IMPORTANT POINTS
(1) Adoption by a widow relates back to date of death of adoptive father.
(2) There can be no vacuum or break in vesting of title on death of a person.

JUDGMENT :

K.M. Joseph, J.

By the impugned judgment, the High Court has allowed the Second Appeal No.299 of 2000 filed by defendant No.1. The Second Appeal arose out of R.C.S No.91 of 1986 filed by the first appellant (Kasabai since deceased). The said Suit was filed seeking partition of the plaint schedule properties. The genealogy of the parties is admitted and is as follows:-

2. The first appellant (Kasabai since deceased) was the plaintiff. Nivrutti, in other words is the adopted son and referred to as the first defendant. The father of the plaintiff and the first defendant and other family members passed away on 16th March, 1948. We have already noticed that the father had married on three occasions. The first marriage did not produce any issues. The second marriage produced defendant Nos. 4 to 6 in the present suit. The third marriage entered by the father with Bhagubai (third wife) produced one issue, namely, Kasabai. The plaintiff was born, in fact, after 10 days of passing away of her father. It is again not in dispute that the first defendant was adopted by the widow on 17.11.1949 by a registered deed. There is also no dispute that the adopted son instituted a suit claiming right over the plaint schedule properties impleading defendant Nos.4 to 6. Defendant Nos. 4 to 6 are step sisters born to the second wife (Dhondabai) and their father Kushaba. The said suit was decreed. In the appeal, there was a compromise. On the strength of the said compromise, the step sisters instituted a suit - R.C.S. No. 53 of 1984. The said suit has been decreed finally as we can notice by the dismissal of the Second Appeal No.233 of 2000, as can be discerned from the common judgment which is the impugned judgment in this case also.

3. The present civil appeal arises, however, from the common judgment by which the High Court has allowed the Second Appeal No.299 of 2000. The Second Appeal No.299 of 2000 arises from the suit for partition which we have noticed was filed by the plaintiff. As far as the lis between the step-sisters (defendant Nos. 4 to 6) and the plaintiff is concerned, it has been given a quietus by the common judgment.

4. As far as the cause of action relevant to the present civil appeal is concerned, the plaintiff proceeded on the basis that the plaint schedule properties are joint family properties. It is the further case of the plaintiff that the plaintiff being the daughter was entitled to share along with the adopted son. Their mother also got a share and remarried. The result of the remarriage has been found by the Trial Court in favour of the plaintiff that her share would vest in the legal heirs. Resultantly, both the plaintiff and the first defendant (adopted son) would get 1/2 share. This view also found acceptance in the hands of the First Appellate Court. It is this concurrent finding which has been reversed by the High Court in the Second Appeal by the impugned judgment.

5. The High Court has found that in view of the adoption made of a son by the widow, namely, the mother of the plaintiff and the first defendant, the adoption would relate back to the time of the death of the father-Kushaba on 16.03.1948. The further consequence of the doctrine of relation back being applied was that the adopted son would emerge as the sole and exclusive heir and he would divest the plaintiff of her rights.

6. It is also found by the High Court that the case of the plaintiff that she was in joint possession of the plaint schedule properties, did not inspire the confidence of the Court. The said version was also disbelieved. This necessarily resulted in the dismissal of the suit filed by the plaintiff after reversing the concurrent findings.

7. We have heard learned counsel for the plaintiff and learned counsel for the first defendant.

8. Learned counsel for the plaintiff would raise a controversy as to the applicability of the doctrine of relation back. He would further contend that the impugned judgment results in the exclusion of the d