1. This appeal was referred to a Bench by Rajagopalan J. as it raises an interesting but difficult Question in the Hindu law of adoption.
The following pedigree will make the appreciation of facts and relationship of parties easy:
Ayyalu chettiar Thiruvengaldammal
| | | |
Balakshmi Lakshmi Venkatabala Nagaingam
(D.3) (Piff.) died:127-11-23 died 13.2.30
| (D. 1)
died 1-7-24 |
Thiruvengadammal Srinivasa Chetti
2. Venkatabalu and Nagalingam became divided In 1917, Exhibit A-1 dated 1-7-1917 is the registration copy of the partition deed between them. Venkatabalu died on 27-11-1023 leaving no male issue but a widow, venkatalakshmi, who was then 'enceinte'. A daughter was born, but she died on 1-7-1924, the mother having predeceased her in June 1924. After the death of the widow and the daughter, the inheritance of Venkatabalu devolve^ on Narasammal, his mother who held the estate till her death in 1942.
Under the Hindu Law of Inheritance Amendment Act No. 2 of 1929 the sisters, the third defendant and the plaintiff, succeeded to the estate, as Nagalingam the divided brother of Venkatabalu died even in 1930. Nagalingam's widow, Gowri Ammal, adopted the second defendant in 1945. The estate of Venkatabalu continued in the possession of Gowri Ammal as Narasammal was living at the time of her death as a member of Nagalingani's family.
The plaintiff, one of the sisters of Venkatabalu Instituted the present suit out of which this appeal arises, in 'forma pauperis', to recover possession of the estate of Venkatabalu for herself and the third defendant from defendants 1 and 2, the first defendants being Gowri Animal. The first defendant died in 1948 after the institution of the present suit.
The second defendant's adoption by Gowri Animal was established in O. S. No. 4 of 1946, Sub Court, Mathurai, and the second defendant resisted the present suit, claiming that he was the preferential heir to the estate of Venkatabalu by virtue of his adoption in 1945, that his rights dated back to 1942 when the succession to venkata-balu's estate opened after the death of Nara-sammal, and that by the retrospective operation of his adoption he was entitled to displace the title of the plaintiff and the third defendant, notwithstanding the fact that the estate had vested in them immediately after the death of Nara-sammal.
This contention was not accepted by the learned Subordinate Judge, and the suit was decreed, in favour of the piaintiff and tho third defendant, subject to the condition of a payment of Rs. 500 to the second defendant in accordance with the terms of the partition deed of 1917. The second defendant who was unsuccessful in the lower court-has preferred this appeal.
3. Mr. Rajagopala Aiyangar, learned advocate for the appellant, wanted to raise a new point which was not raised in the court below, namely, that there was an oral surrender by Narasammal to Nagalingam who continued in possession of the estate till his death in 1930, and that thereafter the possession remained with his widow, Gowri Ammal.
On a perusal of the pleadings and issues in the suit, we are unable to find any semblance of a plea of this nature either in para. 2 of the written statement of the second defendant or elsewhere. The question of oral surrender is one essentially of fact, and cannot be permitted to be raided for the first time in appeal, when there was no pleading, no issue and no trial on that question in the lower court. We therefore de-dined to entertain the plea for the first time in this appeal.
4. The main question that falls for determination is whether tho second defendant is entitled by virtue of his adoption to divest the title to the estate of Venkatabalu from the heirs-at-law in whom it had vested in 1912 and retain possession, of the property. Had the adoption been made before the death of Narasammal, the second defendant would have taken the estate of Venkatabalu in preference to the sisters who come in later in the order of succession. But could he do so by dating back his rights to the date of death of his adoptive father by the adoption made in 1945? The point raised, however, presents some difficulty in view of the decisions of the Judicial Committee and of the High Courts in India in which seemingly conflicting views were expressed.
5. The appeal was argued on both sides with clearness and ability, and all the relevant authorities were exhaustively cited and critically examined by counsel on both sides.
6. As Mayne had observed, the law of adoption was cvolved from two texts and a metaphor. The other principles governing the law of adoption were developed and enunciated by Judicial decisions. One of the most troublesome questions which taxed the ingenuity of lawyers and troubled the mind of the Judges was to draw the line where the power of a widow to make an adoption to her husband terminated. The boundary line was not drawn with clarity, and was not rested on any logical basis till the decision in -- 'Amarendra Mansingh v. Sanatan Singh' , which was pronounced by the Judicial Committee in 1933.
Before that decision, the prevailing opinion was that when once the estate had vested in an heir of the last maleholder, other than the adoptive widow by succession or survivorship or reverter, the widow's power to make an adoption was at an end. Support was derived for this opinion, from the observations of Judicial Committee in the well-known case of -- 'Mst. Bhoobun Moyee Debia v. Ramkishore Acharj Chowdry', 10 Moo Ind App 279 (PC) (B), which was explained in the later decision, -- 'Padmakuman Debi v. Court of Wards', 8 Cal 302 (PC) (C), which arose on the same facts but after the death of Bhoobun Moyee. It was also considered that when once the limit was reached the power of adoption became extinct and was thereafter incapable of execution.
These two decisions were followed by the Judicial Committee in -- 'Thayammal v. Venkata-ramana', 10 Mad 205 (D), and -- 'Tarachurn Chatterji v. Sureshchunder Mukerji', 17 Cal 122 (E), on more or less similar facts. One observation however, may be made regarding these decisions. As the estate descended from the son to the widow by succession as in -- '10 Moo Ind App 279 (PC) (S)', oven if the mother could validly have exercised the power to make an adoption, the adopted son could not have displaced the title of the son's widow as he would not be a preferential heir to the estate of the son displacing the title of the son's widow in whom the property had vested. The inability to divest the estate was treated as a limit to the exercise of the power of the mother to make an adoption to continue the line and perpetuate the lineage.
7. In the development of this aspect of the law however it was recognised that a strict observance of such a rule in the case of coparcenary property would be inequitable and unjust, and therefore it was held that when a deceased coparcener's widow made an adoption the adopted son could take the share of his adoptive father in the joint family property, whether it was an impartible estate or partible property, notwithstanding that the devolution by survivorship of the adoptive father's share would enure to the surviving coparceners of the family.
It was thought that the rule that an estate once vested could not be divested was not violated, as the vesting in the case of coparcenary property was only provisional and was not absolute. The remaining coparceners took the interest of the deceased coparcener by survivorship, but in their hands it was only a defeasible estate (See -- 'Virada Pra-tapa Raghunada Deo v. Brozo Kishoro', 1 Mad 69 (PC) (F); -- 'Bachoo v. Mankorbai', 31 Bom 373 (G); -- 'Yado v. Namdeo', AIR 1922 PC 216 (H) and -- 'Madanamohana Deo v. Purushothama Deo', AIR 1918 PC 74 (1)). The vesting of the property therefore in any event in the case of joint family property was not treated as a limit for the exercise of the power of adoption by the widow. But the true principle was never formulated with clarity until 1933, when the Judicial Committee pronounced the decision in .
It is therefore needless to follow the fluctuations of judicial opinion from 1863 to 1933 and attempt to reconcile them with a view to evolve a satisfactory solution of the question, as that task was performed by Sir George Lowndes in . This decision, it is needless to state, came as a great relief to lawyers and Judges, who had to consider this vexed question. Sir George Lowndes in a very comprehensive judgment examined the basis and the religious foundation of adoption under Hindu law after subjecting the tests bearing upon the question as well as the earlier judicial decisions to a very close critical examination. The decision may therefore be taken as the starting point for the discussion of the point raised in this appeal.
8. In the dispute related to succession to an impartible zamindari, which was separate property (not coparcenary property) -- sec p. 643 (of 12 Pat.) This fact has some bearing upon the question, and therefore, it is necessary to bear it in mind. The pedigree is at p. 156 of the report. Raja Brajendra was the holder of the estate, and on his death his son, Bibhudendra succeeded to it. He was then A minor, and therefore the estate came under the management of the Court of Wards. Bibhudendra died unmarried at the age of 20 years and 6 months and he was therefore a minor. The estate then passed by inheritance to Banamali, a descendant in the collateral line, who was entitled to succeed to the estate under the customary law of primogeniture governing succession to that estate which excluded females from inheritance.
Within 8 days after the death of the son, Rani Indumati the widow of Brajendra adopted Ama-rendra, and the estate continued in the possession of Amarendra and his mother. Banumali thereafter sued to recover the estate from Amarendra. He was successful in the courts in India, but his rights were negatived by the Judicial Committee.
The judgment of the High Court is -- 'Amren-dra Mansingh v. Banamali Singh', : AIR1930Pat417 (J). Two contentions were raised before the Board: (1) Treating Bananali as a separate sapinda claiming strictly by inheritance, the authorities established that when once the estate had vested in the last holder other than the adopting widow, the power of adoption was at an end. The Rani was excluded from inheritance by custom, and she could no longer adopt. (2) Where the husband from whom the power to adopt was derived, left a son to succeed him, and that son had attained full legal capacity to continue the line, the power of his mother was equally at an end, and this would be the case whether the family was separate or Joint.
In considering these questions it was observed that the foundation of the doctrine of adoption under Hindu law was the duty which was cast on every Hindu to provide for the continuance of the line for performance of the necessary rites to the ancestors. The devolution of the property when the line was continued, though it was an inherent right of the son, was altogether of secondary importance. The property followed the status of the son, who had to administer to the spiritual needs of his ancestors.
The Judicial Committee decided in -- 'Pratap Singh Shiv Singh v. Agarsinghji Raisinshji', AIR 1918 PC 192 (K) that the right of a widow to make an adoption to her husband was not dependent on her inheriting the husband's estate. It followed logically from this that the vesting of the property on the death of the last male owner in some one other than the adopting widow, be it either a coparcener of Joint family property taking by survivorship or an outsider claiming by reverter or a person taking the property by inheritance under a special rule Of succession, could not take away the right and duty of the widow to continue the line, and her power of adoption for that reason did not become extinct.
After a review of the authorities the first question was answered by their Lordships at p. 161 as follows: '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 die 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.'
9. The second question related to the meaning to be given to the expression 'full legal capacity to continue the lino'. This was interpreted to mean that the son should leave either a natural born son who would continue the line or at least leave behind him a widow who could continue the line by adoption. If there was a son's widow lower down in the line, the existence of such a widow would terminate the power of the mother higher in the line to make an adoption.
Otherwise, the duty which was conditionally laid upon the mother after the father's death would automatically revive. If the son were to die without continuing the line or without leaving a widow who would be a potential mother to continue the line. The essential object of adoption being the perpetutation of the line, if the son dies without doing so or without leaving the means for such continuance, it was not only the right but the duty of the mother to perpetuate the lineage by making an adoption.
In view of the answers given by their Lordships to the two questions raised, they had no doubt in upholding the adoption of Amarendra reversing the decision of the courts in India. Notwithstanding the fact, that the estate had vested before the adoption in Banamali, when once the conclusion that the power was validly exercised by Rani Indumati was reached, their Lordships had no hesitation in holding that Amarendra was entitled to the estate, for the property automatically vested in Amarendra when the adoption was made.
The High Court, as appears from the judgment in -- ' : AIR1930Pat417 (J)' discussed the question of vesting and divesting elaborately, but the Judicial Committee thought it unnecessary to deal with it at length, as according to their view if the adoption was valid, the son was automatically entitled to the estate.
10. The line of the father Brajendra which continued only one step came to a standstill with the death of Bibhudendra who died unmarried. The proper person and the only person who in that event was under a duty to revive and continue the line was Rani Indumati, and when she exercised that power and continued the line the property which passed into the collateral line on the death of Bibhudendra by reason of the special rule of succession excluding females came back to the line.
If females were not excluded, Rani Indumati would have obtained the estate. The intermediate vesting of the estate in Banamali was, it must be assumed, treated by the Judicial Committee as provisional, and the estate in his hand was a defeasible one, exactly in the same manner and to the same extent as in the case of joint family property. When once the line was revived, the property which had belonged to that line came back to it. The same principle, it may be mentioned, was applied in -- 'AIR 1918 PC 192 (K)', where property went by reverter consequent on the temporary extinction of the line of the grantee, but came back when the line was continued by adoption.
11. The next important decision of the Judicial Committee after Amarendra's case was the decision in -- 'Vijaysinaji Chha-trasingji v. Shivsangji Bhimsanji' , in which the facts were similar, except that the estate passed to the collateral line, as Chatra-singji was adopted away into another family known as Bhanaria family. After the Ahima estate devolved upon the uncle of Chatrasingji, i.e., Bhim-sangji, Kesarba, the mother of Chatrasingji adopted Mansangji. Here also, the property was an impartible estate, which was governed by a special rule of succession excluding females. After the adoption, Bhimsangji sued to recover the Ahima estate from Mansangji and others.
The Courts in India held that the adoption of Mansangji was invalid. This decision was reversed by the Privy Council as according to them the adoption of Mansangji was valid, and in his presence Bhimsangji, the uncle, had no right or title to recover the estate and could not therefore maintain the suit. The Privy Council declined to decide the question which was raised, viz., whether Chatrasingji in whom the Ahima estate vested before adoption carried that estate with him when he was adopted into the Ehamaria family.
The Privy Council followed the decision in and reiterated their view in these terms:
'The purpose of an adoption is to secure the continuance of the line, and when the natural son has left no son to continue the line, nor a widow to provide for its continuance by adoption, his mother can make a valid adoption to her deceased husband, although the estate is not vested in her. It was on this ground that the adoption in that case (Amarendra's case) which was made by a widow after the death of her natural son without leaving a son or a widow, was found to be valid, though the estate had vested in a collateral of the son. In the present case the natural son with his wife having ceased to exist for the purpose of continuing the line in the Ahima family; his mother was entitled to make an adoption to secure that object. The adoption of Mansangji undoubtedly served the purpose in question, and it cannot be impeached simply because it would defeat the estate which had vested in some other person.' It is therefore clear that if once the adoption is valid, the fact that the effect of it would be to divest the estate which had vested in some other person is not a consideration for holding that the adoption is invalid nor is it a reason for not divesting the estate and vesting it in the adopted son.
12. These two decisions of the highest authority as well as the decision in -- 'AIR 1918 PC 192 (K)' in our opinion, not only define the limits on the power of a widow to make an adoption even though the estate was not vested in her but in some other person, who took it by succession, survivorship or reverter but also establish on the line theory, if one may use that expression the adopted son would get the property belonging to the line in whosoever's hands it might be at the time of adoption.
The decisions approximate the position of the adopted son as far as possible to that of a natural born son in relation to the property of the adoptive family, whatever may be the character and the nature of the property; that is, whether it is joint property or separate property or whether it is partible or impartible property, or even if it was property which was acquired under a grant subject to reverter when the main line became extinct, it does not matter.
The reflection of the natural born son is made as complete as possible. So far as the continuity of the line is concerned, when the adoption is made it operates retrospectively leaving no hiatus. The adopted son's rights are similar in all respects to that of a natural born son, except that he cannot question to some extent the prior alienations as in -- 'Veeranna v. Sayamma', AIR 1929 Mad 298 (M) and in competition with a subsequently born natural son he takes a lesser share. He displaces the titles of all those in respect of the property of the adoptive family, who when the hiatus in the line is closed hold the property under an inferior title to that of the adopted son. The intermediate vesting of the property is treated as provisional, and the emergence of an adopted son with a superior title divests the estate.
On this line theory, all the decisions whether they relate to joint family property or impartible property or separate property, can be reconciled and explained.
13. As observed more than once by the Judicial Committee and the courts in India, a Hindu family cannot be brought to an end while there is a possibility either in nature or by law of bringing into existence a male member. So long as there is a potential mother, the family is not at an end. The same principle may be stated also from another point of view. The male line in Hindu law does not become extinct so long as there is a potential mother to continue the line.
It therefore follows as a logical corollary that if Joint family property devolves by inheritance on the widow of the last male member or coparcener or even to a collateral in the absence of the widow, if there be in existence a widow of a predeceased coparcener who could revive the line, i.e., the coparcenary by adoption the property will revert back to the family.
The decision in -- 'Chandra v. Gojarabai', 14 Bom 463 (N) was definitely overruled by the Judicial Committee in -- 'Anand Bhikappa v. Shankar Ramachandra', : AIR1943Bom196 (O). Therefore the decisions which followed -- '14 Bom 463 (N)' are no longer good law. It has been held that even partition of the family properties between the surviving coparceners would not prevent the adopted son of a predeceased coparcener, the adoption having been made by his widow after partition, from taking his share in the family property. See -- 'Sankaralingam v. Veluchami', AIR 1943 Mad 43 (P); -- 'Bajirao v. Ramakrishna', (Q) approved by the Privy Council in '' and also the decision of the Federal Court in -- 'Tatya Shantappa v. Ratnabai' .
14. In 'Anant's case (O)', the Bombay High Court took the view that after , the adoption of Anant was valid but that the adoption could not divest the estate which devolved on a collateral after the sole surviving coparcener's death. This view was negatived in by the Judicial Committee.
15. Separate property of the last maleholder which devolves on his death without a son, upon his widow does not present much difficulty, as when the adoption is made by the widow, the line is continued and the adopted son takes the estate as a preferential heir postponing the widow. If, however, a mother succeeds to the estate of her son, who dies without leaving a widow to continue the line, and the line is revived by the mother, the adopted son no doubt would not be a preferential heir to his brother's estate in the presence of the mother.
The Guntur case, -- 'Vellanki Venkatakrishna, Rao v. Venkatarama Lakshmi', 1 Mad 174 (PC) (S) was taken as authority for divesting the estate of the mother also. See -- 'Pattu Achi v. Rajagopal Pillai', AIR 1941 Mad G99 (T), where the matter is fully discussed. If the property however consisted of a grant made with the condition that it should continue so long as the male line lasts and an adoption is made after reverter of the property to the grantor's family, the adopted son's rights would date back to the date of death of his adoptive father and he would bridge the gap and take back the property (See -- 'AIR 1918 PC 192 (K)'.
16. In the case of impartible estates there may be joint family estates or separate estates. In the former case if an adoption is made after the property had passed out of the family, on the analogy of the partible joint family property the adopted son, as the coparcenary is revived by adoption, gets back the joint family impartible estate. If the impartible estate is separate property governed by a special rule of succession excluding the females and the property passes out of the adoptive family into a collateral branch when the line of the adoptive father who owned the estate is continued after the death of the natural son, the property goes back to the adopted son as he would be in the line of heirs entitled to take the property. See and . In our opinion falls into the last category, though the property was not an impartible estate.
17. The decision in 'AIR 1943 PC 193 (O)' requires careful consideration as it was strongly relied on by learned counsel for the appellant and was pressed upon us as being almost decisive in his favour. The pedigree is printed at p. 197 of the report.
The property in dispute was Watan land governed by the Bombay Hereditary Office Act 3 of 1874 as amended by Bombay Act 5 of 1886. 'Watan property' according to the definition in the Act of 1874 is property held as remuneration for the performance of the duty appertaining to a hereditary office. The watan property and the hereditary office constituted the watan. The Act of 1874 imposed certain restrictions on the inheritance of watan property and watan rights.
In the Act of 1886 except the last maleholder's widow, the other female members of watan family are postponed in the order of succession to a male member of the family qualified to inheritance as watan. In a partition of 1857 Punnappa, in the pedigree got for his share the Alnavar watan with its lands. Narayan, one of his sons, separated and took for his share two plots of land Rs. Nos, 173/2 and 174/1. Punnappa died in 1901 and his son Gundappa died in 1902. Bhikappa. and his son Keshav became thereafter the sole surviving coparceners. Bhikappa died in 1905 leaving Ganga-bat, his widow and his son Keshav. Narayan died in 1903 leaving a widow who forfeited her rights to the estate as she remarried immediately. The two plots allotted to Narayan therefore passed by inheritance to Keshav. Keshav died in 1917 unmarried. At the time of his death Keshav was the owner of the coparcenary watan property and also the two plots which he obtained by inheritance from Narayan.
On Keshav's death, as his mother was excluded from inheritance, the watan property devolved on Shankar a remote collateral of Keshav, as would be seen from the pedigree. Shanker's name was registered in 1928 by the Collector under the Act in spite of the opposition of Gangabai. In 1930 Gangabai (Keshav's mother) adopted Anant and instituted a suit on his behalf as his next friend to recover possession of the property from Shankar.
She was successful in the first court, but that decision was modified by the High Court practically negativing the rights of the adopted son. The adoption though valid, it was held, could not revive the coparcenary on the principle of the earlier decision of that court in --'14 Bom 463 (N)', that the adopted son could not recover the estate from Shankar who took it as the heir of Keshav.
The Judicial Committee disagreed with the view of the High Court and overruled the decision in -- '14 Bom 463 (N)', The coparcenary could not end so long as there was Gangabai who could continue the line and revive the coparcenary in spite of the fact that the property devolved upon Shankar. Anant therefore independently of his being the nearest in the line of Keshav's heirs according to the special rule which governs watan property, it was held, was entitled to succeed to the joint family watan property, as the adoption had the effect of reviving the coparcenary.
18. The portion of the judgment which is relevant for the decision of this case is the one which relates to the two parcels of watan land which Keshav inherited from Narayan. It was claimed that Anant was granted a decree for these plots also on the basis that he was entitled to take as a collateral heir of Keshav, and though at the time the inheritance opened Anant was not in existence his rights dated back by reason of the adoption and he was allowed to displace the title of Shankar. The position of the second defendant it was contended in the instant case 'vis a vis' the property of Venkatabalu was exactly the same as that of Anant in respect of the two parcels of land. There are no doubt certain passages in the judgment of the Judicial Committee which at first appear to be contradictory, but on a closer examination no such inconsistency exists.
At p. 200 of the Report their Lordships consider the interpretation placed by the Calcutta High Court on -- '10 Moo Ird App 279 (B)', in -- 'Fai-zuddin Ali Khan y. Tincowri Saha-', 22 Cal 565 (U) & the view expressed by Telang J. in -- '14 Bom 463 (N)' and point out that after they do not hold good.
The decision in -- '22 Cal 565 (U)' lays down that no adopted son could claim the property of a person other than his adoptive father if such estate had. vested before the adoption in some heir other than the adopting widow, and Telang J. in -- '14 Bom 463 (N)', also expressed the same view in different words.
He expressed the opinion that the adoption by a widow did not divest the estate of one on whom the inheritance had devolved from a lineal heir of the husband.
, established that the estate need not have vested in the adopting widow to make the adoption valid, and that when once the line was properly continued or revived, the property automatically went back to the line as ancillary to the adoption. Here again, the Judicial Committee emphasised the importance of the line.
Reference was made in the course of the judgment to -- 'Bhubaneswar Debi v. Nilcomul Lahiri, 12 Cal 13 (V)', where the Board enunciated the rule of law in these terms: 'According to the law as laid down in the decided cases, an adoption after the death of a collateraldoes not entitle the adopted sou to come in as heir of the collateral.'
But their Lordships distinguished that class of cases as relating to 'inheritance' and which proceeded on the footing that the adoptions were valid. The Judicial Committee declined to express any opinion about the decision.
They then proceed to consider and , and it was held that both the cases proceeded on the basis that the impartible estates were separate properties and not joint family estates. The principle governing the succession to impartible estates was adverted to in the following passage at p. 201:
'Now an impartible estate is not held in coparcenary ('Rani Sartaj Kuari v. Rani Deoraj Kuar', 15 Ind App 51 (PC) (W)) though it may be joint family property. It may devolve as joint family property as separate property of the last male owner. In the former case it goes by survivorship to that individual, among those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom, e.g., lineal male primogeniture. In the latter case jointness and survivorship are not as such in point. The estate devolves by inheritance from the last male owner in the order prescribed by the special custom or according to the ordinary law of inheritance as modified by the custom. The zamin-dari property claimed in was adjudged to belong to the adopted son on this last mentioned principle -- that is, as heir of the last male owner.'
The principle of divesting applicable to impartible estates which are separate property was held equally to apply to the case of watan property which was governed by the special rule of succession. In principle it was observed that no distinction could be made between watan property which was joint family property and watan property which was separate property as in either case the same rule of succession applied.
At the end of p. 201 this is what their Lordships state:
'If the effect of an adoption by the mother of the last male owner is to take his estate out of the hands of a collateral of his who is more remote than a natural brother would have been and to constitute the adopted person the next heir of the last male owner, no distinction can in this respect be drawn between property which had come to the last male owner from his father and any other property which he may have ac-quired. 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 plaintiff'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.'
The gist of this passage undoubtedly is that footh the kinds of property were placed on the same footing so far as succession was concerned, and the effect of the adoption was to bring the adopted son into the line of heirs who could displace the title of Shankar to the estate. It is, therefore, in our opinion, no authority for holding that in the case of collateral succession, that is, the right of the adopted son to succeed to an estate which did not belong to the adoptive father's family or line but to a collateral, the principle in would apply. No doubt the separate property of Keshav was not, in fact, the property of the adoptive father, but for the purpose of succession their Lordships treated it as standing on the same footing as that of the adoptive father's property which devolved on Keshav and to which Anant was allowed to succeed displacing the title of Shankar. Thus was not treated as a case of a, true succession to a collateral, while -- '12 Cal 18 (PC) (V)' was a case of such a succession to a collateral.
19. It will be observed that while the Privy Council adverted to the decision in -- '12 Cal 18 (V)' they did not express any opinion regarding its correctness. They felt that in the cases of inheritance the position was governed by the general law of inheritance and not by the special rule of succession applicable to watan property or impartible estates.
All the four decisions of the Judicial Committee, Viz. and are concerned only with property belonging to the adoptive father's line or at any rate, property which stands on the same footing, and in such cases if once the adoption is validly made and the line is continued by the person having the power to do it, the adopted son gets back the property from the person who obtained it by inheritance or by survivorship or by a special rule of succession or even by reverter.
To this extent the retrospective operation of the adoption is recognised and given effect to. The Tights of the adopted son date back to the date of the death of the father. The limitations of this rule have already been adverted to and need not be repeated. The recognition of retrospective operation of the rights of the adopted son does not in any manner or to any extent offend the rule that inheritance cannot be kept in abeyance, and the property when once vested cannot be divested, for the reason that so long as a potential mother is in existence and the property of the adoptive father's line has devolved upon a person, such devolution is treated as provisional and not absolute. The adopted son when he emerges displaces the title, divests the property and gets it back.
20. What was argued on behalf of the appellant was that there should be an extension of this principle not only to the property of the adoptive father's line but also to the property belonging to a collateral line. Venkatabalu's line is a collateral line so far as the second defendant is concerned, and the property of Venkatabalu is not property of his adoptive father's line. If it i a case of property belonging to Nagalingam, his adoptive father, there will not be any difficulty in his getting back the property notwithstanding the fact that it might have devolved upon some other before his adoption. Had the second defendant been adopted to Nagalingam before the death of Narasammal in 1942 Venkatabalu's pro-perty would have vested in the second defendant on the death of Narasammal, to the exclusion of) Venkatabalu's sisters.
But there is no authority to support the contention that the vesting of me property in the sisters after the death of Narasammal in 1942 was only a provisional vesting and was not absolute. An exception to the rule that property once vested cannot be divested in such a case has not been recognised by judicial decisions.
21. It remains for us to consider the decisions cited at the bar as bearing upon this question. 'AIR 1943 PC 198 (O)' has already been ruled out as being no authority in support ol the above proposition.
22. It is unnecessary to deal with cases before -- 'Kally Prosonno Ghose v. Gocool Chunder Mitter', 2 Cal 295 (X). It is a case of adoption after the succession to a collateral had opened, and the question raised was whether the adopted son could recover the property of the collateral lino after the succession had devolved upon another, It was held that he was not entitled to succeed. The importance of this case, as it will be shown later, is that it was approved by the Privy Council.
'12 Cal 18 (V)', which affirmed a decision of the Calcutta High Court in -- 'Nilcomul Lahuri v. Jotendra Mohun Lahuri', 7 Cal 178 (Y) is the most important one.
In that case one Rammohan died leaving two brothers and a widow, Chandmoni. He left no son and therefore the widow succeeded to the estate of Rammohan. She died on 15-6-1867. shib-nath, one of the brothers of Rammohan died on 28-5-1861 in the lifetime of Chandmoni, having given a power to his widow to make an adoption. Kalimohan the other brother also died before Chandmoni leaving a son, Nilcomul. After the death of Chandmoni, Nilcomul succeeded to the estate of Rammohan and was in possession of the property. If the widow of Shibnath had adopted a son during the lifetime of Chandmoni, undoubtedly such adopted son would have shared the inheritance with Nilcomul.
It was alleged that as the result of Nileomul's fraud in setting up a forged will the widow of Shibnath was prevented from making an adoption during the lifetime of Chandmoni. After the death of Chandmoni the widow of Shibnath made an adoption and Jotendramohun Lahiri was the adopted son. A suit was instituted to recover half share of the estate of Rammohun from Nilcomul on the ground that the adopted son was entitled by virtue of the adoption to succeed as the nephew of Rammohan.
It was no doubt true in that case that the adopted boy was not even born when Chandmoni died in 1867, and therefore it was taken that in the course of nature he could not have become the heir to the estate of Rammohan even on the assumption that the adopted son's rights dated back. But the decision was not rested entirely upon that basis, and their Lordships laid down the general rule of law at p. 23 of the report thus: 'According to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral.'
A similar view was expressed by the High Court earlier in -- '7 Cal 178 (Y)', after referring to the decisions in -- '2 Cal 295 (X)'; -- '10 Moo Ind App 279 (B)1 & -- 'Sri Raghunada v. Sri Brozo Kishoro', 3 Ind App 154 (PC) (P). The observations at p. 189 in the judgment of Morris J. are pertinent:-
'The cases of Gourballab v. Juggarnath Pershad Mitter, Macnaghten's Cons, of Hindu law p. 153 & -- '3 Ind App 154 (PC) (F)', cannot be said to be in opposition to this rule. In the one case a grandson, and in the other case a son, took by adoption 'lineally' the estate of the grandfather and of the father, as against a nephew and a half brother. These cases are no authority for holding, that if succession to an estate 'collaterally had opened out before the adoption, either the nephew or the half brother could have been divested in favour of the subsequently adopted grandson or son.'
This makes It quite clear that it is only in the case of lineal succession that the rule enunciated that the adopted son divests the property which had vested in an heir, applies, and not to a collateral succession which opened before the adoption.
23. In -- 'Gadadhur Mullik v. Official Trustee, Bengal' , Sir George Rankin, the same learned Judge, who pronounced the opinion of the judicial Committee in , stated the principle at p. 54 thus: 'The principle of Hindu law which prevents an estate being in abeyance is an important doctrine of the law of inheritance & it has important consequences as regards adoption. The rule is that the right of succession vests immediately on the death of the owner. Apart from the case of a children ventre sa mere' or of an adopted child, the estate once vested in an heir will not be divested by the subsequent birth of a person who would have been a preferable heir had he been alive at the time of the death of the last owner -- 'Kalidas v. Krishna chandra Das', 2 Ben L R 103 (22); '2 Cal 295 (X)'; '7 Cal 178 (Y)'.
The three decisions therefore of the Calcutta High Court have been specifically approved by the Privy Council and must therefore be taken as laying down the law correctly.
24. Before , the Patna High Court considered the question in -- 'Chandra-choor Deo v. Bibhutibhushan Deva', : AIR1945Pat211 (Z3) and applying the principle in -- '12 Cal 18 (V)', it was held that there was no reason for dating back the rights of an adopted son by a widow to the date of death of the adoptive father in such a way as to entitle the adopted son to inherit the property of a collateral. The decisions in and were also considered.
25. 'AIR 1943 PC 193 (O)' was considered by a Pull Bench of the Bombay High Court in -- 'Jivaji Annaji v. Hanmat Ram a chandra', AIR 1950 Bom 860 (Z4). The question referred to the Full Bench was whether an adoption after tho death of a collateral allowed the adopted son to come in as heir of the collateral. It also related to watan property, and the adoption was made after the property had devolved upon the collateral.
It was contended that on the principle of relation back the adopted son was entitled to divest the estate which passed on to the collateral. But the Full Bench did not accept that contention, and applying the principle in -- '12 Cal 18 (V)' negatived the rights of the adopted son. The decision in was confined to the facts of that particular case by the Pull Bench, and the learned Judges saw no reason to extend the principle beyond the limits imposed by the Privy Council. See also the decision of a single Judge of the same Court, Chagla C. J. in -- 'Dattatraya Govind v. Vaman Ramakrishna' : AIR1950Bom362 to the same effect. The decision in -- 'Subramanian v. Muthiah Chettiar', AIR. 1948 Mad 187 (Z6) enables the adopted son to take also the adoptive mother's stridhana property on the theory of relation back, and it is not necessary to consider whether that view is correct or not.
26. The observations of Venkataramana Rao J, in -- 'Sankaralingani v. Veluchami Pillai' : AIR1942Mad33 also support the view that in the case of collateral succession the principle of dating back the rights of the adopted son. does not apply, and the learned Judge refers to the reasoning of Niyogi J. in -- 'Mt. Draupadi v. Vikram', AIR 1938 Nag 423 (Z8) where he pointed out that the decision in -- '12 Cal 18 (V)' dealt with the 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.
Venkataramana Rao J. observes at p. 343 of the report that it is unnecessary to consider whether the ground of distinction made by Niyogi J. is correct or not. But he however does not dispute the correctness of the principle Jaid down in -- '12 Cal 18 (V)', This decision it was, that was affirmed by the Full Bench in -- 'AIR 1943 Mad 43 (P)'.
27. The decisions therefore far from supporting, the contention so strenuously urged before us by the learned advocate for the appellant establish the soundness of the principle - in -- '12 Cal 18 (V)', which may be observed is not restricted to the facts of that case, but is a general rule applicable to all cases of adoption. Sir George Rankin who delivered the judgment in , enunciated the principle approving -- 2 Cal 295 (X), and -- '7 Cal 173 (Y)', in the decision in .
The ground of distinction therefore adverted to by the learned Judge in , that these decisions applied only to cases off inheritance and proceeded on the assumption that the adoptions therein were valid is correct.
28. Thus the rule in -- '12 Cal 18 (V)', which was left unaffected by the decision in , still governs succession to a collateral, where the succession opened before the adoption. The rule in , governs succession to property of a memeber of the line to which the adopted son belonged after the adoption, whether it was the adoptive father or his aurasa son that was the last maleholder in that line.
It should be easy to understand the basis of this distinction between succession to the property, which belonged to a member of the line to which the adopted son belonged, and succession to the property of a collateral distinct from that line, if the true basis of the sanction for the adoption as explained in , is kept in view. The purpose of the adoption is to ensure tho continuity of the line.
In the present case Nagalingam's widow was under no obligation to provide for the continuity of Venkatabalu's line. Her obligation with the corresponding right was to provide for the continuity of her husband's line which she discharged by adopting the second defendant. She could not possibly provide for the spiritual needs of Venkatabalu's line by adopting the second defendant to her husband Nagalingam. The legal fiction, that art adoption acts retrospectively leaving no hiatus should also have the same foundation as the adoption itself. The adoption was primarily to provide for the spiritual needs of the departed in the line of Nagalingam; succession to property. If any was ancillary to the discharge of the obligation. That itself should set the limits to which that flction could be extended. When there was no such obligation laid on Nagalingam's widow or on the adopted son to provide for the continuity of Ven-katabalu's line, the subsequent adoption of the second defendant could not cover the hiatus as far as as Venkatabalu's line was concerned.
29. It follows therefore that in the case of collateral succession the principle, that the adopted son's rights date back to the date of the death of the adoptive father and that he would be entitled to divest the title of persons who took the estate, would not apply so as to divest from the heir the estate of the collateral line in whom it had vested, as the adopted son was not in existence at the time the succession opened. The principle of provisional vesting is confined only to lineal succession, as has been pointed out in the foregoing discussion, and there is no reason or any justification in Hindu law to extend the principle beyond the limits recognised by the decisions, for to do so would be to introduce an uncertainty in the law of succession, for which there is no warrant. No authority of the Judicial Committee goes to the extent to which the learned counsel for the appellant contends.
30. We are therefore of the opinion that the view taken by the learned Subordinate Judge is correct, and that his decision must be upheld.
31. In the result the appeal is dismissed with costs.