Venkataramana Rao, J.
1. This second appeal raises a question of some difficulty and importance in the Hindu law of adoption. The facts are undisputed and may be briefly stated. One K. Ramaswami Pillai had four sons namely, defendants 1 and 2,. K.R. Karuppanna Pillai the deceased husband of the 6th defendant and K. R. Ramaswami Pillai the deceased husband of the next friend of the minor plaintiff. They formed members of an undivided family. K. R. Ramaswami died in November, 1924 issue-less leaving his widow Chellathayi. Karuppanna died in 1924 leaving his widow Parvathi the 6th defendant. Ramaswami Pillai the father died in 1929. In the middle of 1936 defendants 1 and 2 effected a partition and divided the joint family properties between themselves. Subsequent to the partition Chellathayi adopted the plaintiff on 25th January, 1937. and the 6th defendant adopted the 3rd defendant on 31st January, 1937. This suit is by K. R. Ramaswami Pillai's adopted son the plaintiff by his adoptive mother Chellathayi for recovery of one-fourth share of the property. The main defence is that the adoption, having taken place subsequent to the partition, it was invalid and in any event the estate to which the defendants became entitled by virtue of the said partition could not be divested by the adoption. Both the lower Courts found in favour of the factum and validity of the adoption. In regard to the validity of the adoption Mr. Rajah Aiyar has stated that in view of the decision in Panyam v. Ramalakshmamma (1931) 62 M.L.J. 187 : I.L.R. Mad. 581 by which I am bound, he does not propose to contest its validity before me. Both the lower Courts have also held that the fact that the adoption look place subsequent to the date of partition is no bar for the recovery of the share which the plaintiff is entitled to as the adopted son of Ramaswami Pillai.
2. The question for decision is whether this view is sound. The arguments for and against the said view have been very ably presented both by Mr. Sitarama Rao on behalf of the plaintiff and Mr. Rajah Aiyar on behalf of the 1st defendant, who is resisting the claim of the plaintiff. I may at the outset state that there is no direct decision of this Court on this question. There is an obiter dictum in Krishna v. Sami I.L.R.(1885) Mad. 64 (F.B.) which is exactly in point in favour of the view that the plaintiff is entitled to claim a share. As against this view there are decisions of the Bombay High Court--(Vide Irappa Lokappa v. Rachayya Madivallayaa I.L.R. (1940) Bom. 42 .Hirachand Gangji v. Sojpal I.L.R. (1939) Bom. 512 and Balu Sahharam v. Lahoo Sambhaji I.L.R. (1937) Bom. 508 (F.B.). The quesion is which view is in accord with the principles of Hindu law as established by judicial decisions particularly of the Privy Council. In this case at the date of the death of the brothers Karuppanna and Ramaswami, the family was undivided and it continued to be undivided until 1936. It is undisputed that if the adoption of the plaintiff was made before that date the adopted son would be entitled to recover the share of his father. The question is whether the fact of partition prevents him from claiming it. The recent decisions of the Privy Council, particularly Amarendra Man Singh's case in Amarendra Man Singh v. Sanatan Singh have laid down that the power of a Hindu widow to adopt a son to her deceased husband is not dependent on the question of her husband's estate vesting in her or on the fact, of the adopted son divesting the said estate vested in any person other than the adopting widow. In the course of the judgment in, Amarendra Man Singh v. Sanatan Singh Sir George Lowndes observed at page 657 thus:
Their Lordships think, from this decision, that the vesting of the property on the death of the last holder in someone other than the adopting widow, be it either 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 or extinction of the power of adoption.
He further added that the true principle must be found upon the religious side of the Hindu doctrine and that, her power would not be exhausted or become extinct until it was shown that the deceased husband had left a son who was capable of continuing the line either by giving birth to a natural son or by his leaving a widow who could continue the line by means of an adoption. The facts in that particular case are instructive. One Brajendra was the owner of an impartible estate and he died in 1903 leaving his son Bibhudendra and his widow Indumati. Bibhudendra died unmarried and thereupon the property vested in one Banamali a distant sapinda by inheritance. Indumati adopted Amarendra, a week after the property vested in Banamali. The Court of Wards took possession of the estate on behalf of the adopted son. Banamali filed a suit for recovery of the estate challenging the validity of the adoption. Their Lordships held the adoption to be valid and dismissed the suit of Banamali. The case was decided on the assumption that Banamali. was a separated sapinda claiming strictly by inheritance and when the property on the death of Bibhundendra vested in Banamali, it did not vest in him as a surviving coparcener. The principle of this decision was followed by their Lordships in Vijaysingji v. Shivsangji (1935) 68 M.L.J. 701 : 1935 L.R. 62 I. A. 161 : I.L.R. 69 Bom. 360 (P.C.) 'That was also a case relating to an impartible . estate. One Himatsangji died leaving two sons Chandrasingji and Bhim-sangji. Chandrasingji succeeded to the estate as the elder son and died in 1899 leafing him surviving his son Chatrasingji and his widow Kesarba. In 1915 Chatrasingji was adopted by the. widow of one Kunwarsahib Bapusahib the proprietor of an impartible estate. Thereupon Kesarba adopted Mansangji as a son to her deceased husband Chandrasingji. In 1918, Bhimsangji filed a suit claiming the impartible estate called the Ahima estate on the ground that Chatrasangji by reason of his adoption in. another family had forfeited his right in the Ahima estate which then devolved upon him according to the rule of primogeniture. The High Court took the view that the adoption was invalid and that Bhimsangji was entitled to the properties which constituted the Ahima estate. They also negatived the claim set up by Chatrasingji that though he was adopted to another family he still retained his estate in the original family. Their Lordships of the Privy Council did not decide this question but reversed the decision of the High Court on the ground that the adoption was valid following Amarendra Man Singh's case . As a necessary consequence. their Lordships held that in the presence of the adopted son Bhimsangji could not inherit the estate. In order to understand the scope of this decision it must be noted that Bhimsangji claimed to succeed to the property by right of inheritance and not as a member of a joint family and the whole case proceeded on the assumption that Bhimsangji was a separated member of the family of Chatrasingji. (Vide the observations of the learned Judges of the Bombay High Court in Bai Kesharba v. Shivsangji I.L.R.(1932) 56 Bom. 619 In both these cases the adoption was not to the last male owner but to the latter's father by his widow and the adopted son was entitled to divest the estate which vested in the heir of the son.. This can only be justified on the ground that the adopted, son as the father's son of the last male owner must be deemed to have been in existence on the date of the father's death and therefore on the son's death would have succeeded as the coparcener of the son in preference to a collateral heir of the son. Both these decisions therefore proceed on the principle that an adopted son for purposes of inheritance to property in the family of his adoptive father occupies the same position as a posthumous son. Their Lordships were not enunciating any new principle but were only re-affirming what they gave expression to in some of the earlier cases. As early as Jatindra Mohan Tagore v. Ganendra Mohan Tagore and Ganendra Mohan Tagore V. Jatindra Mohan Tagore (1872) 9 Beng. L.R. 377(P.C.) Willes, J. in dealing with the rights of an adopted son observed thus:
In contemplation of law, such child is begotten by the father who adopts him, or for and on behalf of whom he is adopted. Such child may be provided for as a person whom the law recognizes as in existence at the death of the testator, or to whom, by way of exception, not by way of rule, it gives the capacity of Meriting, or otherwise taking from the testator, as if he had existed at the time of the testator's death having been actually begotten by him.
This fiction of posthumous son is very clearly brought out by their Lordships of the Privy Council in Pratapsingh Shivsingh v. Agarsingh, Rajasangji (1918) 36 M.L.J. 511 : 1918 L.R. 46 IndAp 97 : I.L.R 43 Bom. 778 (P.C.). In that case a jivai grant was carved out of an impartible estate and given to a junior member of the family for maintenance to be held and enjoyed, as long as the grantee's male line lasted. The last male holder died in October, 1903, leaving a widow but no male issue. On 12th March, 1904 she purported to adopt a boy as heir to her husband. Thereupon the then holder of the impartible estate instituted a suit to recover the property from the adopted son on the ground that the property having reverted to him the adaption was invalid. The High Court gave a decree in his favour but it was reversed by their Lordships of the Privy Council who held that it did not revert to the holder of the impartible estate but was inherited by the adopted son. In the course of the judgment Mr. Ameer Ali made the following observations at page 794:
It was contended with considerable force and some degree of plausibility that in the case of Jivai grant on the death of the holder thereof there is no property left for the adopted son to take, as it reverts to the grantor's estate immediately the jivaidar dies. But it was admitted that a posthumous son would prevent the reversion. If the widow happened to be enceinte the reversion naturally would remain in suspense until the birth of the child, to see whether it was a male or a' female. It is futile, therefore, to say that the property reverts to the grantor's estate immediately the breath leaves the body of the jivaidar. Here the adoption was made within the period of natural gestation, and the property was at the time of the adoption in the possession of the widow and still is in the possession of the adopted son.
The use of the language 'within the period of natural gestation' is very significant as suggesting that the adopted son would be in the position of a posthumous son. The expression 'natural period of gestation' was used in that case because the adoption was made within five months after the death of the last male holder., No doubt in that particular case it was within that period but there can be no doubt as to what his Lordship meant, vis:, that the adopted son is for the purpose of inheritance in the adoptive family in the same position as a posthumous son to whom reference was made earlier. As a logical consequence of this principle, the adopted son has been held to divest the estate of his adoptive mother if the property devolved on, her on the death of her husband or the estate of a collateral heir of his father in whom the latter's estate vested on the death of his father or the interest of his father which has on his death lapsed to his surviving coparcener whoever he be a brother or a father or a grandfather. That the Privy Council limited the fiction of a posthumous son only to the case of an adopted son inheriting or taking the father's estate is clear from another principle they laid down in Bhubaneswari Debi v. Nilcomul Lahiri that is, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral, i.e., as an heir to the property Which was not his father's property. In regard to the property - inherited or interest taken, the Privy Council also imposed a limit to the operation of this fiction. In Krishnamurthi Aiyar v. Krishnamurthi Aiyar Viscount Dunedin laid down the following principle at page 525:
When a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt.
No doubt in that case the disposition was by the adoptive father himself. The said principle would apply to the case of every disposition made by a male holder of the estate who in the absence of an adopted son was entitled to it. This is clear from an early decision of the Privy Council in S.V.P. Raghunada Deo v. S. B. K. Patta Deo where on the death of an elder, brother in an undivided family the estate which was impartible devolved on the younger brother but two years later the widow of the elder brother made an adoption which had the effect of defeating the younger brother to the estate; the Privy Council held that until the adoption the younger brother was entitled to the estate and that no claim for profits could be made against him until the adoption. It is by the application of this principle our High Court held that where a father and son constituted members of an undivided family and the son died leaving a widow giving power to adopt but before the adoption could be made, the father settled all the property on his daughter, the settlement was valid. (Vide Veeranna v. Sayamma (1928) 56 M.L.J. 401 : I.L.R. Mad. 398 . So far as the husband's estate vested in his widow is concerned, it was laid down so early as Bamundoss Mookerjea v. Mussamut Tarinee (1858) 7 M.I.A. 169 that the property is in the widow from the death of her husband till the power of adoption is exercised and that any alienation,, made* by her would be binding on the adopted son if it was for strict necessity. The principle deducible from these decisions is that though the title of the adopted son dates back to the death of the adoptive father for inheriting or taking his adoptive father's estate, he takes the estate subject to the dispositions made within the competency of the person who was entitled to hold the said estate until his adoption.
3. In the light of these principles the question in issue has to be approached. If the true position of the adopted son is that he must be deemed to be a posthumous soil for the purpose of inheritance as if he existed on the date of the death of the adoptive father, a partition made by the coparceners of his father before adoption should have to be reopened and that was the view expressed in the decision in Krishna v. Sami I.L.R.(1885) Mad. 64 (F.B.). In the course of the judgment in that case, Turner, C.J., made the following observations at page 78:
Let C have died before partition, leaving a. widow and having given her power to adopt which she does not exercise till after a partition has been made by B, D and E. When she exercises her power we apprehend that the adopted son would be entitled to call upon his uncles to make over to him a portion of the wealth equal to that which would have been taken by his father.
The reason given is thus stated towards the end of the judgment: 'The existence of a valid power creates a potentiality of inheritance, which may be likened to that of a son in the womb'. No doubt the observation is obiter and not necessary for the decision of that case but nevertheless being the opinion expressed by five learned Judges, it is entitled to the greatest weight. But the Bombay High Court has dissented from this view in more than one of their decisions. In Irappa Lokappa v. Rachayya Madivalayya I.L.R. (1940) Bom. 42 the father and son who were the only members of a Hindu coparcenary divided the family property between themselves and thereafter the widow of a predeceased undivided brother of the father adopted the plaintiff. It was held that though the adoption might be valid he could not recover any share of the property which had already been partitioned before his adoption. Wadia, J., after citing the observations made in Baht Sakharam v. Lahoo Sambhaji I.L.R. (1937) Bom. 508 (F.B.) namely,
Where a coparcenary exists at the date of the adoption, the adopted son becomes a member of the coparcenary, and takes his share in the joint property accordingly.... But..where the adoption takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener, has not the effect of reviving the coparcenary, and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her.
observed thus at page 46:
In principle I am unable to see any distinction between the extinction of a coparcenary by the death of the last surviving coparcener and its extinction by partition, so far as the rights of an adopted son adopted after the extinction of the coparcenary are concerned.' The effect of a partition is to dissolve a coparcenary, with the result that the separating members hold their respective shares as their separate property after the partition.
In Hirachand Gangji v. Sojpal I.L.R. (1939) Bom. 512- it was held by Mr. Justice Rangnekar, sitting singly that 'under Hindu law, on the extinction of a coparcenary by a partition, the widow of a coparcener., who had died long before the partition, cannot make a valid adoption'.
4. In Balu Sakharam V. Lahoo Sambhaji I.L.R. (1937) Bom. 508 (F.B.) the question arose thus: After the death of the last surviving coparcener the property possessed by him vested in his sister. Then the widow of a predeceased coparcener made an adoption. The question was whether the adoption would be valid and whether the adopted son would be entitled to claim the estate from the sister. Beaumont, C.J., and Wadia, J., took the view that the adoption was valid but the adopted son would not be entitled to divest the property vested in the sister of the last' surviving coparcener. Rangnekar, J., took the view that the adoption was invalid but he observed that if the adoption was valid, it would be valid for all purposes and the adopted son would have all the rights of a posthumous son in which case the adopted son would be entitled to divest the estate. The majority view purported to follow the decision in Chandra v. Gojarabai I.L.R.(1890). 14 Bom. 463 on the ground that that decision was unaffected by the recent decisions of the Privy Council Amarendra Man Singh v. Sanatan Singh and Vijaysingji v. Shivsangji Rangnekar, J., also took the same view in regard to the decision in Chandra v. Gojara-lai I.L.R.(1890). 14 Bom. 463. The facts in that case were as follows: Krishnaji and his two sons Bhau and Nana were members of an undivided family. Bhau died first leaving a widow. Then Krishnaji died. On his death Nana succeeded to the family property. Nana afterwards died leaving him surviving his widow Gojarabai who got possession of all his property. After Nana's death however Bhau's widow adopted the plaintiff as son to her husband and he brought the suit against Gojarabai to recover the property from her. It was held that he could not recover. Telang, J., gave his reason thus at page 471:
When the inheritance devolved from Nana upon his widow Gojarabai, it devolved, not by succession, as in an undivided family, but strictly by inheritance, as if Nana had been a separated householder. Strictly speaking, according to the view taken by our Courts, there was at Nana's death no undivided family remaining into which an adopted son could be admitted by virtue of his adoption.
He rested this conclusion on the following principle which he laid down earlier:
The rule deduced from Bhooburmoyee's case (1865) 10 M.I.A. 279 and the other cases in the Privy Council above referred to must then be supplemented by this addition, that the adoption, though, authorised by the husband, cannot divest the estate which has already vested in a collateral' relation of the husband in succession to some other person who had himself become owner in the meantime.
It will be seen that this principle is directly in conflict with that laid down by the Privy Council in Amarendra Man Singh v. Sanatan Singh . In the Patna case, an adoption made by the widow under the authority of her husband divested the estate of the son which was vested in a collateral of the son. Similarly in Vijaysingji v. Shivsangji on Chatrasingh being adopted into another family the adoption made by his mother was held to divest the estate which would vest in a collateral of the son. The learned Judges of the Bombay High Court distinguished the Privy Council cases on the ground that a coparcenary was in existence at the time of the adoption. With great respect to the learned Judges, no such coparcenary was in existence at all. In Amarendra Man Singh's case there was no coparcenary between Bibhuderidra and Banamali and Banamali rested his case as a separated sapinda claiming strictly by inheritance. Similarly in Vijaysingjji v. Shivsangji there was no coparcenary between Chatrasingh and Bhimsingh and the case proceeded on the footing that there was no joint family subsisting between Chatrasingh and Bhimsingh and, Chatrasingh was in possession during his lifetime as the sole surviving member of the joint family consisting of himself and his father and Bhimsingh claimed to succeed to the property only as heir to Chatrasingh. As the parties were governed by the Mitakshara law according to the ratio decidendi of the decision in Amarendra Man Singh v. Sanatan Singh the title of the adopted son of Bhau in Chandra v. Gojarabai I.L.R.(1890) 14 Bom. 463 is superior to the title of the widow Gojarabai and he would be entitled to succeed as a coparcener as if he were in existence on the date of the death of Nana. In Chandra V. Gojarabai I.L.R.(1890) 14 Bom. 463 Telang, J., took the view that at Nana's death there was no undivided family remaining into which the adopted son could be admitted by virtue of his adoption, that is, when Nana died, the coparcenary became extinct and the adopted son of a deceased coparcener could not take the property as a coparcener. That was also the view taken in Balu Sakararam v. Lahoo Sambhaji I.L.R. (1937) Bom. 508 (F.B.). This view is again, if I may say so with respect, in direct variance with the decisions of the Privy Council in Amarendra Man Singh v. Sanatan Singh and Vijiaysingji v. Shivsangji In both those cases, Bhibhudendra and Chatrasingh were the last surviving coparceners of the coparcenary which consisted of themselves and their fathers, i.e., in one case Bibhudendra and Brajendra during the lifetime of Brajendra were coparceners and in the other Chatrasingh and his father were during the lifetime of Chatrasingh's father coparceners so that the coparcenary must be deemed to have become extinct on the death of Bibhudendra and Chatrasingh according to the view taken in Chandra v. Gojarabhai I.L.R. (1937) Bom. 508 (F.B.) and Balu Sakharam v. Lahoo Sambhaji I.L.R. (1937) Bom. 508 (F.B.). But in both the cases the Privy Council held that the adopted son would be entitled to succeed to the property held by the last male owner. The ratio decidendi of these decisions is that either the coparcenary did not become extinct by the death of the last, surviving coparcener and must be deemed to subsist until the adoption by the widows of deceased coparceners is rendered impossible by death or any other supervening circumstances or the termination of the coparcenary does not affect the adopted son's right to take the share of his adoptive father just as a posthumous son would. Both the decisions in Amarendra Man Singh v. Sanatan Singh and Vijaysangji v. Shivsangji clearly imply that if the adoption is valid, the devolution of property on the adopted son would follow as a necessary consequence.
5. In Mst. Draupadi v. Vikram I.L.R. (1939) Nag. 88 Niyogi, J., after a full discussion of the question took the view that
the effect of Amarendra Man Singh v. Sanatan Singh and Vijaysingji v. Shivsangji is to denude Chandra v. Gojarabai I.L.R. (1937) Bom. 508 (F.B.) and upheld an adoption on facts similar to those in Chandra V. Gojarabai I.L.R. (1937) Bom. 508 (F.B.).
6. After pointing out that the Bombay cases proceeded on a misconception of the coparcenary being in existence between the last male holder and the heir who succeeded him in those cases, the learned Judge observed (at page 102) that the effect of those decisions is
that a person in whom the property is vested after the death of the sole surviving member of a joint family takes it subject to defeasance in the. event of an adoption by the widow of a predeceased member of the quondam joint family.
7. He finally concluded by saying that
It is the right of the adopted son and not the existence of the coparcenary that is the true criterion for determining the judicial effect of the adoption.
8. Mr. Rajah Aiyar contended that the decision of Sir Dinsha Mulla in Bhimabai v. Gurunathgouda Khandappagouda (1932) 64 M.L.J. 34 : L.R. 60 IndAp 25 : I.L.R. 57 Bom. 157 (P.C.) would seem to imply that the adoption after the extinction of the coparcenary-may not be valid or at least would not divest an estate vested in the members of the family after the partition. The passage relied on is this:
The adoption of appellant No. II was not made after the extinction of the coparcenary, but during its subsistence, the last surviving coparcener being Dattatraya.
The learned Judge was only repelling an argument based on Chandra v. Gojarabai I.L.R.(1890) 14 Bom. 463 and distinguishing it by pointing out that in the particular case he was dealing with there was no extinction of the coparcenary at all because the last surviving coparcener was alive and he was not enunciating any principle that on the extinction of the coparcenary the adopted son's power to take the share of the adoptive father is taken away. On the other hand the decision seems to imply that a coparcenary must be deemed to be subsisting even if there was one coparcener.
9. Mr. Rajah Aiyar, laid considerable stress on a passage in West and Buhler and the observations of Mookerjee, J., in Harek Chand Babu v. Bijoy Chand Mahatab (1905 Cri.L.J. 87 The passage in West and Buhler on which he relied runs thus:
partition is an inherent right and if that right is exercised it will not be open to the adopted son to divest an estate created by severance.
The passage in the Calcutta Law Journal case is to this effect:
The application of the fiction cannot be extended for the purpose of entitling the adopted son to take the property as it stood at the moment of the death of the person to whom he is adopted; he cannot dispute the previous acts of the adoptive mother unless they were in excess of her legal powers as widow in possession, nor can he question the acts of a previous male holder in whom as a member of a joint Mitakshara family, the; property had vested as full owner.
The contention of Mr. Rajah Aiyar is that it is the inherent right of every coparcener to effect a partition, and once the partition is effected, a new status is created by resolving joint rights into several rights and each member of the family becomes a separated householder constituting a separate coparcenary consisting of himself and his sons and grandsons and the adopted son must take the property as it stood at the date of the adoption and there would be no coparcenary property which he could take on the date of adoption. That was exactly the reasoning of the learned Judges of the Bombay High Court and the question is whether it is sound in principle. As I have already indicated, the effect of the Privy Council decisions is. to treat the adopted son as a posthumous son and clothe him with all the rights of an aurasa son for the purpose of succession in the adoptive family whether by inheritance- or survivorship. The following passage in Mayne's Hindu law gives an accurate summary of the result of the Privy Council decisions thus:
The principle therefore appears to be that either the heir or coparcener who takes in the absence of the adopted son takes only a defeasible estate, that the male line is not regarded as extinct until the continuation of the line by adoption is impossible and that the adopted son succeeds as if he were the aurasa son and ousts every one whose right to enter was only temporary, operating merely to prevent the ownership from being in abeyance pending any such succession as the adoption, brings about.
10. As the Privy Council put it in Madana Mohana Deo v. Purushotthama Deo the interest of the (deceased Coparcener lapsing by survivorship was only provisional and subject to defeasance by the emergence of a male heir to the deceased coparcener which the adoption may bring about. As already pointed out by me the only limit which the Privy Council imposed in regard to the application of the fiction of the posthumous son was that the adopted son would be bound by all the dispositions of the provisional holders of the estate within their competence the result of which is that the family property is carried away from the family. (Vide Krishnamurthi Aiyar v. Krishnamurthi Aiyar . The adopted son therefore can only take the property which stood undisposed of at the date of the adoption but so long as the property was held by the members of the family and remained in the family the fact that they chose to hold in severalty would not affect the right of the adopted son to claim his legitimate share as appertaining to his adoptive father in the property which was held by them and not validly disposed of. Mr. Rajah Aiyar contends that the partition must be put on the same footing as a valid alienation, but I am not able to agree with his contention. Partition may no doubt in a sense be a transfer but It is in substance an adjustment of the ownership of many persons in the joint family property by assigning particular portions of it to a several ownership. It cannot strictly be called an alienation of joint family property. Though a partition is effected it is always liable to be reopened at the instance of a posthumous son. Therefore if the adoption is to be held valid, there is no escape from the position that the adopted son is entitled to re-open the partition made by the surviving coparceners of the deceased adoptive father. I would refer in this connection to the observations of Rangnekar, J., in Balu Sakharam v. Lahoo Sambhaji I.L.R. (1937) Bom. 508 (F.B.):
There is no authority as far as I know, for the view that an adoption would be valid, and yet the adopted soil would not be entitled to succeed to the property, to which if there was a natural son of the adoptive father,' the latter would have succeeded, and logically it seems to me the position is inconsistent.
That is also the view of Wallis, J., (as he then was) in Adivi Suryaprakasa Rao v. Nidamarti Gangaraju I.L.R.(1909) Mad. 228. The learned Judge referring to Chandra v. Gojarabai I.L.R.(1890) 14 Bom. 463 observes thus at page 231:
In the last case it was held that such an adoption if made after the death of the surviving coparcener and the vesting of the estate in his widow could not divest the estate, as of course it would if valid.
(The italics are mine).
11. The learned Judge was inclined to the view that if the adoption was held to be valid, the adopted son must divest the estate which vested in the widow of a surviving coparcener and the principle would equally apply to the case of a partition effected by the surviving coparceners of his father. With great respect to the learned Judges of the Bombay High Court I am unable to follow, their view. (Vide Balu Sakharam v. Lahoo Sambhaji I.L.R. (1937) Bom. 508 (F.B.) Hira Chand Gangji v. Sojpal I.L.R. (1939) Bom. 512 and Irappa Lokappa v. Rachayya Madivallayya I.L.R. (1940) Bom. 42).
12. Mr. Rajah Aiyar again contended that the decisions in Bhubaneswari Debi v. Nilcomul Lahiri and Amarendra Man Singh v. Sanatan Singh cannot co-exist and the decision in Bhubaneswari Debi v. Nilcomul Lahiri must be said to have laid down that the rights of an adopted son date only, from the date he was adopted. As already pointed out, the 12 Calcutta case was dealing with collateral succession and their Lordships of the Privy Council only confined the title. of the adopted son to date back to the death of the adoptive father only in regard to his inheriting or taking the share of the adoptive father in the adoptive family. Niyogi, J., also seems to suggest a reason for this view by pointing out that 12 Cal. 18 deals with a case of an obstructed heritage whereas in the case of an adopted son taking, the property of his adoptive father it would be an unobstructed heritage. (Vide the observations in Mst. Draupadi v. Vikram I.L.R. (1939) Nag. 88 . Whether this is the ground on which the Privy Council sought to impose such a limitation or not, it is not necessary to consider. But as the Privy Council has introduced that limitation we are bound to follow it and therefore Bhubaneswari Debi v. Nilcomul Lahiri cannot' be relied on as an authority for curtailing the rights of an adopted son, in the adoptive family.
13. In support of his argument Mr. Sitarama Rao relied on certain texts of Hindu law relating to an after-born son begotten after partition and any son of disqualified heir being entitled to take the share of their father after partition has been effected in the family. But as pointed out by Rangnekar, J., (Vide Hira Chand Gangji v. Sojpal I.L.R. (1939) Bom. 512 they are governed by different considerations and special texts of Hindu law and the analogy furnished by them would be of no assistance in the solution of the question in issue as the adopted son is likened to a posthumous son and his rights have to be determined on that footing.
14. Mr. Rajah Aiyar has pointed out the several anomalies and inconveniences which would follow from adopting this view. True, there are anomalies in adopting either view. But having regard to the Privy Council decisions, the only logical conclusion is that the plaintiff in this case is entitled to claim a share. The view taken by both the lower Courts is correct and I therefore dismiss the second appeal with costs.
Leave to appeal granted.