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TMI Blog1959 (1) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... Pursuant to this authority, Ramayamma adopt-ed one Srinivasa Sarma who is one of the parties to the litigation and the respondent in all these appeals, on 22-8-1948 and also executed a deed of adoption evidencing it. She also settled on him the properties which she acquired under the will of her husband as also her stridhana properties. More than a year thereafter, Papayamma took one Parthasarathi Rao who is the appellant in all these appeals in adoption. Several suits were filed in the court of the District Munsiff, Masulipatam, by Ramayamma and her adopted son Srinivasa Sarma against Parthasarathi Rao and some others for the recovery of possession of various items of property and for profits. All the suits ended in decrees in favour of the plaintiffs which were confirmed on appeal. 3. The aggrieved defendant Parthasarathi Rao has carried these matters in second appeal which open up some questions of importance. Though in the trial court, the validity of the appellant's adoption was challenged on several grounds, it is not brought into question in these appeals. We may, therefore, proceed on the basis that Parthasarathi Rao was validly adopted by Papayamma. 4. Now the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to have its way, it may be difficult to resist the force of this argument. But it should not be forgotten that the whole theory is based upon fiction, namely, either the life of the deceased coparcener was prolonged in his widow till the date of adoption or the adoption took place just before the death of the adoptive father. In the view of the learned authors West and Buhler a widow's life is a prolongation of her husband's and her adoption to her deceased husband is simply a deferred act of the husband himself. 7. The question is: is it necessary to carry this fiction even into cases where the sole surviving coparcener has alienated the whole family property? In the words of Bose J., in Udhao Sambh v. Bhaskar Jaikrishna AIR 1946 Nag 203 at p. 205: There is no logical basis for the rules until fictions are introduced and then fiction is added to fiction. The matter starts in fiction. The adopted son is no son according to natural or biological laws. He is deemed to be a son, deemed, to be born into the family, deemed to be blood of its blood, by a series of fictions. These fictions compel further fictions because of their fundamental conflict with natural laws, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry that certain intermediate holders should give way to the adopted son's superior claims as that of a natural born son of his adoptive father.... But within these limits, he can so to speak insist on the property devolving in a direct line as far as possible from father to son or from grand-father to grand-son and it is in this connection and this alone that the doctrine of relation back and the cases I have quoted in the first category of inheritance are to be regarded. What authority there is with regard to alienations by a male holder, are strongly, and it seems to me conclusively, against the contention argued by the appellant. The legal position was summed up thus by Mr. Justice Venkata Subba Rao:-- The theory is, that a Hindu cannot be said to have died without male issue, until the death of the widow, makes adoption impossible; in other words, so long as the widow is alive, there is the possibility of an heir coming into existence. (West and Buhler, 4th edition, 890-- ILR 43 Bom 778: (AIR 1918 PC 192)). Supposing this doctrine is carried to its logical results, what follows:-- The mere fact that the widow of a deceased member exists, hinders the mate owner from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age which seeks to bring out this distinction: It may be that if a Hindu widow lies by for a considerable time and makes no adoption and the property comes into the possession of some one who would take it in the absence of a son, natural or adopted, and such person were to create rights in such property within his competence whilst in possession, in such a case totally different considerations would arise. But there is nothing of the kind to modify the true application of the Hindu Law. 13. Another judgment of the Privy Council, which throws considerable light on this enquiry is AIR 1927 P. C. 139: ILR 50 Mad 508. Their Lord-snips remarked at p. 525 (of ILR Mad): (at pp. 144-145 of AIR) thus:-- When a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made By a widow who has been given power to adopt. For the will speaks as at the death of the testator and the property is carried away before the adoption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful alienations that might have taken place prior to his adoption. There is another reported case in the same volume, Vithal Bhai v. Shiva Bhai which reviewed the case law on the subject. 20. The view of the Mysore High Court as contained in Puttappa v. Basappa AIR 1953 Mys 113 accords with them. A similar question came up for consideration before the Madras High Court in Lalithakumari v. Rajah of Vizianagaram, . This Bench reiterated the principle of ILR 52 Mad 389: (AIR 1929 Mad 296). This aspect of the matter was considered at some length by Venkatarama Ayyar J., in the judgment. The learned Judge, after noticing several of the decisions on the point, including ILR 52 Mad 398: (AIR 1929 Mad 296) said:-- The result of the adoption is to constitute the adopted son as heir to the adoptive father as on the date of his death and that legal fiction enables him to divest all estates which had vested by inheritance in persons who would have not been entitled, to inherit if he had in fact been in existence on that date. This rule has no .... application to estates which had not devolved by inheritance. Even the adopting widow would not be divested of her separate and stridhanam p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a collateral, which had devolved by inheritance prior to his adoption AIR 1943 PC 190 went far beyond what had been previously understood to be the law. It is not in consonance with the principle well established in Indian jurisprudence that an inheritance could not be in abeyance, and that the relation back of the right of an adopted son is only 'quoad' the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient, when an adoption is made by a widow of either a coparcener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding on him if they were for purposes binding on the estate. Thus transferees from limited owners, whether they be widows or co-parceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coparcener. 26. Alternatively, it was argued that since the adoption of the respondent was invalid by reason of his adoptive mother's authority to adopt having become extinct, owing to her grand-son having left a widow as his heir, who could continue the line by adoption, the gift in his favour had failed. We do not think this contention could prevail. The question of the invalidity of the respondent's adoption on the ground of there being a grand-son in the family who left a widow as his heir was not raised in the courts below. The adoption of the respondent was attacked as being untrue and on grounds other than those now urged as would be seen from the judgment of the Courts below. All that was stated there was that Ramayamma had no power to adopt but it does not say for what reasons she did not posses? that power. There was no issue on this aspect of the matter. Nor was this ground taken even before the lower appellate Court. It is for that reason that an application for permission to raise additional grounds was filed for the first time in 1957 i.e., just three years after the filing of these appeals. We do not think there is any justification to allow that pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation given by the Privy Council in Fanindra Deb Raikat v. Rajeswar Dass, 12 Ind App 72 at p. 89. If a man makes a bequest to his wife A. B. believing the person named to be his lawful wife, and he has not been imposed upon by her, and falsely led to believe that he could lawfully many her, and it afterwards appears that the marriage has not lawful, it may be that the legality of the marriage is not essential to the validity of the gift. Whether the marriage was lawful or not may be considered to make no difference in the intension of the testator. This is very apt in the context of an adoption which ultimately proves to be invalid. Considering the contents of the document and the surrounding circumstances, there can be little doubt that the intention of the donor was to confer all her proper-ties on the donee as a named individual irrespective of whether the adoption was legal or not. It should he remembered that both at the time when the will was executed and when the properties were settled, there were strained feelings between the parties. Notices passed between them and there was positive hostility between them. As we have already stated, the son-in-law set up one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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