Judgment

HEGDE, J. : The question for decision in this appeal by certificate is whether the full ownership conferred on a Hindu female under Sec. 14 (1) of the Hindu Succession Act (to be hereinafter referred to as the Act ) is defeasible by the adoption made by her to her deceased husband after the Act came into force.

2. The facts relevant for the purpose of deciding that question of law may now be stated. One Somasundara Udayar of Poongavur village in Tanjavoor District died prior to 1937 leaving behind him his widow Sellathachi and two daughters Kuppaimal and Punithavalli Ammal. The properties left behind by the deceased were inherited by his widow and they were in her possession when the Act came into force on June 17, 1956. By virtue of Section 14(1) of the Act. Sellathachi became the full owner of the properties inherited by her from her husband. On July 13, 1956, she adopted the plaintiff-1st respondent in this appeal. Thereafter on June 19, 1957 she settled 9 acres 16 cents of land and half share in a house inherited by her from her husband on her daughter Punithavalli Ammal, the appellant in this appeal. The validity of this settlement deed was challenged by means of a suit by the adopted son even during the lifetime of Sellathachi. The settlor who was impleaded as the 1st defendant to the action died soon after the institution of the suit. Various contentions were raised in defence but it is unnecessary to go into them. The trial Court dismissed the suit on the ground that in view of Section 14 (1) Sellathachi was the full owner of the properties inherited by her from her husband and hence the adopted son cannot impugn the alienation made by her. This decision was upheld in appeal but in second appeal, a Division Bench of the High Court of Madras reversed that decision holding that the adoption of the plaintiff must be deemed to relate back to the date of the death of Somasundara Udayar and, therefore, Sellathachi was incompetent to make the impugned alienation. The correctness of this finding is in issue in this appeal.

3. According to Hindu law texts as interpreted by Courts, on adoption by a Hindu widow, the adopted son acquires all the rights of an aurasa son and those rights relate back to the date of the death of the adoptive father - see Srinivasa Krishnarao Kango v. Narayan Devji Kango, 1955-1 SCR 1 . Hence, the estate held by a widow was a defeasible estate. The same is the case with a person possessing title defeasible on adoption not only his title but also the title of all persons claiming under him will be extinguished on adoption - see Krishnamurthi v. Dhruwaraj, 1962-2 SCR 813 . In fact, under the Benaras School of Mitakshara rule where a male coparcener is not entitled to alienate even for value, his undivided interest in the coparcenary property without the consent of the other coparceners, the alienation effected by a sole surviving male coparcener can be successfully challenged by a person adopted subsequent to the alienation. The fiction of relation back has been given full effect by Courts and consequences spelled out as if the fiction is a fact. The adopted son is deemed for all practical purposes, subject to some minor exceptions to have born as an aurasa son on the date his adoptive father died. Admittedly but for the relevant provisions in the Act the settlement in favour of the appellant could have afforded no basis for resisting the claim of the adopted son. Therefore, we have to see whether the provisions of the Act have effected any change in the law as regards the fiction referred to Section 4 (1) of the Act provides :

"Save as otherwise expressly provided in this Act -

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect of any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall c