Shrinivas Krishnarao Kango vs Narayan Devji Kango And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 164 of 1952

Decision Date: 23 March 1954

Coram: B.K. Mukherjea, Ghulam Hasan, T.L. Venkatara Ayyar

In the matter of Shrinivas Krishnarao Kango versus Narayan Devji Kango and others, the Supreme Court of India delivered its judgment on the twenty-third day of March, 1954. The petition was presented by Shrinivas Krishnarao Kango, with Narayan Devji Kango and additional respondents opposing the relief sought. The bench that heard the case comprised Justice Aiyyar, Justice T.L. Venkatarama, and Justice B.K. Mukherjea, with Justice Ghulam Hasan also participating in the proceedings. The decision was recorded as citation 1954 AIR 379 and subsequently reported in the Supreme Court Reports as 1955 SCR 1, with later references appearing in various law reports including R 1955 SC 206, F 1959 SC 906, A 1962 SC 59, RF 1970 SC 1730, RF 1972 SC 1401, R 1974 SC 878, and R 1991 SC 2176. The issues under consideration related to Hindu law concerning the existence and presumption of joint family property, the burden of proving self-acquisition, the status of property held by a family from time immemorial, the doctrine of presumption of ancestry, and the legal effects of adoption, particularly the doctrine of relation back as it applied to the rights of an adopted son.

The Court observed that established jurisprudence held that merely proving the existence of a Hindu joint family did not automatically give rise to a presumption that property possessed by any member of that family was held in joint ownership; rather, the party asserting joint ownership bore the burden of establishing that fact. However, the Court clarified that where it was demonstrated that the family possessed certain joint property that, by its nature and relative value, could have served as the nucleus from which the disputed property might have been acquired, the evidentiary burden shifted to the party alleging self-acquisition to affirmatively prove that the property in question had been acquired without the assistance of joint family assets. Applying this principle to the facts before it, the Court held that the alleged nucleus was insufficient to discharge the initial burden placed on the plaintiff to prove that the acquisitions were made with the aid of joint family property. The Court further explained that even if the burden subsequently shifted to the defendants to establish self-acquisition, such a burden could be discharged by showing that the ancestral lands remained intact and that any income derived therefrom had been employed for the maintenance of the family members.

The Court further noted that it was not unusual for a family to possess property for generations without a formal title deed, and that an acquisition by an individual member would ordinarily be evidenced by a deed. Consequently, when a property was found to have been in the possession of a family from time immemorial, it was reasonable to presume that the property was ancestral, thereby placing the burden on the party pleading self-acquisition to prove otherwise. Regarding adoption, the Court affirmed that when a Hindu widow adopts a son, the adopted son acquires all the rights of an aurasa son, and those rights relate back to the date of death of the adoptive father. The Court explained that the legal fiction of relation back positions the adopted son as if he were a posthumous son, allowing him to claim rights in the estate of the adoptive father as of the father’s death. This principle, however, was limited to claims against the estate of the adoptive father and did not extend to succession to properties of persons other than the adoptive father, where the rule that vested inheritance could not be divested would apply.

The Court explained that when a person is adopted, the law places that adopted person in the same position as a post-humous child of the adoptive father, thereby treating the adoption as if it had taken place at the time of the adoptive father’s death. The Court emphasized, however, that this rule of relation back operates only when the adopted son asserts a claim to the estate of his adoptive father. In situations where the succession relates to property belonging to a person other than the adoptive father, the applicable principle is not the relation-back rule but the doctrine that once inheritance has vested it cannot be taken away. The Court noted that a contrary decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (70 I.A. 232) was dissented from. The Court then listed a series of authorities that support this approach, namely Appalaswami v. Suryanarayanamurti (I.L.R. 1948 Mad. 440 at 447-448); Babubhai Girdharal v. Ujamlal Hargovandas (I.L.R. 1937 Bom. 708); Venkataraamaya v. Seshamma (I.L.R. 1937 Madras 1012); Vythianatha v. Varadaraja (I.L.R. 1938 Madras 696); Pratapsing Shivsing v. Agarsingii Raisingji (46 I.A. 97 at 107); Vellanki Venkata v. Venkatarama (4 I.A. 1); Verabhai v. Bhai Hiraba (30 I.A. 234); Chandra v. Goiarbai (I.L.R. 14 Bom. 463); Amarendra Mansingh v. Sanatan Singh (60 I.A. 242); Balu Sakharam v. Lehoo Sambhaji (I.L.R. 1937 Bom. 508); Neelangouda Limbangouda v. Ujjan Gowda (A.I.R. 1948 P.C. 165; 50 Bom. L.R. 682); Bhubaneswari Debi v. Nilkomul Lahiri (12 I.A. 137); Kally Prosonno Ghose v. Gocool Chunder Mitter (I.L.R. 2 Cal. 293); Nilkomul Lahuri v. Jotendro Mohan Lahuri (I.L.R. 7 Cal. 178); Raghunandha v. Brozo Kishoro (3 I.A. 154); Bachoo Hurkisondas v. Mankorebai (34 I.A. 107); Vijaysingji Chhatrasingji v. Shivasangji Bhimasangji (62 I.A. 161); and Kalidas v. Krishnachandra Das (2 B.L.R. 103 F.B.). The Court also mentioned that Tivaji Annaji v. Hanmant Ramchandra (I.L.R. 1950 Bombay 510) approved the principle.

The judgment proceeded to set out the details of the appeal. It was a civil appeal numbered 164 of 1952, brought before the Civil Appellate Jurisdiction. The appeal challenged a judgment and decree dated 12 August 1949 delivered by the High Court of Judicature at Bombay in appeals numbered 63 and 148 of 1947. Those judgments were themselves based on an original decree dated 31 July 1946 issued by the Court of the Civil Judge, Senior Division, Bijapur, in Special Civil Suit No. 28 of 1945. Counsel for the appellant were identified as J. B. Dadachanji and Naunit Lal, while counsel for the respondents were S. B. Jathar and Ratnaparkhi Anant Govind. The appeal was decided on 23 March 1954, and the judgment was delivered by Justice Venkatramana Ayyar. The Court noted that the appeal arose out of a suit for partition that the appellant had instituted in the Court of the Civil Judge, Senior Division, Bijapur. The Court then presented a genealogical table to illustrate the relationships among the parties. According to the table, Ramchandra was the ancestor, followed by Siddopant and Krishnarao (also known as Sadashiv) who died in 1897 and 1899 respectively and were married to Rukmini. Their descendants included Gundo, who married Lakshmibai, and Shrinivas Devji, who married Akkubai. Shrinivas Devji, an adopted son, was the plaintiff and died on 6 September 1935. The table also listed Narayan, Raghavendra, and Gundo as other family members. The narrative clarified that Siddopant and Krishnanarao were members of a joint undivided family. Krishnarao’s death in 1897 left his widow Rukmini, who was the sixth defendant in the suit. Siddopant’s death in 1899 left his son Gundo, who died in 1901, leaving his widow Lakshmibai as the fifth defendant.

On 16 December 1901 Lakshmibai adopted a child named Devji. Devji later died on 6 May 1935, leaving three sons who were designated as defendants numbers 1 to 3 and a widow named Akkubai who was identified as the fourth defendant. Several years later, on 26 April 1944, Rukminibai adopted the plaintiff in this case. Following that adoption, on 29 June 1944 the plaintiff instituted the present suit for partition, seeking a half share of the family properties. The court record showed that Siddopant and Krishnarao represented one branch of a Kulkarni family. That branch was entitled to the whole of survey number 138 and to a half share of survey numbers 133 and 136 situated in the village of Ukamnal, as well as a half share of survey numbers 163, 164 and 168 located in the village of Katakanhalli. The other branch of the family was represented by Swamirao, who was entitled to the whole of survey number 137 and to a half share of the same survey numbers 133 and 136 in Ukamnal and a half share of the survey numbers 163, 164 and 168 in Katakanhalli. Siddopant had purchased a house that was listed as Exhibit D-36 and had also acquired lands described in Exhibits D-61 and D-64, on which he constructed two substantial houses. His grandson Devji likewise built a house. All of these properties were detailed in Schedules A and B attached to the plaint; Schedule A comprised houses and house-sites while Schedule B listed lands. The plaintiff asserted that these properties were either ancestral in nature or had been acquired using joint-family funds, and therefore he claimed a half share in them as the representative of Krishnarao. Swamirao had died around 1903 without issue, and after his widow’s death shortly thereafter his properties passed to Devji, who was his nearest male relative; those properties were enumerated in Schedule C of the plaint. The plaintiff argued that, by virtue of his adoption, he became a preferential heir and was therefore entitled to divest Devji’s sons of those properties, and he sued to recover them. In an alternative plea, the plaintiff claimed a half share in the Schedule C properties on the basis that they had been blended with the admitted joint-family assets.

The defendants contested the plaintiff’s version on several grounds. They denied that the adoption of the plaintiff was true or valid. They further contended that the only ancestral property belonging to the family consisted of the Watan lands situated in the villages of Ukamnal and Katakanhalli, and that all purchases made by Siddopant were his personal acquisitions, not joint-family ones. The defendants maintained that the houses constructed by Siddopant were also built with his separate funds and therefore the plaintiff had no right to a share in them. Regarding the properties listed in Schedule C, the defendants argued that the plaintiff could not, on the ground of his adoption, divest Devji of those properties which had lawfully devolved upon Devji as heir, and they denied that those properties had ever been blended with the joint-family holdings. Both the trial court and the High Court had previously held that the plaintiff’s adoption was genuine and legally valid, and consequently that issue was no longer open for consideration. Those lower courts had also ruled that the purchases made by Siddopant and the houses erected by him were his own self-acquisitions.

The Court recorded that the purchases made by Siddopant and the houses built by him and by Devji were treated as self-acquisitions, the same classification applied to the house constructed by Devji. The trial Court concluded that the plaintiff was entitled to a half share in schedule numbers 639 and 640 listed in Schedule A because those parcels were held to be ancestral family property. The High Court, however, rejected that finding and held that the plaintiff had not established his entitlement to those parcels. Regarding the properties listed in Schedule C, the trial Court had decided, relying on the Privy Council decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil, that the appellant alone was entitled to those properties. The High Court, following a Full Bench decision of the same Court in Jivaji Annaji v. Hanmant Ramchandra, held that the Schedule C properties belonged exclusively to Devji and that the plaintiff could assert no right over them. Both courts rejected the plaintiff’s claim that these properties had been blended with the joint-family holdings. Consequently, the High Court issued a decree granting the plaintiff a partition of the admitted Watan lands but dismissed the remainder of the suit. The present appeal was filed against that decision.

The appellant’s primary contention was that the lower courts were wrong to hold that the properties purchased by Siddopant and the houses built by him and Devji were self-acquisitions. The appellant argued that the error lay first in placing the burden on the plaintiff to prove that joint-family funds had been used, and second in the improper exclusion of certain documents that the plaintiff had offered as evidence. On the issue of burden, the appellant submitted that the family undeniably possessed an income-producing nucleus consisting of the ancestral Watan lands covering about fifty-six acres. From that premise, the appellant argued, a presumption should arise that acquisitions made in Siddopant’s name were financed, at least in part, by joint-family resources. Accordingly, the onus should have shifted to the defendants, who asserted that the acquisitions were self-acquisitions, to demonstrate that no joint-family money had been employed. The appellant maintained that the defendants’ evidence fell far short of meeting that burden, leaving the presumption in favour of the plaintiff unrebutted. To evaluate the merit of this contention, the Court needed to review the findings of the lower courts concerning the extent of the ancestral properties, the income they generated, the amounts Siddopant invested in purchases and house constructions, and any other resources at his disposal. Concerning the alleged nucleus, the only property proven to belong to the joint family was the Watan land of approximately fifty-six acres, assessed at an annual value of Rs 49. No satisfactory evidence was presented regarding the income that these lands yielded during the relevant period. The witnesses Rukminibai (P.W. 6) and Akkubai (D.W. 1) gave conflicting testimony on the income question, and neither possessed first-hand knowledge, having entered the family by marriage long after the 1890s and being very young at the relevant time.

Both Rukminibai, the plaintiff-wise witness, and Akkubai, the defence-wise witness, could not possess detailed first-hand knowledge because each of them entered the family through marriage long after the 1890s and were then very young. The lessee who cultivated the portion of land belonging to Swamirao, a share-holder in the Watan lands equal to that of Siddopant and Krishnarao, testified that the net annual income from those lands amounted to thirty rupees. After reviewing the entire evidence, the trial court fixed the annual income of the Watan lands at one hundred and fifty rupees. On appeal, the learned judges of the High Court also held that the income from the lands could not have been considerable. They described the oral evidence of the plaintiff-wise and defence-wise witnesses on that point as worthless. The High Court observed that an assessment of less than one rupee per acre indicated that the lands were of poor quality. The Court further noted that both brothers had been compelled to go to the State of Hyderabad in order to earn their livelihood, and that Krishnarao had been forced to borrow small sums, namely twenty-six rupees and ten rupees, under Exhibits D-89 and D-90 on onerous terms. From these circumstances the Court concluded that the income derived from the ancestral lands could not have been sufficient even for the basic maintenance of the family.

Regarding the acquisitions, the record showed that on twenty-first May 1871 Siddopant purchased a house for two hundred rupees from his mother-in-law, as evidenced by Exhibit D-36. On eleventh May 1885 he bought the land identified as Survey No. 23 in Ukamnal village for four hundred and seventy-five rupees, demonstrated by Exhibit D-61. On twenty-third July 1890 he procured the lands bearing Survey Nos. 2025 and 2140 for two thousand four hundred rupees, as shown in Exhibit D-64; the suit concerned only Survey No. 2025. In addition to these purchases, Siddopant constructed two houses, one on Survey Nos. 639, 640 and 641 and another on Survey Nos. 634 and 635. Defence-wise witnesses 2 and 3 testified that the cost of these constructions lay between twenty-thousand and twenty-five-thousand rupees, and both the trial and appellate courts accepted this evidence. Although the appellant argued that the witnesses lacked direct knowledge of the constructions and that their testimony could not be exact, the Court held that, even allowing for some inaccuracy, the buildings were undeniably of substantial character. After the year 1901, Devji erected a house on Survey Nos. 642, 644 and 645 at an estimated cost ranging from two thousand to four thousand rupees. Consequently, approximately thirty thousand rupees had been invested in the purchase of the properties and the erection of the houses. The source of this money was explained by evidence that Siddopant had served as a Tahsildar in the State of Hyderabad for forty years before retiring on pension. Although the precise amount of his salary was not established, it could not have been negligible, and salary constituted the minimum of the earnings typically received by Tahsildars. The lower courts therefore concluded that, given the modest income from the ancestral lands and the magnitude of the acquisitions, the former could not be regarded as the foundation for the latter.

The Court observed that, given the magnitude of the later acquisitions, the earlier property could not be regarded as the foundation for those acquisitions, and, relying on the decision of the Privy Council in Appalaswami v. Suryanarayanamurti, it held that the plaintiff had failed to discharge the initial burden of establishing that the properties claimed to be divided were joint family properties. The Court then set out the legal principle articulated in that Privy Council case, stating that Hindu law on this point is well settled: proof of the existence of a joint family does not create a presumption that any property held by a family member is joint, and the burden rests on the person asserting that any particular item of property is joint to prove that fact. However, where it is shown that the family possessed some joint property which, by its nature and relative value, could have formed the nucleus from which the property in question was acquired, the burden shifts to the party alleging self-acquisition to prove affirmatively that the property was obtained without the assistance of joint family assets. The Court cited the authorities Babubhai Girdharlal v. Ujamlal Hargovandas, Venkataramayya v. Seshamma and Vythianatha v. Vdradaraja in support of this principle. The appellant argued that, in the precedent, the father had obtained, under the partition deed identified as Exhibit A, property valued at Rs 7,220 and had subsequently acquired property valued at Rs 55,000, and that the Privy Council observed that the acquisition by the appellant of the property under Exhibit A, which was joint family property between him and his sons, placed upon the appellant—the father—the burden of proving that the property he possessed at the time of the suit was self-acquired. Consequently, on proof that ancestral lands totaling 56 acres existed, the burden shifted to the defendants to establish that the later acquisitions were made without the aid of joint family funds. The Court considered whether the evidence presented by the plaintiff was sufficient to shift the burden, which originally rested on him, to demonstrate that an adequate nucleus existed from which the subsequent acquisitions could have been financed. It held that this question depended on the nature and extent of the alleged nucleus, and that the crucial factor to assess was the income generated by that nucleus. A building occupied by family members that yielded no income could not be treated as a nucleus capable of financing further acquisitions, even if its market value was considerable. In contrast, a modestly capitalised business that generated substantial income could plausibly serve as the foundation for later purchases. The Court emphasized that these issues were not abstract questions of law but factual determinations to be made on the basis of the evidence in the case. It further noted that, in Appalaswami v. Suryanarayanamurti, the nucleus valued at Rs 7,220 comprised a six-sixteenth share in a rice mill and other assets, illustrating how the character of the nucleus influences the allocation of evidential burden.

The Court observed that the value of the outstanding accounts was Rs. 3,500 and noted that the acquisitions which were the subject of the dispute had been made over a period of sixteen years, a period that included the cases reported in I.L.R. 1937 Bom. 708, I.L.R. 1937 Mad. 1012, I.L.R. 1038 Mad. 696 and I.L.R. 1948 Mad. 440. The Court held that, although it was conceivable that the joint-family income could have contributed to those acquisitions during that long span, the evidence placed before it showed that the income derived from the family lands was not even sufficient to maintain the members of the family. On that basis the Court affirmed the finding that the plaintiff had failed to discharge the initial burden which rested upon him to establish a sufficient nucleus of joint-family property from which the acquisitions could have been financed.

Even assuming, for the sake of argument, that the appellant’s contention was accepted—that proof of the existence of the Watan lands shifted the evidential burden onto the defendants to demonstrate that the acquisitions were made without any assistance from joint-family funds—the Court found that the facts established that the defendants had indeed discharged that burden. The Court referred to the decision in Appalaswami v. Suryanarayanamurti, reported in I.L.R. 1948 Mad. 440, where the Privy Council held that the father had discharged the burden of proving that the properties in question were his own. The Privy Council had observed that the evidence showed the property acquired under Exhibit A remained substantially intact, was kept separate, and that the modest income and the small proceeds from the sale of part of the property had been properly applied to family expenses. Moreover, there was no evidence that the nucleus of joint-family property had assisted the appellant in acquiring the properties listed in the schedule to the written statement.

In the present case, the Court noted that all of the ancestral Watan lands remained intact, were available for partition, and that the modest income they generated must have been used for the maintenance of the family members. Consequently, whether one adopts the view of the learned High Court judges that the plaintiff failed to discharge his burden of establishing a sufficient nucleus, or adopts the view that the defendants discharged their burden of proving the acquisitions were made without joint-family assistance, the ultimate result is the same. Accordingly, the appellant’s contention that the findings of the lower courts were based on a mistaken understanding of the burden of proof and were therefore erroneous was rejected.

The appellant further contended that certain documents tendered in evidence had been wrongly excluded by the trial court and that the finding of self-acquisition, which had been reached without reference to those documents, should not be accepted. Those documents were judgments in two maintenance suits filed by Rukminibai in the Sub-Court of Bijapur, bearing Civil Suit numbers 445 of 1903 and 177 of 1941, together with the appeals arising from those suits, Civil Appeal numbers 5 of 1905 and 39 of 1942, filed in the District Court of Bijapur. The appellant indicated that these documents had been produced before the trial court on 17 July 1946, along with twenty-eight other documents, at the time when the hearing was about to commence.

In this case, the trial judge had refused to admit a group of thirty-two documents that were produced on 17 July 1946, asserting that they were offered at a very late stage of the proceedings. On appeal, the High Court examined the plaintiff’s claim that the rejection was erroneous and observed that, even if the documents had been produced earlier, they could be admitted only if they fell within the relevance provisions of Sections 40 to 44 of the Indian Evidence Act. The High Court held that none of those sections applied and consequently affirmed the trial judge’s decision not to admit the documents. The appellant argued that the documents, which were judgments in two separate maintenance suits filed by Rukminibai, should be admissible under Section 13 of the Evidence Act because they contained assertions that the suit properties formed part of the joint family estate. The respondents contended that the earlier litigations concerned only the quantum of maintenance and did not raise any issue of title, rendering Section 13 inapplicable. The Court rejected this contention, observing that the amount of maintenance to be awarded depended on the extent of the joint family properties and that the maintenance prayer specifically sought to charge the family properties, which the court had granted. Accordingly, the Court concluded that the judgments were admissible under Section 13 as statements by Rukminibai that the disputed properties belonged to the joint family.

Nevertheless, a further obstacle to admitting the evidence arose from the manner in which the documents had been rejected. The respondents relied on the High Court’s observations and argued that the true ground for rejection was the untimely production of the documents. The order of the trial court effecting the rejection was not placed before the Court, but the record contained a petition filed by the plaintiff on 25 July 1946, after the closing of evidence and before arguments were heard, seeking admission of the thirty-two documents that had been dismissed on 17 July 1946. The petition expressly stated that the documents had been rejected on the ground of late production. The defendants, in their response to the petition, contended that admission at that stage would require giving the parties an opportunity to adduce further evidence and would necessitate recommencing the trial; accordingly, they opposed the prayer for admission. The trial court dismissed the petition, thereby confirming that the rejection was made pursuant to Order XIII, Rule 2. The Court found no justification for setting aside that order or reopening the entire case, and consequently held that the objection raised by the respondents must fail. Apart from the Watan lands that were admittedly ancestral, and apart from the purchases recorded under Exhibits D-36, D-61 and D-64 and the houses that had been held to be self-acquisitions, there were certain plots...

In the suit the plaintiff relied on certain properties listed in Schedule A and asserted a right to one-half of each of those sites, on which houses had been erected. The plaintiff maintained that these parcels were ancestral in nature. The trial court, observing that no title deed had been produced to demonstrate that any member of the family had acquired the sites by deed, concluded that the absence of such documentary proof meant that the lands must be regarded as ancestral. Accordingly, the trial court decreed that the plaintiff was entitled to a one-half share in survey numbers 639 and 640. On appeal, the High Court set aside that decree. The High Court held, in general terms, that the evidence concerning the house sites was uncertain as to the time of acquisition and the identity of the person who had acquired them. The High Court further observed that, because there was no evidence establishing that the parcels formed part of the joint-family estate, they should be treated as self-acquisitions rather than ancestral holdings. While respecting the appellate court’s role, the present Court could not accept that reasoning. It noted that it is not uncommon for a family to possess land for generations without a formal title deed, and that a bona-fide acquisition by an individual is ordinarily evidenced by a deed. Consequently, when a plot has been occupied by the family from time immemorial, it is reasonable to presume that the land is ancestral, and the onus shifts to the party claiming self-acquisition to prove a contrary origin.

The Court then examined the specific evidence relating to each of the plots for which no title deeds were produced. Survey numbers 634 and 635 constitute a single block on which a house has been built. The documents referred to as sanads D-45 and D-46 merely state that the grantee was in occupation of the two plots and that this occupation was confirmed. Both sanads also mention an earlier patta issued by the Government. Pattas numbered 52 to 55, which are also part of the record, show that the lands described therein had been acquired from the Government. Had the record established a clear correspondence between survey numbers 634 and 635 and the properties described in those pattas, the plaintiff’s claim of ancestry could have been defeated. Because that identification was never made, the presumption that the two plots are ancestral remains unrebutted, and the plaintiff’s claim to a half-share in them must be allowed. Survey numbers 639, 640 and 641 form another block on which a further house stands. No title deed exists for 639. The sanad for 640, Exhibit D-47, confirms the prior occupation of the grantee, a circumstance that supports an ancestral character. The sanad for 641, Exhibit D-48, is worded in the same manner as the earlier sanads D-45 and D-46, likewise indicating prior occupation. Accordingly, the plaintiff’s claim to a one-half interest in each of these three parcels is upheld. The Court next considered survey numbers 642, 644 and 645, on which the respondent Devji had constructed a house. The corresponding sanads, Exhibits D-49, D-50 and D-51, contain language similar to that found in sanads D-45 and D-46, leading to the same conclusion that these lands are part of the joint family property.

On the basis of the foregoing reasons the Court held that the lands in question remained part of the joint family estate. The next parcel, identified as Survey No. 622, carries a house, and Exhibit D-43 clearly shows that Devji acquired this plot at a Government auction in 1909; consequently the plaintiff has no claim to it. Survey No. 643 was the subject of oral testimony indicating that a family temple stands on the land, rendering it incapable of partition. Accordingly the Court concluded that the parcels bearing Survey Nos. 634 and 635, 639, 640 and 641, and 642, 644 and 645 must be treated as ancestral property, and that the plaintiff is entitled to one-half share in each of them. Because substantial structures have been erected on those plots, the appropriate relief was to award the plaintiff half of the market value of the land as of the suit’s filing date. The Court then turned to the plaintiff’s claim to possession of the C-Schedule properties, which the plaintiff based on his adoption as the preferential heir of Swamirao, arguing that this status entitled him to divest Devji and his successors of those lands. The appellant, relying on the Privy Council decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil, contended that an adopted son acquires all the rights of an aurasa son, that such rights relate back to the date of the adoptive father’s death, and that consequently his right to share in joint-family property and to inherit from collaterals should be calculated from that earlier date. The respondents, invoking Jivaji Annaji v. Hanmant Ramchandra, argued that the doctrine of relation back does not extend to properties inherited from a collateral. The issue presented was therefore of considerable importance, requiring determination of the correctness of the law laid down in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil. The Court explained that, as a matter of principle, an adopted son is deemed to step into the position of a posthumous son, with the adoption lawfully relating back to the death of the adoptive father by legal fiction. As observed by Justice Ameer Ali in Pratapsing Shivsing v. Agarsingji Raisingji, an adopted son functions as the continuator of his adoptive father’s line in the same manner as an aurasa son, and the adoption enjoys a retrospective effect for the purpose of maintaining an unbroken line of succession. Legal commentators West and Buhler similarly note that adoption, with respect to lineal continuity, creates no gap in the family lineage.

The Hindu legal tradition, as explained by Hindu lawyers, holds that a male line is not considered extinct and a Hindu individual is not deemed to have died without male issue until the death of his widow makes it impossible for the line to continue by adoption. On the basis of this principle, when a widow inherits her husband’s estate as his heir and subsequently adopts a son, the adopted son is recognized as a preferential heir who can divest the widow of the estate. The same principle applies when an unmarried son dies, his mother inherits his estate as his heir, and she then adopts a son to her husband; the adopted son is likewise entitled to divest the mother of the estate. This rule was illustrated in the decisions of Vellanki Venkata v. Venkatarama and Verabhai v. Bhai Hiraba. Difficulties arise when the adoption is made with respect to a deceased coparcener. Consider a joint Hindu family consisting of two brothers, A and B. If brother A dies leaving a widow and the survivorship rule transfers A’s properties to brother B, and thereafter the widow (W) adopts a boy X, the question is whether X can claim a one-half share in the estate that A was entitled to. The courts answered affirmatively, reasoning that the adoption is related back to the date of A’s death, thereby giving X the right to a half share. However, if before W adopts, brother B dies without a son leaving only his widow C, and the estate devolves upon C, the issue becomes whether W may subsequently adopt X so that X obtains any right in the estate now held by C. In Chandra v. Gojarabai, it was held that the power to adopt for the purpose of conferring a right on the adopted son exists only while the coparcenary to which the adoptive father belonged continues to exist. When the last coparcener dies and the property passes to his heir, the coparcenary ceases, and consequently W could not adopt in order to divest the estate that had vested in C, the heir of the last coparcener.

The Judicial Committee, in its pronouncements in Pratapsing Shivsing v. Agarsingji Raisingji and Amarendra Mansingh v. Sanatan Singh, stated that the validity of an adoption does not depend on whether the adopted son can divest an estate that has passed by inheritance. Following this view, a Full Bench of the Bombay High Court in Balu Sakharam v. Lahoo Sambhaji held that such an adoption would be valid, but the estate that had already devolved upon the heir could not be divested by the adopted son. In contrast, the Privy Council, in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil, dissented from the Bombay High Court’s position. The Privy Council ruled that the coparcenary must be deemed to continue so long as a widow of a coparcener remains alive and is capable of bringing a son into existence by adoption. Accordingly, while the estate remains in the hands of the heir, the existence of a surviving widow who can adopt preserves the character of the property as coparcenary property, allowing the adopted son to claim rights as if he had been present at the time of the adoptive father’s death.

In this case, the Court observed that when a widow adopts a son, the adopted son's rights are treated as if he had already been born at the moment his adoptive father died, and consequently his status as a coparcener would prevail over any claim made by a person asserting himself as heir of the last coparcener. The Court explained that the estate held by such an heir was deemed to possess the qualities of coparcenary property for as long as a widow remained alive who was capable of making an adoption. This principle had been reaffirmed in Neelangouda Limbangouda v. Ujjan Gouda(5). The Court clarified that the scope of the doctrine of relation back is confined to situations where the adopted son’s claim relates to the estate of his adoptive father. That estate may be a fixed and determinable one, where the father is the sole and absolute owner of the properties, or it may be a fluctuating interest, such as that of a member of a joint Hindu family whose share can increase by death or decrease by birth. In either scenario, the Court said, the adopted son is deemed entitled to the interest of his adoptive father as it stood on the date of the father’s death. The principal issue for determination, according to the Court, was whether this doctrine of relation back could be extended when the adopted son’s claim relates not to his adoptive father's estate but to that of a collateral. The Court noted that the theory underlying relation back requires an uninterrupted continuity of the adoptive father’s line, a continuity that, by its very nature, cannot be applied to collateral relatives. The Court quoted the Oxford Dictionary definition of “collateral” as “descended from the same stock but not in the same line.” It further stated that the rationale for insisting on continuity in the line does not justify extending the doctrine to collaterals, and that no authority supports such an extension until the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil(1) is considered. In that decision, the Court applied the relation back theory to properties inherited from collaterals, holding that inheritance can never be in abeyance; once property devolves upon the nearest legal heir, it cannot be divested thereafter. The Court cited Mulla’s Hindu Law, 11th Edition, pages 20-21, which declares that on a Hindu’s death the nearest heir immediately acquires the deceased’s property, the right of succession vests instantly, and it cannot remain in suspense awaiting the birth of a preferential heir who was not yet conceived at the time of death.

In this case the Court referred to the principle that when a Hindu dies the right of succession immediately passes to his nearest heir and that such right cannot be taken away except by the birth of a child who was already conceived at the time of death or by a specific adoption of a son. The Court quoted Mulla’s Hindu Law, which states that the estate of a Hindu that has vested in his nearest heir at the time of death cannot be divested except in the circumstances just described. The Court then examined the earlier decision in Bhubaneswari Debi v. Nilkomul Lahiri. In that case Chandmoni, the widow of Rammohun, died on 15 June 1867 and the estate passed to Nilkomul, the nephew of Rammohun, as reversioner. Later Bhubaneswari Debi, the widow of Sibnath (who was Rammohun’s brother), adopted a boy named Jotindra and the boy filed a suit claiming half of the estate. The claim was based on the argument that the adoption should relate back to the date of Sibnath’s death on 28 May 1861, which would make Jotindra entitled to an equal share with Nilkomul. Sir Barnes Peacock rejected this argument. He explained that settled case law held that an adoption made after the death of a collateral heir did not allow the adopted son to become an heir of that collateral. He noted that although the adopted boy had not been alive at the time of Chandmoni’s death, that fact would not alter the legal position if the rule of relation back were applicable. The Court cited the Privy Council case Kally Prosonno Ghose v. Gocool Chunder Mitter, which was relied upon in the High Court in Nilkomul Lahuri v. Jotendro Mohan Lahuri, where it was held that an adopted son could not claim the estate of his adoptive father’s paternal uncle that had vested before his adoption. Golapchandra Sarkar Sastri, in his Tagore Law Lectures on the Law of Adoption, reiterated that adoption could not relate back to the death of the adoptive father to give the adopted son a claim over a collateral’s property that had already passed to an heir. Consequently, the law was clear that when succession involved property of a person other than the adoptive father, the rule of relation back did not apply and inheritance, once vested, could not be divested. Before reviewing the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil, the Court found it necessary to revisit the earlier Privy Council pronouncements that formed the basis of that later decision.

In the dispute identified as Sing Shivsing v. Agarsinqit Raisingji (1), the Court examined a jivai grant concerning the village of Piperia. The grant had been made by the Ruler of Gamph to a junior member of the family on the condition that, if there were no male descendants, the village would revert to the thakur. The last holder of the grant, Kaliansing, died without issue in October 1903, leaving his widow, Bai Devla, as the surviving spouse. On 12 March 1904, Bai Devla adopted a son named Pratapsing Shivsing. The thakur subsequently instituted suit for possession of the village, contending firstly that the adopted son was not a descendant within the meaning of the grant, and secondly that the adoption was invalid because it would deprive the thakur of possession of the village, which had vested in him at the time of Kaliansing’s death in October 1903. Addressing the first contention, the Judicial Committee observed that, under Hindu law, an adopted son is treated as a descendant to the same extent as a natural son, often described as an “aurasa” son. Concerning the second contention, the Committee applied the principles articulated in Raghunandha v. Brozo Kishoro (2) and Bachoo Hurkisondas Mankorebai (3), which concern the divestment of joint-family properties that had already vested in other persons. The Committee further held that, given the interval between Kaliansing’s death and the adoption of Pratapsing, the adopted son could be regarded as a posthumous son. It is important to note that the thakur’s claim was not based on succession as an heir of Kaliansing but on the reversionary clause stipulated in the original grant; consequently, no issue of relation-back of title in respect of a collateral estate arose in this case.

In a separate matter, Amarendra Mansingh v. Sanalan Singh (1) presented a question relating to an impartible zamindari known as Dompara Rai in Orissa. The last proprietor of the zamindari, Raja Bibhudendra, died unmarried on 10 December 1922. Because a family custom excluded females from succeeding to the Raj, a collateral heir named Banamalai succeeded to the estate. Shortly thereafter, on 18 December 1922, Indumati, the mother of the deceased Raja, adopted Amarendra on behalf of her husband, Brajendra. The central issue, cited in the judgment as (1) 46 I.A. 97; (3) 34 I.A. 107; (2) 3 I.A. 154; (4) 60 I.A. 242, was whether the adoption of Amarendra could divest Banamalai of the estate. The Privy Council held that the validity of an adoption does not depend on whether the adoption would divest an estate, but rather on whether the power to adopt had terminated by the existence of a son who possessed full legal capacity to continue the line. Applying this principle, the Judicial Committee concluded that the adoption was valid and that Amarendra succeeded to the estate as the preferential heir. The Court emphasized that, in this scenario, the adopted son did not claim succession to a collateral estate, and there was no question regarding the application of the relation-back theory to support such a claim. The estate in dispute was that of the adoptive father, Brajendra, and, if the adoption were deemed valid, it would relate back to the date of Brajendra’s death, thereby enabling Amarendra to divest Banamalai of the property.

The Court examined the issue of whether the adoption was at all valid, held that if it were valid it would relate back to the date of Brajendra’s death and would consequently enable Amarendra to divest Banamalai of the estate. The precise question for determination, however, was whether the fact that Bibhudendra had lived for about twenty years caused the power of his mother to adopt to her husband to cease. The Court noted that, but for the special custom that excluded women from inheriting, Indumati would have succeeded Bibhudendra in the role of mother; an adoption made by her would have divested her of the estate and vested it in Amarendra, and the case would then have been governed by the decisions in Vellanki Venkata v. Venkatarama(1) and Verabhai v. Bhai Hiraba(2). The only distinction between those authorities and the present matter, namely Amarendra Mansingh v. Sanatan Singh(3), was that on Bibhudendra’s death the heir was not Indumati but Banamalai. The Court observed that the decision in Amarendra Mansingh v. Sanatan Singh could at most be taken as authority for the principle that when an adoption is made to A, the adopted son is entitled to recover the estate of A not only when it has vested in A’s widow who makes the adoption, but also when it has vested in any other heir of A. The decision does not, however, support the contention that the adopted son is entitled to recover the estate of B which had already vested in B’s heir prior to the adoption to A. The Court further referred to Vijaysingji Chhatrasingji v. Shipsangji Bhimsangji(4) as a case similar to the present one. In that case the property involved was an impartible estate reported in (1) 4 I.A.T., (3) 60 I.A. 242, (2) 30 I.A. 234 and (4) 62 I.A. 161. Chandrasangji, one of the estate’s holders, died and was succeeded by his son Chhatrasingji. Chhatrasingji was subsequently given away in adoption; thereafter his brother Bhimsangji succeeded to the estate. The widow of Chhatrasingji then made an adoption, and the question arose whether the adopted son could divest the estate in the hands of Bhimsangji. The Court held that he could, emphasizing that, as in Amarendra Mansingh v. Sanatan Singh, there was no issue of collateral succession and the point for decision was essentially the same. The Court then turned to the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil(2). In that case Bhikappa died in 1905 leaving a surviving widow, Gangabai, and an undivided son, Keshav. In 1908 Narayan, the divided brother of Bhikappa, died and Keshav succeeded to Narayan’s properties as heir. Keshav died unmarried in 1917; because the properties were Watan lands they devolved on a collateral, Shankar. In 1930 Gangabai adopted Anant, who sued Shankar to recover possession of the properties as the adopted son of Bhikappa. The High Court held that, since the joint family had ceased to exist in 1917 when Keshav died and the properties had devolved on Shankar as his heir, the adoption, although valid, could not divest Shankar of those properties. The Privy Council, however, held that the coparcenary must be taken…

The Court held that a coparcenary persists as long as a widow of the deceased coparcener remains alive, and that Gangabai’s adoption of Anant caused the family estate to vest in him, despite the fact that the estate had earlier descended to Shankar as the heir of Keshav. The decision, insofar as it concerned joint-family properties, required no further comment. Once it is established that the coparcenary subsists while a widow of a coparcener is alive, the logical consequence is that Gangabai’s adoption of Anant was valid and that it transferred to him the joint-family properties that had previously devolved upon Shankar. In addition, there were properties that Keshav had inherited from Narayan, which also passed to Shankar as his heir, as noted in the citations (1) 60 I-A, 242 and (2) 701 I-A 232. Referring to these, the Privy Council observed: “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 acquired.” On the basis of this reasoning, the Court held that Anant was also entitled to the properties that Keshav had inherited from Narayan. The Court expressed the view that the case of Anant Bhikappa Patil (Minor) v. Shankar Ram Chandra Patil should be understood to extend the doctrine of relation back not only to the joint-family estate but also to properties that had devolved by inheritance from a collateral. Otherwise, it would be impossible to justify the conclusion that the personal properties of Keshav, which vested in Shankar in 1917, could later revert to Anant even though his adoption occurred only in 1930. The Court then considered how this decision could be reconciled with the principle articulated in Bhubaneswari Debi v. Nilkomul Lahiri, which states that an adoption made after the death of a collateral does not divest the inheritance that had vested prior to that date. The Court noted that this principle was not intended to be departed from, as shown by Sir George Raiikin’s observations: “Neither the present case nor Amarendra’s case brings into question the rule of law considered in Bhubaneswari Debi v. Nilkomul Lahiri (of Kalidas Das v. Krishnachandra Das)… Their Lordships say nothing as to these decisions which appear to apply only to cases of inheritance.” The Court added that the discussion in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil does not shed much light on the matter. Considerable emphasis was placed on the fact that a coparcener has only a fluctuating interest in the joint-family properties—an interest that may increase by death and decrease by birth—and that such a qualified interest must be subject to divestiture by the introduction of a new coparcener through adoption.

The Court explained that a coparcener’s interest necessarily includes the liability to be dispossessed when a new coparcener is introduced by adoption, and that this principle cannot be extended to property that does not form part of a coparcenary, such as a collateral estate that passes by inheritance. It then referred to the Board’s decisions in Amarendra Mansingh v. Sanatan Singh (1) and Vijaysingji Chhatrasingji v. Shivsangji Bhimsangji (2), observing that the impartible estates considered in those cases were treated as separate property rather than as joint-family property. The Court noted that this observation does not resolve the issue, because even assuming the estates were separate, the matters did not involve collateral succession; the dispute concerned the estate of the adoptive father and was governed by the principles already laid down in Vellanki Venkata v. Venkatarama (3) and Verabhai v. Bhai Hiraba (4). The Court then reiterated the earlier conclusion that no distinction may be drawn between property inherited from a father and property inherited from other sources. In doing so, it warned that ignoring the doctrine of relation back, which is grounded in the continuity of line and has been applied only to the estate of an adoptive father and not to collateral estates, would be erroneous. The Court subsequently turned to the case of Jivaji Annaji v. Hanmant Ram Chandra (5) to examine the scope of the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (6). In that case, Keshav and Annappa, who were members of a joint family, effected a partition; thereafter Annappa died in 1901 leaving a widow, Tungabai. Keshav later died leaving a son, Vishnu, who died in 1918 without male issue, causing the Watan lands to devolve on a collateral heir, Hanmant. In 1922 Tungabai adopted Jivaji, and the question arose whether Jivaji could divest the properties that had vested in Hanmant as the preferential heir of Vishnu. The Court held that he could not. It was noted that Annappa, to whom the adoption was made, had at the time of his death become separated from his brother, so the principles applicable to adoption by the widow of a deceased coparcener were inapplicable. Moreover, the adopted son’s claim was not based on any right to joint-family property into which he had been adopted, but rather on a claim to the collateral estate to which he sought to succeed as preferential heir, seeking to divest Hanmant of the properties vested in him in 1918 on the strength of the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra.

The parties argued that the principle applied in the case of Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil, where an adopted son was allowed to divest the personal property of Keshav that had passed to Shankar as Keshav’s preferential heir, should likewise permit Jivaji to divest the property that had passed to Hanmant as the preferential heir of Vishnu. The learned judges openly acknowledged that this argument found support in the earlier decision of Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (1). However, they were also persuaded by the pronouncement of law in Bhubaneswari Debi v. Nilkomul Lahiri (2), which reaffirmed the rule concerning the rights of an adopted son with respect to the estate of a collateral. Relying on that precedent, the judges concluded that the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (1) was not intended to overturn the established rule that an adopted son could not divest property inherited from a collateral before the date of adoption.

The judges attempted to distinguish the earlier case by observing that Keshav had acquired both ancestral property and property inherited from Narayan, and that the law permitted a relation-back of Anant’s rights concerning the ancestral portion. They suggested that, by analogy, a similar relation-back should apply to the separate, inherited portion. The court found this distinction difficult to accept. Under the law, if the rights of an adopted son differ depending on whether the property belongs to the estate of his adoptive father or to property inherited from a collateral, the fact that both categories of property are held by the same individual should not alter the nature of those rights. The situation is comparable to a coparcener who also holds self-acquired assets, where the survivorship rule that governs joint-family property does not affect the inheritance of separate property.

The learned judges frankly admitted that they were perplexed by the reasoning in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (1). Because that decision was binding authority for Indian courts, they felt compelled to follow it and to seek a distinguishing factor. In contrast, this Court is not bound by such a limitation and may examine the issue afresh. The Court observed that the ruling in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (1) extended the rights of an adopted son beyond the previously understood law by permitting him to divest a collateral’s estate that had descended by inheritance before the adoption took place. This approach contradicts the well-established principle in Indian jurisprudence that an inheritance cannot remain in suspense and that the relation-back of an adopted son’s right applies only to the estate of his adoptive father. Moreover, the Court noted that the rule articulated in that decision produces highly inconvenient results, especially in situations where a widow adopts a son.

In this case, the Court observed that when an adoption is made by a person who is either a coparcener or a separated member of a joint family, the adopted son’s right to claim property as of the adoptive father’s death, based on the doctrine of relation back, is limited by any alienations that occurred before the adoption if those alienations were made for purposes binding on the estate. Accordingly, persons who acquire interests from limited owners—whether they are widows or coparceners—receive adequate protection because the earlier transfers remain effective against the adopted son. However, the Court noted that no comparable protection exists for property that the adoptee inherits from a collateral relative. If the adopted son were allowed, by relation back, to divest such collateral property, the intermediate holder would become an owner whose title could be defeated by the adoption, and the adoption would consequently extinguish that title together with the titles of all persons asserting claims through him. The Court explained that the subsequent transferees from that intermediate holder would then lack any safeguard, as there would be no basis to sustain the alienations on grounds of necessity or benefit.

The Court further pointed out that when adoption occurs long after the succession to the collateral estate has already commenced—forty-one years after, in the present matter—the collateral property may have changed hands several times. In such circumstances, the titles of later purchasers could be disturbed many years after the original transfers, creating an inconvenient and destabilising effect. The Court expressed reluctance to endorse a legal view that would produce such results. It held that the appellant’s claim to divest a vested estate rests on a legal fiction, and that legal fictions should not be extended when they lead to unjust outcomes. Consequently, the Court concluded that the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (1), insofar as it pertains to property inherited from collaterals, is unsound, and that an adopted son cannot rely on the doctrine of relation back to lay claim to such collateral property.

Accordingly, the Court affirmed the High Court’s decision concerning the C-Schedule properties. It rejected the appellant’s argument that the defendants had blended C-Schedule properties with the admitted ancestral properties to give them the character of joint-family assets. The Court reiterated that the burden of proving such blending lies heavily on the plaintiff, who must demonstrate that the defendants dealt with the properties in a manner showing an intention to abandon their separate claims. The lower courts had found this fact in favour of the defendants, and the present Court found no basis to depart from those findings. As a result, the Court modified the decree of the lower Court by granting the plaintiff a decree for half the value of the plots numbered 634, 635, 639, 640, 641, 642, 644 and 645 as assessed on the date of the suit. Subject to this modification, the decree of the lower Court was confirmed, and the appeal was dismissed.

Having examined the material placed before it and taking into account the circumstances that were highlighted in the earlier portions of the judgment, the Court directed that each of the parties to the appeal shall be responsible for paying its own costs incurred in connection with this appeal. In other words, no party was ordered to indemnify the other for legal expenses or to bear a cost liability in favour of the opposite side. Following this determination on costs, the Court proceeded to dispose of the appeal itself. It concluded that the relief sought by the appellant could not be granted and therefore the appeal was dismissed in its entirety. The final decision, including the order on costs and the dismissal of the appeal, has been recorded in the official law reports and can be located in volume seventy of the Indian Appeals at page number two hundred thirty-two. The judgment makes clear that the cost order does not constitute a finding of liability on the part of either litigant, but simply allocates the expense of the appellate proceedings to the respective parties. Consequently, the appellate record remains as it stands, and the decision has become part of the binding jurisprudence and will guide future cases involving similar issues.