JUDGMENT :

P.Naveen Rao, J.

When L.P.A.No.204 of 2001 came up for consideration before the Division Bench, on behalf of appellant, it was contended that on adoption by adoptive family, the person ceases to have any relationship with the family of his/her birth and is not entitled to claim share in the ancestral property of family of birth. It was further contended that the decision of Division Bench of the then High Court of Andhra Pradesh in Yarlagadda Nayudamma vs. The Government of Andhra Pradesh, rep.by the Authorized officer, Land Reforms, Ongole, AIR 1981 AP 19 is not a good law. Reliance is placed on decisions of Hon’ble Supreme Court in Basavarajappa Vs. Gurubasamma and others, (2005) 12 SCC 290; Sawan Ram vs. Mst. Kalawanti and others, AIR 1967 SC 1761; Smt Sitabai and another vs. Ramchandra 1969 (2) SCC 544; and the decision of Patna High Court in Santosh Kumar Jalan alias Kanhaya Lal Jalan vs. Chandra Kishore Jalan and another AIR 2001 Patna 125, and the decision of Bombay High Court in Devgonda Raygonda Patil vs. Shamgonda Raygonda Patil and another, AIR 1992 Bombay 189.

2. Per contra, respondents contended that under Section 6 of the Hindu Succession Act, 1956 (for short, ‘Act, 1956’), devolution of interest of coparcenary property is by survivorship and is not divested by the adoption of the adoptee in the light of the language employed in proviso (b) to Section 12 of the Hindu Adoptions and Maintenance Act, 1956 (for short, ‘Adoptions Act’). They relied on the decision of Division Bench of the then High Court of Andhra Pradesh in Yarlagadda Nayudamma (supra) and the decision of Bombay High Court in Shivaji Anantrao Deshmukh vs. Anantrao Devidasrao Deshmukh, 1990 SCC Online Bom 72.

3. The Division Bench has looked into various decisions cited at the bar and the decision in Nayudamma. The Division Bench was not persuaded to accept the reasoning assigned in Nayudamma. The Division Bench posed the question for consideration as under:

“17. On the above analysis of the case laws on the point, the question is whether the rights of a coparcener in the joint possession and enjoyment of the property is clear vesting of title in the coparcener even before partition, and can he be said to be short of rights of a full owner or whether his rights would get crystallized into definite share only on actual partition. In view of the dissenting views expressed by this Court in Yarlagadda Nayudamma’s case (supra) as also the view expressed by the Patna High Court in Santosh Kumar Jalan’s case (supra) and the decisions of other Courts following these decisions, an authoritative pronouncement will set at nought the issue.”

4. The Division Bench also posed following question for consideration:

“Whether by virtue of the proviso (b) to Section 12 of the Adoption Act, the undivided interest in the property of a coparcener will not, on his adoption, be divested, but will continue to vest in him even after his adoption.”

5. Therefore, the Division Bench requested Hon’ble the Chief Justice to refer the matter to a Full Bench for an authoritative pronouncement. Accordingly, the matter is placed before this Full Bench.

THE REFERENCE:

6. The question referred to Full Bench is as under:

“Whether the rights of a coparcener in the joint possession and enjoyment of the property is clear vesting of title in the coparcener even before partition, and can he be said to be short of rights of a full owner or whether his rights would get crystallized into definite share only on actual partition; and

Whether by virtue of the proviso (b) to Section 12 of the Adoption Act, the undivided interest in the property of a coparcener will not, on his adoption, be divested, but will continue to vest in him even after his adoption.”

7. Briefly noted, this LPA arises out of judgment and decree in O.S.No.54 of 1977 on the file of Senior Civil Judge’s Court, Khammam for partition and possession of the suit schedule properties. Appellant herein is the Defendant No.1 in the suit.