SIR JOHN BEAUMONT:
This is an appeal from a judgment and decree of the High Court of Judicature at Bombay dated 23rd March 1943, allowing the respondents' appeal against a judgment and, decree of the First Class Subordinate Judge of Dharwar dated 27th July 1940.
2. The suit out of which this appeal arises was filed on 10th January 1936, by the appellant as plaintiff in the Court of the First Class Subordinate Judge of Dharwar wherein be claimed as the adopted son of one Krishnaji to be entitled to a half share of the coparcenary property described in the schedules to the plaint.
3. The facts giving rise to the suit are these Shrinivas and his two sons Ramachandra, who was defendant 2 in the suit and is respondent 1 in this appeal, and Krishnaji were members of an undivided joint Hindu family. Ramchandra had two sons who are respondents 2 and 3, and a daughter who is respondent 4. Krishnaji died on 6th January 1930, leaving a widow, Radhabai, but no issue. On 16th December 1932, Radhabai adopted the appellant to her deceased husband Krishnaji, and on the same day Shrinivas and Ramchandra entered into a partition deed (Ex. 150) partitioning the coparcenary property between them in the shares shown in the deed. Thereafter, Shrinivas by a deed (Ex. 151) made a gift of items 15 and 16 in Sch. A to the Plaint, which formed part of his share on the partition, to his grandsons, respondents 2 and 3, and by a deed (Ex. 153) he made a gift of item 14 in the said Sch. A, which was other part of his share on the partition, to his-grand-daughter, respondent 4. By his will dated 22nd August 1933 (Ex. 152), Shrinivas gave all his residuary estate to his grandsons, respondents 2 and 3. Shrinivas died on 13th December 1934.
4. At the trial the learned First Class Sub-ordinate Judge held that the adoption of the appellant, which was challenged, in fact took place and was valid; that the partition took place after the adoption and did not affect the rights of the plaintiff. By his decree, the learned Judge declared the plaintiff to be entitled to a half share of the coparcenary property other than watan property, with certain exceptions which have not been challenged before the Board. He told, however, that the properties specified in Sch. C to the Plaint and items 1-4 and 7 in Sch. B were watan properties which could not be dealt with in the suit and he left open the title to such properties.
5. In appeal the High Court at Bombay held that the partition took place before the adoption, and that at the date of the adoption there was no coparcenary in existence. Accordingly the Court held that the adoption of the plaintiff, though valid, did not divest the former coparcenary properties from those in whom they bad vested on the partition, a view which the Judges were bound to take on the authority of the decision of a Full Bench of the said High Court in Balu Sakharam v. Lahoo, ILR (1937) Born, 508 : (AIR (24) 1937 Bom. 279 P. p.). However, since the decision of the High Court it has been held by this Board in the case of Anant Bhikappa v. Shankar Ramchandra, 70 IA 232 : (AIR (30) 1943 PC 196) that the view taken of the law in Balu Sakharam's case, (ILR (1937) Bom. 508: AIR (24) 1937 Bom. 279 FB) was erroneous, and on the basis of the Board's decision it is clear that the appellant on his adoption became entitled to share in the coparcenary property notwithstanding that the coparcenary bad come to an end before the date of his adoption.
6. Mr. Parikh for the respondents did not dispute that in view of the decision of the Board this appeal substantially would have to succeed, but he challenged certain aspects of the decree of the Subordinate Judge if that decree was to be restored. In particular he claimed that the partition of December 1932, though ineffective as a partition by metes and bounds since it ignored the share of the appellant as a son of Krishnaji, nevertheless operated to disrupt the joint family, that thereafter Shrinivas was entitled to an undivided share of the family property, and that he effectively disposed of this undivided share by his will in favour of respondents 2 and 3, and that accordingly the appellant is entitled to a third share and not to a half share in the coparcenary property. Mr. Dingle Foot for the appellant contended that this point was never raised in India but was relied on for the first time in argument before the Board. This contention their Lordships think is not well-founded. In the written statement of respondents 2 and 3 the gift to them made by the will of Shrinivas is mentioned and it is pleaded that the movable and immovable property comprised therein belonged to those respondents and that the plaintiff's suit in respect of those properties is not maintainable. In the judgment of the Subordinate Judge the point is not mentioned, and probably bad not been argued, but the memorandum of appeal to the High Court after alleging that the lower Court was wrong in finding that the partition took place after the plaintiff's adoption concluded : "At any rate, the plaintiff is not entitled to more than 1/3rd share in the suit properties." In their Lordships' opinion had the High Court taken the view that the plaintiff was entitled to a share in the coparcenary property the question whether he was entitled to one-half or one-third would have been open to the respondents. It is regrettable that this point was not specifically raised in the respondents' case, but the case does state the facts on which this claim rests, namely, the partition and the subsequent gift by the will of Shrinivas, and the final reason for rejecting the appeal, namely, that "the appellant is not entitled to any share at all in the properties described in Schs. A, B, C and D to the plaint" is wide enough to cover the claim that he is entitled to a smaller share than the one given to him. In their Lordships' view this question is open to the respondents, but there is not sufficient material on the record to enable their Lordships to decide it. It would be necessary to determine whether the joint family was disrupted, and if so at what date; whether after such disruption Shrinivas was competent to dispose by will of his undivided third share in the joint family property ; and if so whether he effectively did so. None of these matters are discussed by the Courts in India, and on some of them further evidence may be required. Their Lordships think, therefore, that the appeal will have to be referred back to the High Court, which will be free to exercise the powers of calling fresh evidence or remanding an issue to the lower Court conferred by the Code of Civil Procedure.
7. The respondents raised other objections to the judgment of the Subordinate Judge based on the contention that items 14,15 and 16 in Sch. a to the Plaint and the structures on items 1, 4 and 7 in Sch. B were the self-acquired property of Shrinivas. These questions present no great difficulty, but as the case will have to be remitted to the High Court their Lordships think it better to leave to that Court the determination of the whole matter of the plaintiff's share in the suit property.
8. Their Lordships will, therefore, humbly advise His Majesty that this appeal be
allowed and that the decree of the High Court at Bombay dated 23rd March 1943, be set aside arid that the appeal be remitted to the High Court to determine to what share in the suit property the appellant is entitled on the basis that by his adoption he became entitled to the share of his adoptive father Krishnaji in the coparcenary property. The costs of the proceedings in India will be in the discretion of the High Court. The respondents must pay the costs of this appeal.