Judgement

HEGDE, J.: This appeal by certificate arises from the decision of the Mysore High Court in R. A. 147 of 1958 reported in (1966) 5 Law Rep 569 on its file. The plaintiff is the appellant. The man question that arises for decision in this appeal is as to the share to which the plaintiff is entitled in the properties held to the partible by the High Court. One other minor contention had also been urged which will be referred to and dealt with at the appropriate stage.

2. The facts as found by the High Court and which are no more in dispute may now be stated.

3. The appellant is the adopted son of one Ranga Roa alias Ramachandra Rao who died in 1912. He was adopted by the said Ranga Rao s widow Seethabai on September 18, 1955. The genealogy of the family of Ranga Rao is as follows:

4. Hanumantha Rao went out of the family having been adopted into some other family. There was a partition between Krishna Rao and Lashmana Rao, the only two existing coparceners at that time, in 1933. After partition Krishna Rao is said to have bequeathed his properties to some of his relations as per his will dated November 8, 1934. Subsequently there was a further partition between Lakshmana Rao and defendant No. 2 Nagappa on February 14, 1946. Lakshmana Rao died in 1952. As mentioned earlier, the plaintiff was adopted on September 18, 1955 and the suit from which this appeal arises was instituted in 1956 by the plaintiff-appellant represented by his natural father, as his next friend as he was minor on the date of the suit. The trial court granted the plaintiff half share in the properties that were held to be that of the family. The High Court modified the decree of the trial court in certain respects. It is not necessary to refer to all the modifications made by the High Court. We shall refer only to those modifications which are challenged in this appeal. The High Court reduced the share awarded to the plaintiff from half to 1/3rd of the properties held by it to be partible. The correctness of this decision is questioned. The only other question is whether the High Court was justified in setting aside the trial court s decree awarding a sum of Rs. 1500/- to the plaintiff.

5. Before proceeding to examine the appellant s contention that he is entitled to a half share in properties held to the partible, it would be convenient to dispose of his contention relating to the money decree.

6. The trial court came to the conclusion that out of the consideration of Rs. 6500/- received under the sale deed Exh. 177, the second defendant had not accounted for Rs. 3000/- Hence the plaintiff is entitled to a half share therein. The trial court as well as the High Court have found that the sale in question is valid as the same was effected to meet family necessities. The appellant did not seek an accounting from the 2nd defendant. No case was made out for requiring the 2nd defendant to account in respect of the amounts received by him as the karta of the family, nor did the plaintiff aver in his plaint that there was any cash in the hands of the 2nd defendant. Hence the High Court was justified in reversing the decree of the trial court directing the defendant to pay to the plaintiff a sum of Rs. 1500/-.

7. This leaves us with the question as to the share to which the plaintiff is entitled in the partible properties. Even before the plaintiff was adopted into the family, there was a partition between Krishna Rao and Lakshmana Rao. The genuineness of that partition is no more in dispute. After the partition Krishna Rao became absolutely entitled to his share of the properties and hence he was entitled to deal with that property in the manner he thought best. As mentioned earlier he had bequeathed his properties to others. But it was urged on behalf of the appellant that his adoption dates back to the date of the death of his adoptive father, Ranga Roa By a fiction of law, he must be deemed to have been in existence, when Krishna Rao and Lakshmana Rao divided th