The central legal principle established in the judgment is that property acquired on partition by a Hindu son does not get divested upon his adoption.

CHAGLA, C.J. :- This appeal raises an interesting question as to the rights of a Hindu son in his natural family on his adoption. One Fakira Shravan mortgaged certain lands to defendant on 18th April 1925, and he was given in adoption on 9th December 1927. Defendant 1 obtained a decree on his mortgage in Special Suit No. 987 of 1931 against Fakira and in execution proceedings defendant purchased the property. Bahinabai then filed a suit from which this appeal arises for a declaration that the decree passed in the mortgage suit was not binding on her and that she was entitled to the mortgaged property and that defendant 1 had no right, title and interest in that property. Bahinabais contention was that on Fakiras adoption the equity of redemption in the mortgaged property was divested from Fakira and became vested in her, and as she was not a party to the suit, the mortgage decree could not be binding on her; and the question that arises for our determination is whether on the adoption of Fakira the equity of redemption became divested. Now, this property came to Fakira on a partition made between the grandfather and his two uncles, his own father being dead; and therefore when he mortgaged the property and when he was adopted, he owned this property absolutely as having been given to him on partition. Now, the result of an adoption is that a Hindu as it were dies a civil death in his natural family and is re-born in the family of his adoption, and the question hag been considerably agitated in the different High Courts in India as to what is the effect from the point of view of a Hindu who is adopted. The Madras and the Calcutta High Courts have taken the view that the property which already vested in the adopted son does not get divested by his adoption. It is only his future rights in the natural family and his rights to inherit his father that are lost to him on his leaving his natural family and going to the family of adoption. Our High Court has taken a different view, and the views of all the High Courts are baaed on a test of Maim which Sir Dinahah Mulla translates in his Treatise on Hindu Law at page 568, and the text is this :

"An adopted son shall never take the family (name) and the estate of his natural father" Therefore, it is the estate of his natural father that the adopted son is prohibited and precluded from taking. Now, one should have thought that a share in a joint Hindu family could never be described by the designation of an estate, and therefore if a Hindu by survivorship gets the property which both he and his father were entitled to in the joint family, it would not he possible to speak of that share as having been inherited by the adopted son from the estate of his father. But it is too late in the day to contend for that view because this Court in a series of decisions has taken the view that if a sole surviving coparcener is adopted, then the property vested in him as such coparcener gets divested : see Dattatraya Sakharam v. Govind Sambhaji, 40 Bom 429 : (AIR (3) 1916 Bom 210), Manikbai v. Gokuldas, 49 Bom. 620 : (AIR (12) 1925 Bom 363) and Bai Kesharba v. Shivsangji, 56 Bom 619 : (AIR (19) 1932 Bom 654). But the case we are considering is not a case of the adopted son becoming entitled to the property in suit by survivorship as the sole surviving coparcener. Fakira got the property as I have stated earlier, on partition, and our High Court has decided in Mahableshwar Narayan v. Subramanya Shivram, 47 Bom 842 : (AIR (10) 1923 Bom 297) that a share coming to a Hindu on partition belongs absolutely to him, and on his being adopted, such a share does not become divested. Sir Norman Macleod, in delivering the judgment of the Court, says this (p. 546) :

"In the present case defendant 1 bad an absolute right to the share in the family property which had come to him on partition. He could have disposed of it so long as his right of disposition was not fettered by a son being born to him."

Then Sir