JUDGMENT - Chagla, C.J.

[1] The question referred to this Full Bench is, will an adoption after the death of a collateral allow the adopted son to come in as an heir of the collateral ; and the few facts which are necessary to be stated for the determination of this question are these. One Krishnappa had five sons, Keshav, Anappa, Bhimrao, Apparao and Madhav. After the death of Bhimrao and Apparao, the brothers became divided and Keshav, Annappa and Madhav each got a one-third share of the joint family property. Annappa died in 1901 and Madhav died in 1903. Annappa left a widow Tungabai. Keshav left a son Vishnu who died in 1918, and as this was watan property, although Keshav had a daughter, the property went to the nearest male heir who was at the time Hanmant a collateral of Keshav. Annappas widow adopted defendant 1 on 18th July 1922. Hanmants sons are the plaintiff and defendant 2, and the plaintiff and defendant 2 claimed the property which Keshav had and which descended to Vishnu. The question that has got to be considered is whether on the adoption of defendant 1 on 18th July 1922, the property which would go to the plaintiff and defendant 2 by inheritance is divested and the adopted son can lay a claim to that property.

[2] Now, it has been observed by the Privy Council in several cases that an adoption relates back to the death of the adoptive father and an adopted son must be looked upon as if he was in existence, at the date of the death of the adoptive father. But it is not a correct proposition to say that the rights of an adopted son are in all respects identical with that of a natural born son. The principle of relation back is not an absolute principle but it has certain limitations. For instance, one limitation is that any lawful alienations made by the last absolute owner would be binding on the adopted son, and the question that we have to consider in this Full Bench is whether there is a further limitation on the rights of the adopted son and the limitation that is contended for is that if the property by inheritance goes to a collateral and the adopted son is adopted after the death of the collateral, the adoptive cannot divest the property which has vested in the heir of the collateral. Reliance is placed on the Privy Council decision in Bhubaneswari Debi v. Nilkomul Lahiri, 12 I. A. 137 : (12 Cal. 18 P. C.). There it was expressly held that according to Hindu law an adoption after the death of a collateral does not entitle an adopted son to come in as heir to the collateral Mr. Madbhavi has attempted to distinguish this case by pointing out that Sir Barnes Peacock, both while arguments were going on at the bar and in the judgment of the Privy Council which he delivered, emphasised the fact that the adopted son was not in existence at the time of the death of the widow in whom the property was vested. But in our opinion that particular fact cannot be looked upon as the deciding factor in the decision. That is certainly not the ratio which led the Privy Council to come to the conclusion. It is immaterial whether an adopted son is or is not in existence at the time of the death of the person whose property is attempted to be divested. The question is, what is the effect of the adoption which for certain purposes relates back to the death of the adoptive father. But whatever might have been said of the decision of the Privy Council in Bhubaneshwaris case, 12 I. A. 137 : (12 Cal. 18 P. C.), all doubt has been set at rest by the manner in which the Privy Council has reaffirmed and re-emphasised that principle in the recent decision of Anant Bhikappa v. Shankar Ramchandra, 70 I. A. 232 : (A. I. R. 930) 1943 P. C. 196). At p. 9 their Lordships say :

"Neither the present case nor Amarendra Mansingh v. Sanatan Singh, 35 Bom. L. R. 859 : (A. I. R. (20) 1933 P. C. 155), brings into question the rule of law considered in Bhubaneshwari Debi v. Nilkomul Lahiri, (12 I. A. 137 : 12 Cal. 18 P. C.) and stated by the Board to

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