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TMI Blog1954 (3) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... perties. 3. Siddopant and Krishnarao represented one branch of a Kulkarni family and were entitled for their share of the Watan lands, to the whole of S. No. 138 and a half share in S. Nos. 133 and 136 in the village of Ukamnal and a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. The other branch was represented by Swamirao, who was entitled for his half share of the Watan lands, to the whole of S. No. 137 and to a half share in S. Nos. 133 and 136 in the village of Ukamnal and to a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. Siddopant purchased a house under Exhibit D-36 and lands under Exhibits D-61 and D-64, and constructed two substantial houses. His grandson, Devji, also built a house. All these properties are set out in Schedules A and B to the plaint, A schedule consisting of houses and house-sites and B Schedule of lands. It is the plaintiff's case that these properties were either ancestral, or were acquired with the aid of joint family funds. He accordingly claims a half share in them as representing Krishnarao. 4. Swamirao died about 1903 issueless, and on the death of his widow shortly thereafter, his prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent appeal is preferred against this decision. 7. The first, contention that has been urged on behalf of the appellant is that the finding of the Courts below that the properties purchased by Siddopant and the houses constructed by him and Devji were self-acquisitions, is erroneous, firstly because the burden was wrongly cast on the plaintiff of proving that they were made with the aid of joint family funds, and secondly because certain documents which had been tendered in evidence by the plaintiff had been wrongly rejected as inadmissible. On the first question, the argument of the appellant is that as the family admittedly possessed income-producing nucleus in the ancestral Watan lands of the extent of 56 acres, it must be presumed that the acquisitions standing in the name of Siddopant were made with the aid of joint family funds, that the burden lay on the defendants who claimed that they were self-acquisitions to establish that they were made without the aid of joint family funds, that the evidence adduced by them fell far short of it, and that the presumption in favour of the plaintiff stood unrebutted. For deciding whether this contention is well-founded, it is necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost between Rs. 20,000 and Rs. 25,000, and both the Courts have accepted this evidence. It was argued for the appellant that these witnesses had no first-hand knowledge of the constructions, and that their evidence could not be accepted as accurate. But making all allowances for inexactitude, there cannot be any doubt that the buildings are of a substantial character. After 1901, Devji built a house on S. Nos. 642, 644 and 645 at a cost estimated between Rs. 2,000 and 4,000. Thus, sums amounting to about Rs. 30,000 had been invested in the acquisition of these properties and construction of the houses. Where did this money come from ? The evidence is that Siddopant was a Tahsildar in the State of Hyderabad, and was in service for a period of 40 years before he retired on pension. Though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. The lower Courts came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former could not be held to be the foundation for the latter, and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. In Appalaswami v. Suryanarayanamurti I.L.R. 1948 Mad. 440, the nucleus of Rs. 7,220 included 6/16th share in a rice mill and outstanding of the value of Rs. 3,500, and as the acquisitions in question were made during a period of 16 years it was possible that the joint family income might have contributed therefore. But in the present case, the finding of the Courts is that the income from the lands was not sufficient even for the maintenance of the members, and on that they were right in holding that the plaintiff had not discharged the initial burden which lay on him. But even if we are to accept the contention of the appellant that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold on the facts that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n evidence only if they could be shown to be relevant under any of the sections 40 to 44 of the Indian Evidence Act. None of these sections applied in this case. The trial Judge was, therefore, right in not admitting them in evidence. 14. The argument of the appellant is that these judgments are admissible under section 13 of the Evidence Act as instances in which there was an assertion that the suit properties belonged to the joint family. For the respondents, it is contended that the dispute between the parties in those litigations was only about the quantum of maintenance to be awarded, that no question of title to the properties was directly involved, and that section 13 was inapplicable. We are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties, and an issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of opinion that the judgments are admissible under section 13 of the Evidence Act as assertions of Rukminibai that the properties now in dispute belonged to the joint family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property is found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it is ancestral and to throw the burden on the party pleading self-acquisition to establish it. 17. It is necessary in this view to examine the evidence relating to the several plots for which no title deed have been produced. S. Nos. 634 and 635 form one block, on which one of the houses has been constructed. The sanads relating to them are Exhibits D-45 and D-46, and they merely recite that the grantee was in occupation of the plots, and that was confirmed. There is reference in them to a previous patta granted by the Government. Exhibits 52 to 55 are pattas showing that the properties comprised therein had been acquired from the Government. If the identity of S. Nos. 634 and 635 with the properties comprised in these documents had been established, the plea that they are not ancestral would have been made out. But that has not been done, and the presumption in favour of their being ancestral property stands unrebutted. The claim of the plaintiff to a half share therein must be allowed. S. Nos. 639, 640 and 641 form one block, on which there is another ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion as to the correctness of the law as laid down in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil 70 I.A. 232. 19. Considering the question on principle, the ground on which an adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption is that in the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son. As observed by Ameer Ali, J. in Pratapsing Shivsing v. Agarsingji Raisingji 46 I.A. 97 , Again it is to be remembered that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as West and Buhler point out in their learned treatise on Hindu Law, the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible. 20. It is on this principle that when a widow succe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... widow of a coparcener capable of bringing a son into existence by adoption, and if she made an adoption, the rights of the adopted son would be the same as if he had been in existence at the time when his adoptive father died, and that his title as coparcener would prevail as against the title of any person claiming as heir of the last coparcener. In substance, the estate in the hands of such heir was treated as impressed with the character of coparcenary property so long as there was a widow alive who could make an adoption. This principle was re-affirmed in Neelangouda Limbangouda v. Ujjain Gouda. 21. Thus far, the scope of the principle of relation back is clear. It applies only when the claim made by the adopted son relates to the estate of his adoptive father. This estate may be definite and ascertained as when he is the sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family, in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. The poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nilkomul. That was the argument put forward in support of his claim. (Vide page 139). In negativing this contention, Sir Barnes Peacock observed :- According to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral. 23. It is true that reference is also made to the fact that the boy adopted was not actually in existence on the date of the death of Chandmoni; but that, however, would make no difference in the legal position, if the principle of relation back was applicable. One of the cases which the Privy Council had in mind was Kally Prosonno Ghose v. Gocool Chunder Mitter I.L.R. 2 Cal. 295, which was relied on in the High Court. Vide Nilkomul Lahuri v. Jotendro Mohan Lahuri I.L.R. 7 Cal. 178. There, it was held that an adopted son could not claim the estate of his adoptive father's paternal uncle, which had devolved by inheritance prior to his adoption. In 1888 Golapchandra Sarkar Sastri observed in his Tagore Law Lectures on the Law of Adoption : As regards collateral succession opening before adoption, it has been held that an adoption cannot relate bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder, Raja Bibhudendra, died on 10th December, 1922, unmarried, and by reason of a family custom which excluded females from succeeding to the Raj, a collateral Banamalai succeeded to it. On 18th December, 1922, Indumati, the mother of Bibhudendra, adopted Amarendra to her husband, Brajendra. The question was whether by his adoption Amarendra could divest Banamalai of the estate. It was held by the Privy Council that the validity of an adoption did not depend on whether an estate could be divested or not, and that the point to be considered was whether the power to adopt had come to an end by there having come into existence a son, who had attained the full legal capacity to continue the line. Applying these principles, the Judicial Committee decided that the adoption was valid, and that Amarendra took the estate as the preferential heir. It will be seen that in this case no claim of the adopted son to succeed to a collateral was involved, and no question arose as to how far the theory of relation back could be invoked in support of such a claim. The estate claimed was that of his adoptive father, Brajendra, and if the adoption was at all valid, it related back to the date of Bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In 1930 Gangabai adopted Anant, and he sued Shankar to recover possession of the properties as the adopted son of Bhikappa. The High Court had held that as the joint family ceased to exist in 1917 when Keshav died, and as the properties had devolved on Shankar as his heir, the adoption, though valid, could not divest him of those properties. The Privy Council held that the coparcenary must be taken to continue so long as there was alive a widow of the deceased coparcener, and that Gangabai's adoption had the effect of vesting the family estate in Anant, even though it had descended on Shankar as the heir of Keshav. The decision so far as it relates to joint family properties calls for no comment. When once it is held that the coparcenary subsists so long as there is a widow of a coparcener alive, the conclusion must follow that the adoption of Anant by Gangabai was valid and operated to vest in him the joint family properties which had devolved on Shankar. Then, there were the properties which Keshav had inherited from Narayan, which had also devolved on Shankar as his heir. With reference to them, the Privy Council observed : If the effect of an adoption by the mother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanatan Singh 60 I.A. 242 and Vijaysingji Chhatrasingji v. Shivsangji Bhimsangji 62 I.A. 161, and it is observed that the impartible estates which were concerned therein were treated as separate property and not as joint family property, a conclusion which does not settle the question, because even on the footing that the estates were separate properties, no question of collateral succession was involved in them, the claim under litigation being in respect of the estate of the adoptive father and covered by the principle already established in Vellanki Venkata v. Venkatarama 4 I.A. 1 and Verabhai v. Bhai Hiraba 30 I.A. 234. Then follows the conclusion already quoted that no distinction can be drawn between properties which come from the father and properties which come from others. This is to ignore the principle that the doctrine of relation back based on the notion of continuity of line can apply and had been applied, only to the estate of the adoptive father and not of collaterals. 30. We may now turn to Jivaji Annaji v. Hanmant Ramchandra AIR 1950 Bom 360 wherein the scope of the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil 70 I.A. 232 came up for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in respect of the ancestral properties, there should likewise be a relation back in respect of the separate properties. But it is difficult to follow this distinction. If under the law the rights of an adopted son differ according as they relate to the estate of his adoptive father or to property inherited from collaterals, the fact that both classes of properties are held by the same person can make no difference in the quality of those rights. The position will be analogous to that of a coparcener who has also self-acquisitions, in which case the devolution by survivorship of joint family properties does not affect the devolution by inheritance of the separate properties. 31. The fact is, as frankly conceded by the learned Judges, they were puzzled by the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil 70 I.A. 232, and as it was an authority binding on the Indian Courts, they could not refuse to follow it, and were obliged to discover a distinction. This Court, however, is not hampered by any such limitation, and is free to consider the question on its own merits. In deciding that an adopted son is entitled to divest the estate of a collateral, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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