Krishnamurthi Vasudeorao Deshpande and Anr. v. Dhruwaraj

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 499 of 1957

Decision Date: 5 May 1961

Coram: Raghubar Dayal

In the matter titled Krishnamurthi Vasudeorao Deshpande … vs Dhruwaraj, decided on 5 May 1961, the Supreme Court of India delivered its judgment under the authorship of Justice Raghubar Dayal. The petition was presented by Krishnamurthi Vasudeorao Deshpande and another party, and the respondent was Dhruwaraj. The judgment was recorded on 5 May 1961, and the bench consisted of Justice Raghubar Dayal, with Subbarao K. listed among the judges. The decision is reported in 1962 AIR 59 and 1962 SCR (2) 813, and it is cited in subsequent reports such as RF 1970 SC1730 (3) and E&R 1974 SC 878 (15). The case concerned the application of Hindu law relating to joint families, adoption, and the rights acquired by an adoptive son in relation to the date of death of the adoptive father, as well as the nature of property succession among collaterals succeeding to a co‑parcener, particularly whether such inheritance is absolute or subject to defeasance.

The headnote of the judgment explained that the respondent, Dhruwaraj, had been adopted by a widow approximately sixty‑three years after the death of her husband. That husband had died before his own father, referred to as “N”, leaving behind the widow and two daughters, identified as K. and S. Upon the death of N, the daughters K. and S. inherited the father's estate in equal shares. When K. later died, her son succeeded to her share, and after the son's death, his two sons—who are the present appellants—succeeded to the same share. The respondent instituted a suit seeking recovery of immovable properties, asserting that those properties had originally belonged to, and were held under the Vahiwat of, the joint family of his adoptive father and adoptive grandfather. The appellants denied the respondent’s claim, arguing that K., their grandmother, had become the absolute owner of the properties, thereby creating a new line of descent, and that the appellants had inherited the properties from their father, to whom K. had alienated them.

The High Court examined the claim and held that the alleged alienation by K. of her share to her son did not bind the respondent. Moreover, the High Court concluded that the respondent could divest the appellants of the properties that were said to belong to the respondent’s adoptive grandfather. The central question before the Supreme Court was whether the respondent, by virtue of his adoption, could divest the appellants of the properties of his adoptive father and adoptive grandfather.

The Supreme Court held that when a person owns property that carries a defeasible title, the act of adoption extinguishes not only that title but also the titles of all persons claiming under that owner. The Court explained that a collateral heir who succeeds to the sole surviving co‑parcener inherits the property absolutely, yet the title remains subject to defeasance. Accordingly, the right in the property devolves upon the heir’s successors, who would hold the property absolutely but still subject to defeasance, because no superior title could be inherited. The character of the property does not change from a co‑parcenary interest to a self‑acquired interest as long as there remains the possibility that a widow of the family of the last surviving co‑parcener could defeat the absolute title by adding a member to the co‑parcenary through the adoption of a son to her deceased husband. The Court applied the principle articulated in Shrinivas Krishnarao Kango v. Narayan Devji Kango and Ors. (1955) 1 S.C.R. 1, disapproved the view expressed in Ramchandra Hanmant Kulkarni v. Balaji Datto Kulkarni, I.L.R. 1955 Bom. 837, and discussed the observations in Amarendra Mansingh v. Sanatan Singh, 60 I A. 242, as well as Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil, 70 I.A. 232.

70 I.A. 232 was discussed in the judgment of a civil appellate case. The matter concerned Civil Appeal No. 499 of 1957, which was an appeal from the judgment and decree dated 17 August 1954 of the Bombay High Court in Appeal No. 236 of 1950. Counsel for the appellants consisted of Purushottam Trikumdas, N. S. Anukhinda and S. K. Sastri, while K. R. Bengeri and A. G. Ratnaparkhi appeared for the respondent. The judgment was delivered on 5 May 1961 by Justice Raghu Bar Dayal. The appeal was presented on a certificate under Article 133 of the Constitution and raised the question whether the respondent, Dhruvraj, by virtue of his adoption, divested the appellants of the properties that had belonged to his adoptive father and adoptive grandfather.

The factual background began with Bandegouda, the father of the respondent, who died in 1882, predeceasing his own father Narasappa Gouda, who later died in 1892. Bandegouda left his widow Tungabai, who adopted Dhruvraj as her son on 31 July 1945. At the death of Narasappa Gouda, two daughters, Krishnabai and Shyamabai alias Chamavva, succeeded to their father's property in equal shares. The share of Shyamabai is not the subject of the present discussion because the respondent’s suit concerning that share had been dismissed. Krishnabai died on 21 October 1933; her son Vasappa succeeded her but died shortly thereafter on 20 February 1934, leaving two sons, Krishnamurti and Subbaji, who are the appellants in this case. The respondent instituted a suit for recovery of the immovable property, asserting that the property had originally belonged to the joint family of Narasappa Gouda and Bandegouda and was held under the vahiwat of that family. The suit also sought a declaration that the plaintiff was entitled to the “Patilki” rights in the village of Hombal as a close relative of Narasappa Gouda. The appellants denied the respondent’s claim, contending that Krishnabai had been the absolute owner of the property, thereby creating a fresh line of descent, and that they had inherited the property from their father Vasappa, to whom Krishnabai had allegedly alienated the share in 1930. The High Court held that the alleged alienation by Krishnabai in 1930 amounted only to an unregistered gift of immovable property and therefore was not binding on the respondent. It further held that the respondent could divest the appellants of the property belonging to his adoptive grandfather and affirmed the decree of the trial court regarding the property that had passed into the possession of Krishnabai on the death of her father. The Supreme Court considered the rights of an adopted son with respect to the property of his adoptive father and collateral relations, referring to the decision in Shrinivas Krishnarao Kango v. Narayan Deviji Kango and others. From that decision the Court summarised that an adopted son is entitled to take in defeasance the rights acquired prior to his adoption, on the ground that, in the eyes of law, his adoption is deemed to relate back to the date of death of his adoptive father, placing him in the position of a posthumous son.

The Court explained that, by a legal fiction, the adoption of a son is treated as if it had occurred on the date of the death of his adoptive father, thereby placing the adopted son in the position of a post‑humous child. Consequently, as a preferential heir, an adopted son displaces his own mother from the estate of his adoptive father and also displaces his adoptive mother from the portion of the estate that she would inherit as the mother of a son who died after the death of her husband. The Court further observed that a coparcenary persists as long as a widow of a coparcener exists who is capable of creating a son through adoption; if such a widow adopts, the adopted son acquires rights as though he had been alive at the time of his adoptive father’s death, and his title as coparcener prevails over any claim made by a person asserting heirship to the last coparcener. The principle of relation back, the Court noted, applies only when the adopted son’s claim relates to the estate of his adoptive father. That estate may be a definite, ascertainable one, for example when the adoptive father is the sole absolute owner of the property, or it may be a fluctuating interest, as in the case of a member of a joint Hindu family where the coparceners’ shares can increase by death or decrease by birth. In either situation the adopted son is deemed entitled to the adoptive father’s interest as of the date of the father’s death. However, the Court emphasized that this relation‑back principle cannot be extended to claims concerning the estate of a collateral relative. In matters of collateral inheritance, the controlling rule is that inheritance never remains in suspense; once the estate passes to the nearest legal heir, it cannot thereafter be divested. Accordingly, where succession concerns property of someone other than an adoptive father, the applicable rule is not relation back but the rule that vested inheritance cannot be taken away. Moreover, the Court held that the estate remains the estate of the adoptive father regardless of who holds it, whether the holder is an absolute owner or a limited owner. Anyone who inherits the adoptive father’s estate is his heir, even if the inheritance passes through several successive heirs, each being the heir of the preceding owner. The Court then referred to the case of Amarendra Mansingh v. Sanatan Singh, which involved an indivisible zamindari. The last holder of that zamindari was Raja Bibhudendra, who died unmarried on 10 December 1922. Because the family custom excluded females from succeeding to the Raj, a collateral heir, Banamalia, succeeded to the estate. Subsequently, on 18 December 1922, Indumati, the mother of Bibhudendra, adopted Amarendra to her husband.

In the case of Amarendra Mansingh v. Sanatan Singh, the Court had to decide whether Amarendra could deprive Banamalia of the estate after his adoption by Indumati, the mother of the deceased Raja Bibhudendra. The Judicial Committee had answered the question affirmatively, holding that the estate claimed by Amarendra was that of his adoptive father, Brajendra, and that a valid adoption would cause the estate to relate back to the date of Brajendra’s death, thereby enabling Amarendra to divest Banamalia. The present Court noted that the last holder of the estate was not Brajendra, the adoptive father, but Bibhudendra, who could be described as the adoptive brother. Nevertheless, the estate in Bibhudendra’s hands was described as the estate of Brajendra, the adoptive father. The Court explained that the earlier decision could be taken only as authority for the principle that, when an adoption is made to a person A, the adopted son is entitled to recover the estate of A not merely when the estate has vested in A’s widow who makes the adoption, but also when it has vested in any other heir of A. The decision did not support the contention that the adopted son could recover the estate of B, which had vested in B’s heir prior to the adoption to A.

The Court then turned to the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil. It observed that when a widow adopts a son on behalf of either a coparcener or a separated member, the adopted son’s right to claim properties as of the date of the adoptive father’s death, based on the doctrine of relation back, was subject to a limitation: any alienations made before the adoption were binding on the adopted son if those alienations were for purposes that bound the estate. Consequently, transferees from limited owners, whether they were widows or coparceners in a joint family, enjoyed substantial protection. The Court emphasized that no comparable safeguard existed for property inherited from a collateral because, if the adopted son were entitled, on the basis of relation back, to divest that property, the intermediate holder would be regarded as an owner with a title defeasible on adoption, and the adoption would extinguish that title and the titles of all persons claiming under him. The alienees from such a holder would have no protection, as there could be no ground to support the alienations on the basis of necessity or benefit. From these observations, the Court concluded that where A owned property with a title defeasible on adoption, not only A’s title but also the titles of all persons claiming under A would be extinguished upon adoption. Applying this principle to the present dispute, the Court found that Krishnabai owned the property in full after the death of her father Narasappagouda, according to the Hindu law applicable to the area where the suit property lay, but her title was nonetheless defeasible.

In the matter before the Court, the widow of Bandegouda, Tungabai, adopted a son for her husband. After the death of Vasappa, the property that had originally belonged to Krishnabai passed to his sons, and consequently the appellants asserted a claim based on Krishnabai’s title. The Court held that such a claim became defeasible because of Tungabai’s adoption of a son. The Court further observed that the absolute inheritance by Krishnabai of her father’s property did not alter the principle that her title would be defeated upon Tungabai’s adoption of a son. The nature of the property, whether it was coparcenary property or self‑acquired property of Krishnabai, remained unchanged as long as Tungabai, the widow, continued to exist in the family and retained the capacity to adopt a son who would become a coparcener. The Court distinguished two different scenarios: one in which an adopted son seeks to divest the heir of a collateral who died before the adoption, thereby claiming property inherited from that collateral; and another in which the adopted son claims property that originally belonged to the adoptive father but, by circumstance, had passed through the hands of a collateral before the adoption. In the first scenario, the claim relates to the collateral’s property, whereas in the second scenario the claim relates to the adoptive father’s property, even though it had temporarily been held by a collateral. To illustrate the principle, the Court referred to the Full Bench decision of the Bombay High Court in Ramchandra Hammant Kulkarni v. Balaji Datto Kulkarni (4). That case overruled the earlier judgment in the present matter. The Full Bench was asked to answer the question: “If, on the death of a sole surviving coparcener, his property devolves upon his heir by inheritance and thereafter vests in his own heir, would a subsequent adoption within the family of the sole surviving coparcener divest the property from that heir?” The factual backdrop of the Bombay case was recounted. Ramchandra and Balaji were brothers; Ramchandra died on 10 October 1903 and his widow Tarabai died two days later. Their son Hammant had predeceased Ramchandra, leaving behind his widow Sitabai. The Watan property of Ramchandra therefore passed to Balaji after Tarabai’s death. Upon Balaji’s death, the property devolved on his son Datto, who died in 1916, after which it passed to Datto’s son Balaji. Sitabai, the widow of Hammant, adopted Ramchandra, the plaintiff, on 21 January 1945. Following the adoption, Ramchandra instituted suit against Balaji, son of Datto, claiming the property that originally belonged to his adoptive family, on the basis that his adoption related back to the date of his adoptive father’s death. Chief Justice Chagla, delivering the judgment of that Full Bench, answered the formulated question by stating that a subsequent adoption within the family of the sole surviving coparcener would not divest the property from the heir, assuming the circumstances presented were analogous.

Ramchandra, who had been adopted as the grandfather, was the only surviving coparcener of his own branch of the family, and at his death the family property passed first to his son Datto and thereafter to Datto’s son Balaji. While examining the principle involved, the learned Chief Justice referred to the authority of the Privy Council in Anant v. Shankar, observing that Datto had inherited the property subject to a defeasance that would become operative only if the potential mother, Sitabai, adopted a son into Ramchandra’s family. The Chief Justice then explained that Balaji had succeeded to the estate of his father Datto, and that the plaintiff in the present suit was in fact asserting a claim not to the property of Ramchandra but to the property of Datto, which Balaji had inherited as Datto’s son. Consequently, the plaintiff’s claim would amount to displacing Datto as the preferential heir of his own grandfather, a proposition that the Chief Justice found difficult to apply when the property was already in the hands of Datto’s heir. He held that it could not be said that, with respect to the estate of Datto, the plaintiff was a preferential heir ahead of Balaji; rather, the plaintiff sought to displace Balaji and to contend that he, the plaintiff, was the heir of Datto. Accordingly, the Chief Justice expressed the view that, if the principle were accepted—that Datto had held the property he inherited from Ramchandra absolutely as a full owner—then it was impossible to accept the plaintiff’s contention that Balaji’s inheritance was subject to any limitation. The defeasance existed only while Datto was alive; on Datto’s death he left his property, which was his absolute property, to his heir, and there was no reason in principle for the defeasance provision to continue after Balaji had inherited as Datto’s heir. The Court noted, however, that this conclusion conflicted with earlier observations in Shrinivas Krishnaswaroop Kango’s Case (1955), wherein it had been recognised that a collateral heir succeeding the sole surviving coparcener inherits the property absolutely but subject to defeasance, and that the right in the property devolves on his own heir who must also take the property absolutely, yet still subject to defeasance, because the possibility of a widow adding a member to the coparcenary by adopting a son to her deceased husband remained. The Court observed that the earlier reasoning in Shrinivas Krishnaswaroop Kango’s Case had been overlooked. On that basis, the Court was of the opinion that the appeal must fail, and accordingly dismissed it with costs of the appeal.

The Court examined the submissions and the record before it and issued an order that the appeal be dismissed. This decision was reported in volume 1 of the Supreme Court Reports at page 1. The order terminated the proceedings, denying the relief sought by the appellant and concluding the case without any further directions.