Rights of adopted son in the family property

Sir John Beaumont.-This is an appeal from a judgment and decree of the High Court of Judicature at Bombay, dated 23rd March, 1943, allowing the respondents’ appeal against a judgment and decree of the First Class Subordinate Judge of Dharwar, dated 27th July, 1940.

The suit out of which this appeal arises was filed on 10th January, 1936, by the appellant as plaintiff in the Court of the First Class Subordinate Judge of Dharwar wherein he claimed as the adopted son of one Krishnaji to be entitled to a half share of the coparcenary property described in the schedules to the plaint.

The facts giving rise to the suit are these. Shrinivas and his two sons Ramchandra, who was defendant 2 in the suit and is respondent 1 in this appeal, and Krishnaji were members of an undivided joint Hindu family. Ramchandra had two sons who are respondents 2 and 3, and a daughter who is respondent 4. Krishnaji died on 6th January, 1930, leaving a widow, Radhabai, but no issue. On 16th December, 1932, Radhabai adopted the appellant to her deceased husband Krishnaji, and on the same day Shrinivas and Ramchandra entered into a partition deed (Exhibit 150) partitioning the coparcenary property between them in the shares shown in the deed. Thereafter, Shrinivas by a deed (Exhibit 151) made a gift of items 15 and 16 in Schedule A to the plaint, which formed part of his share on the partition, to his grandsons, respondents 2 and 3, and by a deed (Exhibit 153) he made a gift of item 14 in the said Schedule A, which was the other part of his share on the partition, to his grand-daughter, respondent 4. By his will, dated 22nd August, 1933 (Exhibit 152), Shrinivas gave all his residuary estate to his grandsons, respondents 2 and 3. Shrinivas died on 13th December, 1934.

At the trial the learned First Class Subordinate Judge held that the adoption of the appellant, which was challenged, in fact took place and was valid; that the partition took place after the adoption and did not affect the rights of the plaintiff. By his decree, the learned Judge declared the plaintiff to be entitled to a half share of the coparcenary property other than watan property, with certain exceptions which have not been challenged before the Board. He held, however, that the properties specified in Schedule C to the plaint and items 1 to 4 and 7 in Schedule B were watan properties which could not be dealt with in the suit and he left open the title to such’ properties.

In appeal the High Court at Bombay held that the partition took place before the adoption, and that at the date of the adoption there was no coparcenary in existence. Accordingly the Court held that the adoption of the plaintiff, though valid, did not divest the former coparcenary properties from those in whom they had vested on the partition, a view which the Judges were bound to take on the authority of the decision of a Full Bench of the said High Court in Balu Sakharam v. Lahoo1. However, since the decision of the High Court it has been held by this Board in the case of Anant Bhikappa v. Shankar Ramchandra2, that the view taken of the law in Balu Shankar’s case1 was erroneous, and on the basis of the Board’s decision it is clear that the appellant on his adoption became entitled to share in the coparcenary property notwithstanding that the coparcenary had come to an end before the date of his adoption.

Mr. Parikh for the respondents did not dispute that in view of the decision of the Board this appeal substantially would have to succeed but he challenged certain aspects of the decree of the Subordinate Judge if that decree was to be restored. In particular he claimed that the partition of December 1932, though ineffective as a partition by metes and bounds since it ignored the share of the appellant as a son of Krishnaji, nevertheless operated to disrupt the joint family, that thereafter Shrinivas was entitled to an undivided share of the family property, and that he effectively disposed of this undivided share