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TMI Blog1979 (11) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... Kailasa Krishna, some time in the year 1895 and executed a registered will on August 5, 1907, by which he bequeathed to his wife, Kailasa Narasamma, his movable and immovable properties. Under the same will, he also authorised her to adopt a boy for him in the event of his dying without a male issue. The said Venkanna died issueless some time in the year 1930. Later, his wife entered into an ante-adoption agreement with one Tondepatu Venkata Ramayya, minor, aged I 7 years, through his natural father, Tondepatu Adeyya on February 15, 1943, under which the said Adeyya had agreed to give his son, Venkataramaiah, in adoption to Narasamma on the condition that she would be in sole possession and enjoyment of all the rents and profits of all the malgis and houses built on the land comprised in lease No. 1357 dated January 29, 1942, during her lifetime and after her death, the said properties should absolutely belong to the adopted son, subject to any debts that had to be discharged by her. In pursuance of the said agreement, a deed of adoption was executed by the lady on February 17, 1943, under which it was clearly stated that she would be in possession and enjoyment of all the immovabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also certain passages at pages 561 and 563 of the Principles of Hindu Law by Mulla (4th Edn.). The Tribunal referred to the decision of the Privy Council in extenso and also referred to the decision of the Supreme Court in Krishnamurthi v. Dhruvaraj, AIR 1962 SC 59. The Tribunal observed that though Sri K. Venkanna was the sole surviving coparcener till his death, still the coparcenery continued to subsist so long as the widow, Smt. K. Narasamma, was there with the power to adopt a son; and subsequent to the death of Sri K. Venkanna, the adoption was made and thereby the will, so far as it dealt with the coparcenery property, was inoperative and the property passed to the adopted son by survivorship. When Sri K. Venkanna died in the year 1930 Smt. K. Narasamma could not have acquired any interest in the property left by her husband since the Hindu Women's Rights to Property Act (Act XVI 11 of 1937) came into force only on 14th April, 1937. The adoption made on February 17, 1943, takes effect by the doctrine of relation back to the date of death of Sri K. Venkanna. This means that the adopted son for all purposes of law would be deemed to have been in existence as the son of Sri K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eath, Venkataramaiah, the adopted son, came into the ownership of all the properties in the possession of the deceased, Narasamma, with absolute rights. While the Asst. Controller took the view that the ante-adoption agreement was valid in law in view of the decision of the Privy Council in Krishnamurthi v. Krishnamurthi, AIR 1927 PC 139, and hence the deceased, Narasamma, had limited life interest in the entire extent of the properties and consequently it was a case of cesser of interest assessable under s. 7 of the E. D. Act and accordingly he estimated the full value of the property at Rs. 1,85,000 and included the same in the principal value of the estate of the deceased, the Appellate Controller held in the appeal preferred by the accountable person that the ante-adoption agreement was invalid and illegal on the ground that the interest of the adopted son relates back to the date of death of his adoptive father, that the HUF continues to exist along with the adoptive mother and the adopted son and also on the ground that the deceased lady got the undivided interest of her husband on his death under the Hindu Women's Rights to Property Act of 1937, and by virtue of s. 14 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r husband on his death and the question of her acquiring absolute rights under s. 14 of the Hindu Succession Act does not arise. Both the Appellate Controller as well as the Tribunal differed from the Asst. Controller on the question as to the effect of the ante-adoption agreement with reference to the impugned properties. Both the Appellate Controller and the Tribunal took the view that the adoption of Venkataramaiah takes effect by the doctrine of relation back to the date of death of Venkanna and the adopted son should, therefore, be deemed to have been in existence by the date of death of Venkanna and consequently he should be deemed to have succeeded to the properties of Venkanna by the right of survivorship and as such Narasamma had no interest whatsoever in the impugned properties. The Asst. Controller relying upon the decision of the Privy Council in Krishnamurthi v. Krishnamurthi, AIR 1927 PC 139 held that under the ante-adoption agreement, the adopted son became the absolute owner of the properties after the death of Narasamma and during her lifetime the properties were in the possession and enjoyment of Narasamma and as Narasamma had life interest in the entire extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the doctrine of relation back. The doctrine of relation back is based on the principle that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son and an adoption, so far as the continuity of the line is concerned, has retrospective effect and that whenever the adoption is made, there is no hiatus in the continuity of the line and that in order that there may be no break in the continuity of the line the adopted son must be deemed to have come into existence before the death of his adoptive father and if he does not come into existence before the death of his adoptive father, there will be a break in the line. Therefore, the legal fiction is that the adopted son is in existence at the time of the death of the adoptive father. The Privy Council in Pratapsing Shivsing v. Agarsinghji Raisinghji, AIR 1918 PC 192, at page 194; 50 IC 457, 461 (col. 2) held: " Again it is to be remembered that an adopted son is the continuation 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 continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t v. Shankar, AIR 1943 PC 196, and held that the Privy Council in Anant v. Shankar went far beyond what had been previously understood to be the law and it was not in consonance with the principle well established in Indian jurisprudence and that an inheritance could not be in abeyance and that the relation back of the right of an adopted son was only quoad the estate of the adoptive father, and, moreover, the law, as laid down therein, lead to the results which were highly inconvenient. And if the adoption took place long after the succession to the collateral had opened and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations and finally held that they were of the opinion that the decision in Anant v. Shankar, AIR 1943 PC 196, in so far as it related to properties inherited from collaterals was not sound and that in respect of such properties the adopted son can lay no claim on the ground of relation back. The Supreme Court in Krishnamurthi v. Dhruvaraj, AIR 1962 SC 59, reaffirmed and followed the principles laid down by the decision of the Supreme Court in Srinivas v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deal with the properties in any manner detrimental or prejudicial to the interests of the adopted son. It is in this way that the doctrine of relation back can be reconciled with the ante-adoption agreement. When the right of the adopted son to succeed to the estate of his adoptive father is not affected in any way by the ante-adoption agreement, it has to be concluded that the entire estate of Venkanna in the case on hand is devolved on the adopted son, Venkataramaiah, and hence it is not case of cesser of interest assessable under s. 7 of the E.D. Act. Section 7(1) of the E.D. Act reads as follows: " 7. (1) Subject to the provisions of this section, property in which the deceased, or any other person had an interest ceasing on the death of the deceased, shall be deemed to pass on the deceased's death to the extent to which a benefit accrues or arises by the cesser of such interest, including, in particular, a coparcenary interest in the joint family property of Hindu family governed by the Mitakshara..." According to the provisions of s. 7(1) it is clear that the property in which the deceased had an interest which ceases on his death shall be deemed to pass and hence t ..... 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