Honble NAOLEKAR, J. – Since common questions of law and facts are involved in both these petitions, they are being disposed of by this common order.

(2). Respondents No. 4 and 5 Tejaram and Chawli are the son and daughter of deceased plaintiff Hanuman and the petitioners are legal representatives of de- ceased Kanaram. Admittedly, the property in dispute belonged to Budharam, who had two sons Narain and Baluram. Hanuman plaintiff was the son of Narain and Kana Ram was the son of Baluram. Respondents No. 4 and 5 are legal representatives of Hanuman and petitioners No. 1 to 12 are the legal representatives of Kanaram.

(3). Hanuman filed a suit for declaration of his title for half share, partition and separate possession of 46.2 Bighas of land situated in Chak 4 PBM, village Padampura, Tehsil Suratgarh. The suit was filed on the allegation that after the death of Budharam, the land devolved in equal share on his sons namely, Narain and Baluram. Narain died in the year 1918 and his half share was mutated in the name of Hanuman in the year 1928 and, therefore, he has half share in the property. In defence, it was alleged by Kanaram that Hanuman went in adoption in the year 1924-25 although the deed was registered in the year 1938 and, therefore, he had no right, title and interest in the suit property. All the three courts below have decreed the suit of the plaintiff Hanuman, against which the present writ petition is being filed, which is registered as S.B. Civil Writ Petition No. 461/94 Smt. Revti & Ors. vs. Board of Revenue, Rajasthan, Ajmer & Ors.

(4). The entire land in question was mutated in the name of Kanaram and, therefore, an application was moved by Hanuman that mutation made in favour of Kanaram be cancelled as he has half share in the property. The mutation was cancelled, which was maintained upto Board of Revenue, against which Writ Petition No. 1074/94 Smt. Revti & Ors. vs. Board of Revenue, Rajasthan, Ajmer & Ors., is filed. The application for correction of mutation and the suit was disposed of by the Board of Revenue by common order.

(5). It is contended by the counsel for the petitioners that once the petitioner was given in adoption, he has lost right and title in the suit property and, therefore, the Board of Revenue has committed an error in granting a decree of partition, declaration of half share and possession in favour of Hanuman and has also erred in setting aside the mutation made in favour of Kanaram.

(6). The finding of the courts below is that the adoption took place in the year 1938. On the basis of the material on record, it is clear that Narain died in the year 1918 and the right, title and interest of Narain, which would be half the share in the property, would devolve on Hanuman plaintiff immediately on the death of Narain because succession could not remain in abeyance. It has been held by the Madras High Court in Sri Rajah Venkata Narsimha vs. Sri Rajah Rangayya (1), that an adoption does not divest any property which has vested in the adopted son previous to the adoption and accordingly, it has been held by that Court that where coparcenary property has already vested in a person as the sole surviving coparcener, and such person is subsequently adopted into another family, he does not, by adoption, lose his rights in that property. The same principle has been applied when the partition was between the grand-father and his son and grandsons and one of the grandsons who got a share on partition was subsequently adopted into another family by the Bombay High Court in Bahinabai Shravan Patil vs. Kishanlal Kunjilal Shet (2). The Calcutta High Court has taken a view in Rakhalraj Mondal vs. Debendra Nath Mondal (4), that a son given in adoption will not be divested of any property of which he had become owner by inheritance prior to his adoption. The Punjab High Court in Har Lal vs. Ganga Ram (4) and Orissa High Court in Madhab Sahu vs. Hatkishore Sahu (5), have taken the similar view. Thus, the consist

Click Here to Read the rest of this document