Section 12(b) of the Hindu Adoptions and Maintenance Act, 1956 recognizes and affirms the pre-existing right of a coparcener, irrespective of adoption, to any property that may have vested in them by birth, and such right is not divested by adoption, even if it occurred prior to the 1956 Act.

Soumen Sen, J.

1. This revisional application is heard on the limited issue of applicability of Section 12(b) of the Hindu Adoptions and Maintenance Act, 1956. I shall only record such facts that are limited to the issue are:

Bholanath Choudhury and his wife Dhaneswari Choudhury had two sons, namely, Manindra Narayan Choudhury and Sri Jadabendra Narayan Choudhury. Sri Jadabendra Narayan Choudhury, the petitioner No. 1 herein, was given in adoption to Jadunandan Choudhury and Tarangini Choudhury prior to coming into force of Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as "1956 Act").

2. The parties are governed by the Mitakshara school of succession.

3. Dhaneshwari Choudhury filed a Partition Suit against her elder son Manindra Narayan Choudhury in the year 1969. A preliminary decree was passed on 8th August, 1970. The said decree was taken to the Court of Appeal. The Appellate Court modified the preliminary decree by an order dated 13th September, 1978. At the time of drawing up of final decree, a survey passed Commissioner was appointed and during that time on 5th December, 1994, Dhaneshwari Choudhury filed an application under Order 1 Rule 10 of the Code of Civil Procedure for impleading her youngest son Jadabendra Narayan Chowdhury, his sons and son-in-law etc. as plaintiffs in the suit. Jadabendra and others on the same day filed another application for allotment of shares to the extent of 1/10th share each on the basis that the suit property is an ejmali property and the family of the plaintiff is guided by principles of Mitakshara school of Hindu Law. Another application was filed by one Purnima Chakraborty and others contending that the defendant Manindra Narayan, since deceased, was their father and on his demise, they, being legal heirs and representatives, are entitled to share in the coparcenary property and, accordingly, prayed for their addition as defendants.

4. The plaintiff pleaded inadvertence as the ground for not bringing on record the said persons as parties and it was prayed that since the final decree has not yet been drawn up, preliminary decree can be altered by adding them in this suit and declaring that each have equal undivided 1/10th share in the suit property. It was contended that for proper adjudication of the matter in dispute, they are required to be added as necessary parties.

5. The relationship of the parties and the entitlement of the parties to the shares otherwise are not in dispute. The dispute arose as to the entitlement of the share in the coparcenary property by Jadabendra in view of an adoption which is claimed to have taken prior to 1956. The defendants contended that there is a specific pleading in the plaint that Jadabendra since adopted, has severed all ties from the family of his biological parents and he has no right over the suit property and as long as the said pleading remains unamended the persons sought to be added or the ground on which they are sought be added cannot be made parties. Since Jadebendra Narayan is no longer a coparcener he or his legal heirs have no right in the family property of his biological parents.

6. Mr. Jaydip Kar, the learned Counsel appearing on behalf of the petitioners and Mr. Bidyut Kr. Banerjee, the learned senior Counsel appearing on behalf of the opposite parties have conceded that implications of Section 12(b) was not argued before the learned trial Judge. The application for addition of party was disallowed on the ground that since the petitioner was adopted in the family of Jadu Nandan Choudhury and Tarangini Choudhury, the petitioner ceased to have any interest in the coparcenary property.

7. The deed of adoption was executed sometimes in 1948 and it is not in dispute that by reason of such deed of adoption, the petitioner has severed ties with his biological parents.

8. The only question required to be decided is whether by reason of such adoption of Jadabendra prior to 1956 Act, he still could claim any share in t