after Dattatraya, and Jagannath died in 1914. Gangabai who survived both her son and grandson, adopted the plaintiff 30 years after the death of Jagannath. The Supreme Court held that Gangabai's power to adopt came to an end at the time when her son died leaving a son and a widow to continue the family line.

40. In the present case, the trial Court considered that the principle of Gurunath's case, : [1955]1SCR1135 was applicable to it, and, upon that basis, it upheld the validity of the plaintiff's adoption made by Janaki. The learned Advocate-General has contended that the trial Court was in error in doing so, as, in view of the fact that Venkatasubrahmanyan predeceased his father and Ramaswami Iyer was alive till 1944, the ratio of Gurunath's case, : [1955]1SCR1135 would not help the plaintiff. The argument is that, although there was the interposition of a son's widow, the father being alive, the duty to continue the line was still with him, and never passed on to his son, and, after his death, to his widow. The duty a son owes is to his ancestors who had departed from this world. No question, therefore, could arise of Venkatasubrahmanyan being obliged, during the lifetime of his father, to discharge any such duty and the position was not different after Venkatasubrahmanyan's death leaving his father. It should follow, therefore, that Janaki was under no religious duty to provide a son to her husband by adoption, and consequently she had no power to adopt the plaintiff. So ran the arguments of the learned Advocate-General, and at first sight it appeared attractive. But on a deeper consideration, the argument, in so far as it denied the power of Janaki to adopt a son to her husband should be rejected.

41. It may be, as contended by the learned Advocate-General that Gurunath's case, : [1955]1SCR1135 does not conclude the question of the 1st defendant's power to adopt the 5th defendant, for, in this case, and unlike in the case of Gurunath, : [1955]1SCR1135 the father was still alive, when his son died leaving his widow, and the logic of the father having handed to his son the responsibility of continuing the line for spiritual purpose is not applicable. But there is no direct text or decided case brought to our notice in support of the contention that Janaki could not yalidly adopt a son to her husband with the requisite consent of his nearest sapindas. Venkatasubrahmanyan could, in his lifetime, have adopted a son to himself, and the validity of such an adoption could not be challenged on the ground that his father was alive. Equally, that ground would not be available to invalidate an authority given by Venkatasubrahmanyan, if any, to his widow to adopt a son to him. It is difficult to see why in the absence of such authority from her husband she could not validly adopt a son to her husband with the consent of his nearest sapindas. It was not disputed by the learned Advocate-General that Janaki could have validly adopted with the consent of her father-in-law. In the Ramnad case, 12 Moo Ind App 397 (PC), the Privy Council referred to the textual authority for such an adoption and said:

'but the Dattaca Mimamsa of that author (Vaidya Narainsamy) clearly and explicitly declares the right of the widow to adopt with the authority of her father-in-law.'

But on what ground or precise reasoning can it be said that a widow, in the absence of her father-in-law by death, could not adopt a son to her husband with the consent of his nearest sapindas? Such a contingency was comprehended in the Ramnad case when the Privy Council observed in that case:

'And though the Father of the Husband, if alive, might, as the head of the family and the natural Guardian of the widow, be competent by his sole assent to authorise an adoption by her, yet, if there be no Father, the consent of all the Brothers, who, in default of adoption, would take the Husband's share, would probably be required,since it would be unjust to allow the widow to defeat their interest by introducing a new coparcener against their will.'

In making this observation, the Privy Council as seen from its further observations, was not unaware of the religious foundation for an adoption. It is true enough that when a son's widow makes an adoption to him during the lifetime of his father, there could be no question of the deceased son or his adopted son offering spiritual benefit to the father or grandfather who is alive. But what about the soul of the husband who has predeceased his father and who will propitiate it? It is certainly not the father whose religious duty is to his departed ancestors, and not to his son. Pindas or oblations offered by the father and ceremonies performed by him do not seem to enure to the benefit of the soul of his departed son. From this standpoint, therefore, at least, an adoption by the son's widow can be supported on a religious or spiritual basis, in the sense that a son by such an adoption could secure spiritual benefit to the adoptive father who has departed. On this ground, it must be held that Janaki was competent to adopt the plaintiff and that she validly adopted.

42. On the above aspect of the case, our attention has been drawn to three cases, one of them decided by the Lahore High Court and the others by the Bombay High Court, which, on facts appear to be nearest to the instant case. In each of these cases, the validity of an adoption made by a widow to her husband, who had predeceased his father, was in question. In ILR 20 Bom 250, Charles Sargent C. J. and Candy, J. held against the validity of such an adoption. In that case, one D died in 1852 childless, leaving three widows and a daughter-in-law, B, the widow of a predeceased son C. While the last survivor of the three widows of D was in possession, B adopted the plaintiff in 1871. The learned Judges pointed out that, on his death, his estate had vested in his widows with remainder to his collateral heirs and even if the last surviving widow of D had assented to the subsequent adoption of the plaintiff by B, his claim would not stand against the rights of D's collaterals who would succeed on the death of the last surviving widow, and that from the moment that D died and his estate vested in his widows, the right of his daughter-in-law to adopt for the purposes of representation was at an end. The invalidity of the adoption was founded by the Court not upon any religious or spiritual ground as being the foundation for an adoption, but upon the ground that no adoption by B could possibly divest the surviving widow of D of the property which had come to her by inheritance from the last owner and her husband.

In : AIR1937Bom279 , a contrary view on the validity of an adoption on similar facts was expressed by a Full Bench of the Bombay High Court. There, upon the termination of the coparcenery on the death of the last surviving coparcener, the widow of his predeceased son made an adoption. It was held that the adoption was valid for spiritual purpose but would not have the effect of divesting properties vested on the date of adoption in the heir of the last male holder, namely, the paternal grandfather 'of the adopted boy. It was, of course, assumed that the coparcenery was extinct upon the death of the surviving coparcener, a view which is no longer tenable, in the light of the subsequent decisions. But the spiritual basis, as supporting the validity of an adoption made by the widow of a predeceased son, was not elaborately discussed in that case. It must be taken that the Full Bench overruled the earlier view of the Bombay High Court.

In another case, : AIR1939Bom81 , Wadia and Wassoodew, JJ. have referred to the earlier Full Bench decision in : AIR1937Bom279 , and held that, on the question of the validity of an adoption by the widow of a predeceased son, they were bound by the decision of the Full Bench. In that view, there was no discussion of the point in AIR 1939 Bom 81. Thus, the two latter Bombay cases support the validity of the plaintiff's adoption in this case. In AIR 1938 Lah 539, Addison and Din Mohammad, JJ. expressed the view that such an adoption by the widow of a predeceased son was invalid. The reason for the decision is stated thus :

'Just as in 10 Moo Ind App 279 (PC) : ILR 8 Cal 302 (PC) and ILR 10 Mad 205 which have not been dissented from in ILR 12 Pat 642 : AIR 1933 PC 55, the power of the father's widow to adopt was held to have terminated on the vesting of the estate in the son's widow, in the present case the power of the son's widow, it any, to adopt at the time when the property vested in the father's widow can safely be said to have come to an end. We accordingly hold that the adoption of the defendant was in the eye of the Hindu law invalid'.

It may be observed that the decision so arrived at was not with reference to the spiritual or religious foundation of an adoption but from the standpoint of property which can no longer be the proper basis for deciding the validity of an adoption.

43. The result of the above discussion is that, in my opinion, the validity of the plaintiff's adoption, judged from, the standpoint of religious or spiritual efficacy, is valid, and the finding of the trial Court in this regard must be upheld though for different reasons.

44. It is not necessary to turn to the question of factum and validity of the adoption of the 5th defendant. As already stated, the trial Court has held against the 5th defendant on both the aspects. As regards the truth of the adoption, it appears to me that the trial Court is not right in its finding. The evidence on the Question let in on behalf of the 5th defendant is sufficient and reliable, notwithstanding the fact that it may be interested. The 1st and 3rd defendants have sworn to the fact that the 1st defendant adopted the 5th defendant on May 7, 1953. It is unlikely, in the context of the plaintiff's adoption by Janaki, that the 1st and 3rd defendants would have taken the risk of not actually performing the ceremonies of adoption, but going through a farce of a ceremony or holding no ceremony and exposing themselves to a charge that factually there was no adoption of the 5th defendant at all. Apart from the evidence of defendants 1 and 3, there is also the other evidence in proof of the factum of the 5th defendant's adoption which cannot, on any justifiable ground, be rejected as unreliable so far as the truth of the adoption is concerned.

45. Put on the question of the validity of the 5th defendant's adoption, there is no doubtthat the trial Court is right. Assuming that the1st defendant had power to adopt the 5th defendant, it could validly be exercised only with theconsent of the nearest sapindas of her husband,Ramaswami Iyer. It was the case of defendants1 and 3 that the former did get the consent of thenearest sapindas of Ramaswami Iyer. But I havealready found that the nearest sapindas of Ramaswami Iyer were not those mentioned by defendants 1 and 3 in their evidence but those foundin the pedigree in Ex. A-18. It is not the caseof the appellants that the 1st defendant had theconsent of any of the nearest sapindas of Ramaswami Iyer in accordance with the pedigree inEx. A-18. But the learned Advocate-General argued that, inasmuch as the 5th defendantwas brought up by Ramaswami Iyer himself,who, according to the evidence in defence, performed anna prasan and chowlam, the 1st defendantmust be held to have her husband's implied authority to adopt the 5th defendant. There is no substance in this contention. In the first place, no such implied authority from Ramaswami Iyer has been pleaded in the written statement or proved by the evidence. No such case appears even to have been argued in the trial Court. The authority of the husband is sought to be implied only during the argument in this Court from the mere statement of the 1st defendant in her evidence about her husband's performance of anna prasan and chowlam for the 5th defendant. I have no hesitation in holding that the 1st defendant did not have any implied authority from her husband to adopt the 5th defendant. It follows, therefore, that, although the adoption of the 5th defendant by the 1st defendant was true, the adoption must be held to be invalid for want of a proper authority or consent, either from the 1st defendant's husband or his nearest sapindas.

46. It then the plaintiff's adoption is valid, as I hold it is, the further question is whether he is entitled to recover the suit properties divesting the 1st defendant. This question has to be dealt with from the standpoint of what would be the position if the properties were separate proper-lies of Ramaswami Iyer or they were joint family properties in his hands. This is necessary because, although the trial Court has found that they were joint family properties in his hands, this finding is contested by the appellants, and for the reasons given in a later part of this judgment, that finding has to be set aside and the matter remitted to the trial Court for fresh finding on the character of the properties, and disposed of. On the question of divesting, the main contention of the learned Advocate-General is that the right of an adopted son with reference to the doctrine of relation back is only quoad the estate of the adoptiva father.

The argument is elaborated thus. Assume that the properties were ancestral. On the death of Venkatasubrahmanyan, his father, Ramaswami Iyer, became the last surviving male in his line and sole coparcener. As such, he was the last full owner. When Venkatasubrahmanyan was born, on the basis the' properties were ancestral, he became a co-parcener, but Ramaswami Iyer continued to be the owner subject to co-extensive interest of his son liable to partition if the right was exercised as to half. When Venkatasubrahmanyan died, Ramaswami Iyer inherited nothing from him. The claim of Venkatasubrahmanyan which had arisen had terminated. So, the properties before the death of Ramaswami Iyer entirely belonged to him as his absolute estate, and when he died, his estate passed on, by inheritance, to his widow, the 1st defendant, as his heir. On this premise, it is contended that the plaintiff, by reason of his adoption to Venkatasubrahmanyan, is not entitled to divest the estate of Ramaswami Iyer, which the 1st defendant has inherited as his heir, and not from Venkatasubrahmanyan. In support of this contention, reliance has been placed upon the following observations of their Lordships of the Supreme Court in : [1955]1SCR1 :

'Thus far, 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 ... ... ... ... ... ... ... ... ... 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 (Anant Bhikappa Patil v. Shankar Ramachandra Patil leads to results which are highly inconvenient...............The claim of the appellant to divest a vested estate on a legal fiction, and legal fictions should not be extended so as to lead to unjust results'.

These observations have been made by the Supreme Court while deciding in that case that the doctrine of relation back does not extend to properties which are inherited from a collateral. Before dealing with that case, it may be convenient to notice certain earlier decisions and general principles that govern the right of an adopted son, on the doctrine of relation back, to divest an estate which had vested in some one other than the adopting widow. It is well established that an adopted son acquires all the rights of an aurasa son and those rights related back to the date of the death of the adoptive father. But on the limits of the rights based on the doctrine of relation back, the views expressed have not always been uniform, whether they related back to the separate properties of the last holder or the joint family properties in the hands of the last surviving coparcener. One line of cases, like Raghunadha v. Brozo Kishore, 3 Ind App 154, allowed an adoption to divest coparceners, and another line of cases, like 10 Moo Ind App 279, refused to permit an adopted son to divest persons other than the adopting widow, who had taken by inheritance.

In ILR 14 Bom 463 Telang, J. on behalf of a Division Bench, held that, on the death of the sole surviving coparcener, an adoption to a predeceased copardener was ineffective to take the property which had belonged to the joint family out of the hands of the former's heirs and vest in the adopted son. This decision was based on the view that, on the death of the last surviving coparcener the coparcenery was at an end and that subsequent adoption could not divest the estate which had passed from the last surviving coparcener to his heir by inheritance so as to revive the coparcenery. But this view is no longer tenable after the decision of the Judicial Committee in . In that case, it has been held that, so long as there is a widow in existence of a deceased coparcener, the coparcenery does not come to an end with the death of the last surviving coparcener. The Privy Council quoted with approval the following view expressed by Nagpur High Court in Bajirao v. Ramkrishna, :

'We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still potential mother if that mother in the way of nature or in the way of law brings in a new male member.'

In support of this view, the Privy Council quoted also the observations of Ameer AH J. who delivered the judgment on behalf of the Board in 46 Ind App 97 : AIR 1918 PC 192:

'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: Whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as West and Buhler point out in their learned treatise on Hindu Law (3rd Edn. p. 996, note (a) ) 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.'

It was upon that view the Privy Council held in , that Anant, the adopted son of Bhikappa Patil, was entitled to recover the joint family estate from Shankar, who was a collateral of Keshav, and in whom the joint family estate had vested by inheritance as heir to Keshav, the last surviving coparcener. The reason for the decision is contained in the following passage in the judgment in that case:

'If then, the appellant's adoption was valid, can it be held that it does not take effect on the property which had belonged to the joint family because there was no coparcenery in existence at the date of the adoption? On this point, their Lordships, differing from the majority decision in Balu Sakharam's case : AIR1937Bom279 , hold that the adoption being valid cannot be refused effect. That the property had vested in the meantime in the heir of Keshav is not of itself a reason on the principles laid down in Amarendra's case , why it should not divest and pass to the appellant. Keshav's right to deal with the family property as his own would not be impaired by the mere possibility of an adoption (cf. Veeranna v. Sayamma, ILR 52 Mad 398 : AIR 1929 Mad 296. But in his life-time adoption by the widow of a collateral coparcener would have divested him of part of his interest, and the same right to adopt subsisting after his death must, in their Lordships' view, have qualified the interest which would pass by inheritance from him. As Appovier's case (Appovier v. Rama Subba Aiyar, 11 Moo Ind App 75 made clear the fraction which is at any time employed to describe the quantum of the interest of a male member of the family does not represent his rights while the family is joint, but the share which he would take if a partition were then to be made. His interest is never static but increases by survivorship as others die and lessens as others enter the family by birth or adoption. What principles require that the death of the last surviving coparcener should prevent any further fluctuation of the interest to which he was entitled notwithstanding that a new male member has since then entered the family by adoption? There is, of course, some convenience in bringing fluctuations to an end, but other principles it is difficult to find..................

In the present case the adopting widow was the mother of the last surviving coparcener. Her power to adopt could not have been exercised in his lifetime, and if exercised after his death cannot, as their Lordships think, be given any less effect than would have attached to an adoption made after his death by the widow of a pre-deceased collateral. It must vest the family property in the adopted son on the same principle, displacing any title based merely on inheritance from the last surviving coparcener.'

The Privy Council went further and held that Anant was also entitled to recover even the property which Keshav had inherited from his father's divided paternal uncle, Narain, as heir and which on the death of Keshav was inherited by Shankar, a distant collateral and the nearest heir of his. The ground for this is stated thus:

'Keshav's separate watan property devolves not on his mother, who would be his heir at the general law but on the nearest male in the line of heirs; and if the appellant's adoption as son to Bhikappa puts him in that position, his right to succeed cannot be limited to such watan property as Keshav derived from Bhikappa. On this ground the appellant's suit succeeds as regards the two parcels of land which Keshav inherited from Narayan.'

47. On facts, Amarendra's case , was more or less similar to , except for this difference that in the latter case, the adopted son, Anant, claimed also to recover the property which Keshav had inherited from Narayan, and which on Keshav's death had vested in a distant collateral, Shankar, as his heir. In : [1955]1SCR1 , the facts were these. Siddopant and Krishnarao, both sons of one Ramachandra, were members of a joint Hindu family. Krishnarao died in 1897 leaving his widow Rukmini. Siddopant died in 1899 leaving his son Gundo. Gundo died in 1901 leaving his widow Laxmibai who adopted Devji shortly after her husband's death. Devji was married to Akkubai. He died in 1935 leaving three sons and his widow. In 1944, Rukmini adopted Shrinivas. Siddopant and Krishnarao represented one branch of the family, and Swamirao represented another branch of the family. Swamirao died in 1903 issueless and his widow also died soon after. His properties devolved on Devji as his nearest agnate.

Shrinivas, by reason of his adoption to Krishnarao, claimed to recover not only a half share in the properties which belonged to the branch of Siddopant and Krishnarao and to which Devji became entitled as the sole surviving coparcener after the death of Gundo, but also to those properties of Swamirao which had devolved on Devji as his nearest heir. The plaintiffs claim to Swamirao's properties was based on the ground that, by reason of adoption, he became a preferential heir entitled to divest Devji of those properties, and in the alternative, on the ground that those properties had become blended with the admitted joint family properties belonging to the branch of Siddopant and Krishnarao. Shrinivas, the plaintiff, got a decree for partition of the watan properties belonging to the joint family of Siddopant and Krishnarao, but as regards the properties of Swamirao which devolved on Devji, the suit was dismissed. Against that decision, Shrinivas preferred an appeal to the Supreme Court.

Upon the principle of , applying the doctrine of relation back not only to the joint estate but also properties which had devolved by inheritance from a collateral, Shrinivas urged that he was entitled to succeed in the appeal. But the Supreme Court rejected the contention and dismissed the appeal, holding that the doctrine of relation back, based on the notion of continuity of line, could apply and had been applied only to the estate of the adoptive father, and not of collaterals, and that the decision in , , in so far as it related to the properties inherited from collaterals, was not sound. It was pointed out in this decision that the ground on which an adopted son was held entitled to take in defeasance of the rights acquired prior to his adoption was that in the eye of law his adoption related 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, and that the doctrine of relation back rested on the principle that whenever an adoption was made there was no hiatus in the continuity of the line.

It is on this basis that an adopted son is held entitled as preferential heir to divest the adopting widow of the estate which he has inherited as heir, either to her husband or deceased son. The Supreme Court also considered application of this principle when the adoption was made to a deceased coparcener, and observed that, if, in a joint family consisting of two brothers, A and B, A died leaving his widow, W, and later B, the surviving coparcener, also died leaving his widow but no son and thereafter W adopted X, the adoption would confer upon X the rights to the estate in the hands of B's widow. In such a case, the validity of the adoption would be upheld in view of the pronouncements of the Judicial Committee in 46 Ind App 97 : AIR 1918 PC 192 and Amarendra's case . That the adopted son X would be entitled to divest B's widow, would follow upon the principle of the decision in , in which, as already noticed, the Privy Council held that the coparcenery must be held to subsist so long as there was in existence a widow of a coparcener capable of bringing a son into existence by an adoption, and if she made an adoption, the rights of the adopted son could be the same as if he had been in existence at the time when his adoptive father died, and that his title as coparcener would prevail as against the title of any person claiming as the heir of the last coparcener.

The Supreme Court, after pointing out with reference to the decision in Anant's case. , that in substance the estate in the hands of such heir was treated as impressed with the character of coparcenery property so long as there was a widow alive who could make an adoption, observed further in : [1955]1SCR1

'Thus far, 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 as on the date of his death.'

The Supreme Court then proceeded to consider whether this doctrine of relation back could be applied when the claim made by the adopted son related not to the estate of his adoptive father but of the collateral, and held that the reason behind the rule that there should be continuity in line did not warrant its extension to collaterals, that with reference to the properties inherited from collaterals, the governing principle was that inheritance could never be in abeyance and that once it devolved on a person who was the nearest heir under the law, it was thereafter not liable to be divested. The following propositions may, therefore, be said to have been established by the decision of the Supreme Court in : [1955]1SCR1 (1) The doctrine of relation back applies only when the claim made by the adopted son relates to the estate of his adoptive father. (2) The doctrine is not applicable to the estate of collaterals. (3) The estate of collaterals is governed by the principles that inheritance can never be in abeyance and once it devolves on a person who is the nearest heir under the law, it is thereafter not liable to be divested.

Now, in this case, no question of a claim to the estate of a collateral arises. The plaintiffs claim is governed by the 1st proposition mentionedabove, and has to be decided with reference to it.That proposition does not support the argumenton behalf of the appellants that on the death ofthe sole coparcener, the coparcenery came to anend and the estate devolved as his absolute estateupon his widow, the 1st defendant, by inheritance,so that the plaintiff, by reason of his adoption, couldmake no claim to it. This is because as held in and explained by the Supreme Court in : [1955]1SCR1 , the estate of Ramaswami Iyer, thelast surviving coparcener, which devolved upon hiswidow by inheritance, would continue in her handsunchanged in its character as coparcenery property,so long as she or Janaki lived. As observed by SirGeorge Rankin in Anant's case :

'But in his lifetime adoption by the widow of a collateral coparcener would have divested him of part of his interest and the same right to adopt subsisting after his death must, in their Lordships' view, have qualified the interest which would pass by inheritance from him.'

That being the case, the rights of the plaintiff as an adopted son of the predeceased coparcener, namely, Venkatasubrahmanyan, would be related back and be precisely the same as his adoptive father had at his death. What those rights are may well be put again in the words of the Privy Council in Anant's case :

'As Appoovier's case, 11 Moo Ind App 75, made clear, the fraction which is at any time employed to describe the quantum of the interest of a male member of the family does not represent his rights while the family is joint, but the share which he would take if a partition were then to be made.'

On that basis, the plaintiff as the adopted son of Venkatasubrahmanyan will be entitled to recover a half share in the estate left by Ramaswami Iyer and inherited by his widow, the 1st defendant. This is on the assumption that the estate, left by Ramaswami Iyer wholly consisted of coparcenery properties. But if the estate left by Ramaswami Iyer were found by the trial Court, after remitting the suit for that purpose, to be in part or in whole the separate property of Ramaswami Iyer, the plaintiff's claim in respect of such separate property of Ramaswami Iyer should be dismissed on the ground that it never vested in or belonged to his adoptive father, and that the plaintiff could not recover the same if it had passed on, by inheritance, to the 1st defendant as heir to Ramaswami Iyer.

48. As already stated, the trial Court has found that the suit properties, other than items 2 and 3 of the C schedule and the F schedule property, were joint family properties. This finding has been recorded mainly on the ground that Ex. A-15, an extract issued by the Sub Registrar, Kodumudi, showed that, out of 72 items of documents detailed therein, the first 49 items indicated that Ramaswami Iyer dealt with the properties covered by them even when he was a minor, and that this fact indubitably proved that those were his ancestral properties. The trial Court considered that this inference was strengthened by some of the other documents listed in Ex. A-15 and also by the settlement register, Ex. A-23, which disclosed that patta No. 4 originally stood in the name of Kuppuswami Iyer, the father of Ramaswami Iyer. The trial Court deduced the inference from Ex. A-23 that at least a portion of the properties of Ramaswami Iyer should have been secured from his father, Kuppuswami Iyer, and then proceeded to state thus:

'From what has been said above, it is established that Ramaswami owned considerable ancestral; property, which, from the various transactions he entered into in respect thereof, raises the presumption of a nucleus, with the aid of which he acquired the remaining property. The onus therefore shifts upon defendant 1, who alleges that the suit property is the self-acquired property of Ramaswami, to prove affirmatively that it was so, and that it was acquired without the aid of the family nucleus. Defendant 1 has not discharged this onus.'

In my opinion, this is hardly a satisfactory way of determining the character of the properties left by Ramaswami Iyer. All that can be inferred from Ex. A-15 is that even as a minor Ramaswami Iyer had dealt with certain items of properties, and that in all likelihood, they were not his self-acquisitions. Neither Ex. B-7, which is a certified copy of the names of the pattadars and Inamdars of Chennasamudram village nor Ex. A-23, already referred to, takes the matter further. In such circumstances it is difficult to agree with the trial Court that there is room for raising the presumption of nucleus with the aid of which Ramaswami Iyer could have acquired other properties. The law in regard to-this matter was stated thus by this Court in Appalasami v. Suryanarayanamurti, ILR (1948) Mad 440 : AIR 1947 PC 189, which has been referred to by the Supreme Court with approval in : [1955]1SCR1 :

'The Hindu Law upon this aspect of the case,is well settled. Proof of the existence of a jointfamily does not lead to the presumption that property held by any member of the family is jointand the burden rests upon anyone asserting thatany item of property was joint to establish thefact. But where it is established that the familypossessed some joint property which from its natureand relative value may have formed the nucleusfrom which the property in question may havebeen acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively thatthe property was acquired without the aid of thejoint family property.'

What was the nature and relative value of the properties, which, on proper evidence, could be held to be ancestral properties forming the nucleus, and what would be the income which such nucleus yielded or would have yielded, has not been considered by the trial Court. Nor any attention appears to have been directed to these questions in the evidence on record. In such a case, as the Supreme Court in Shrinivas' case, : [1955]1SCR1 , pointed out:

'The important thing to consider is the income which the nucleus yields.'

The trial Court on the whole appears to have proceeded on assumption and generalisation without a basis in evidence. As I think that a fresh finding by the trial Court is necessary on the character of the properties left by Ramaswami Iyer, I do not think it right to go into the question in more detail and express my opinion. The finding of the trial Court that the properties left by Ramaswami Iyer, other than items 2 and 3 of the C schedule and the F schedule property were joint family properties, is set aside.

49. As regards the properties covered by item 2 in the plaint C schedule, the appellants contend that it has been erroneously found by the trial Court to be the property purchased by Ramaswami Iver benami for the 30th defendant. Ex. B-2 dated 12nd October 1926 is the sale deed relating to this property and it shows that the property was purchased by Ramaswami Iyer from one Someswara Iyer for a sum of Rs. 300/-. The 30th defendant, giving evidence as P. W. 5, has asserted that throughout since 1926, he had continued to be in possession of the property. It was sought to be made out in the defence evidence that Ramaswami Iyer allowed the 30th defendant to continue in occupation of the house, because he happened to be his grandson-in-law, and; that after Ramaswami Iyer's death, the 1st defendant was collecting rent from the 30th defendant. But the trial Court has declined to accept the oral evidence on the side of the defence to prove payment of rent and implead tenancy, except the evidence of the 30th defendant. In finding that the 30th defendant was the real owner of the item, the trial Court was, in the main, influenced by the fact that he was in possession of the property ever since it was purchased in 1926 from Someswara Iyer. In the circumstances, I do not think that the finding calls for interference.

50. The plaintiff's memorandum of cross-objections relates to item 3 of the C schedule and F schedule property. The trial Court found that the properties covered by them belonged to the 1st defendant absolutely, they having been acquired by her out of the income from the properties which she had inherited from her husband. This finding is based upon a concession made by P. Ws. 8 and 10 that D. W. 1 secured the 3rd item of the C schedule and F schedule property from the income of Ramaswami Iyer's properties in the hands of the 1st defendant. The trial Court also referred to the evidence of D. Ws. 1 and 3 which suggested that these properties were acquired out of the sale proceeds of the jewels belonging to the 1st defendant. But in view of the concession made by P. Ws. 8 and 10, it did not think it necessary to base its finding on the evidence of D. Ws. 1 and 3. The concession made by P. Ws. 8 and 10 is quite sufficient to support the finding of the trial Court. There is, therefore, no substance in the memorandum of cross-objections and the same deserves to be dismissed.

51. To sum up the results of this Judgment: (1) The plaintiff's adoption is valid; (2) the adoption of the 5th defendant is true but not valid; (3) the plaintiff is entitled to recover a half share from the suit properties, other than items 2 and 3 of C schedule and F schedule property, if they are held to be joint family properties; (4) the plaintiff's claim should fail and the suit be dismissed in respect of such of the properties left by Ramaswami Iyer as may be found to be his separate properties; (5) the finding of the trial Court that the suit properties, other than items 2 and 3 of the C schedule and F schedule property, were joint family properties in the hands of Ramaswami Iyer is set aside; and (6) the findings as well as the decree of the trial Court in respect of items 2 and 3 of the C schedule and F schedule property are confirmed. The appeal is allowed in part accordingly.

Inasmuch as whether the plaintiff is entitled to recover a half share in the properties, other than items 2 and 3 of the C schedule and F schedule property, will depend upon a fresh finding to be arrived at by the trial Court on the character of the relative properties left by Ramaswami Iyer, the decree of the trial Court except as regards items 2 and 3 of the C schedule and F schedule property, is set aside, and the suit will stand remitted to its file for fresh disposal, to the extent indicated above, and in the light of the observations and findings contained in this judgment, after recording a fresh finding on the question whether all or any of the properties, other than items 2 and 3 of the C schedule and F schedule property, left by Ramaswami Iyer were joint family properties. The parties will be at liberty to adduce such further evidence, both oral and documentary, as they may desire to adduce on the question of the character of the said properties. As the appeal has been allowed in part, the Court-fee paid on the memorandum of appeal will riot be refunded. The costs in the appeal will abide the result of the suit. The memorandum of cross-objections and the Civil Miscellaneous Appeal are dismissed, but with no order as to costs. The cross-objector will pay the Court-fee due to the Government.

Appendix


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