Karnataka High Court
Sri T.N. Anantha Balaraje Urs vs Smt. Gunamba Nanjaraje Urs. on 15 June, 2005
Equivalent citations: 2005(5)CTC1, ILR2005KAR3596, [2006(1)JCR384(KANT)], 2005(5)KARLJ256, AIR 2005 (NOC) 430 (KAR), 2005 A I H C 3419, (2006) 1 CIVILCOURTC 125, (2005) 36 ALLINDCAS 542 (KAR), (2005) 5 CTC 1 (KAR), (2005) 5 KANT LJ 256, (2005) 3 RECCIVR 495, (2006) 1 CIVLJ 402, (2005) 4 CURCC 339, (2005) 2 HINDULR 584, (2006) 1 JCR 384 (KAR), (2005) 4 KCCR 2911, 2005 AIR - KANT. H. C. R. 1701, (2006) 1 MARRILJ 103
Bench: N. Kumar, Ram Mohan Reddy
JUDGMENT S.R. Nayak, J.
1. This appeal preferred by the defendant in the suit arises out of the judgment and decree dated 28.2.1997 passed in O.S. No. 188 of 1991 on the file of the Court of the II Addl. Civil Judge, Mysore. The Court below has decreed the suit for partition and separate possession of the share of the plaintiff who is respondent is this appeal in the suit schedule properties. The plaintiff filed the suit for declaration that she is entitled for half share in item No. 1 of the suit schedule property and two-third share in item nos. 2 and 3 of the suit schedule properties and for partition of the same by metes and bounds and to put her in separate possession of the same and also for directing an inquiry regarding future mesne profits.
2. The facts set out in the plaint, in brief, are as follows:
Sri M.N. Balaraje Urs was the absolute owner of the suit schedule properties and he died on 17.6.1930. At the time of his death, he was the sole surviving co-parcener of the family. He left behind his wife Smt. Lingajjammanni and his daughter Kunanda Nagaraje Urs, the plaintiff. He had executed a Will dated 13.6.1930 produced and marked as Exhibit-P.2. which was commenced on 9.6.1930 and completed on 13.6.1930. The Will was probated in Mis. No. 70/30-31 by the learned District Judge, Mysore and the probate was granted on 4.4.1931. Under the Will, Sri. M.N. Balaraje Urs had bequeathed his self-acquired property to his wife Smt. Lingajjammanni and the plaintiff who is his only daughter. Sri. M.N. Balaraje Urs had no male issues and therefore he had permitted his wife Smt. Lingajjammanni to take in adoption any boy except from the family of Sri. Balananjaraje Urs. He also bequeathed the ancestral properties of 1/3rd share each in favour of his wife, daughter who is the plaintiff and his brother Narasaraje Urs by name. In the will, it was covenanted that in the event of Narasaraje Urs getting the stipend of Rs. 600/- per month from the Palace administration, the properties bequeathed to him shall vest with his wife Smt. Lingajjammanni. Sri. Nanjaraje Urs got the stipend of Rs. 600/- per month and consequently his 1/3rd share in the ancestral properties as per the will came to be bequeathed in favour of Smt. Lingajjammanni. Thus, Smt. Lingajjammanni got 2/3rd share in the ancestral properties and the remaining 1/3rd share came to be bequeathed in favour of the plaintiff. As permitted under the will Smt. Lingajjammanni took the defendant in adoption on 13.6.1951 by adoption deed dated 13.6.1951 produced and marked as Exhibit-D. 1 which came to be registered in the Office of the Sub-Registrar, Mysore. Smt. Lingajjammanni continued to be the owner of 2/3rd share till her death on 30.4.1975. She died intestate leaving behind the plaintiff and the defendant as her legal representatives. The defendant is none other than the natural son of the plaintiff. The plaintiff and Smt. Lingajjammanni had entered into a partition of the ancestral properties left behind by late Sri. M.N. Balaraje Urs by a partition deed dated 13.6.1965 with regard to item No. 1 of suit schedule properties in terms of the will dated 13.6.1930. The plaintiff had not taken her 1/3rd share in item nos. 2 and 3 of the suit schedule properties. Athough the plaintiff and the defendant have been in joint possession and enjoyment of the suit schedule properties, it is alleged that the defendant recently exhibited a hostile attitude towards the plaintiff in the matter of enjoying the suit schedule properties. That led to the plaintiff causing a legal notice dated 5.6.1991 demanding partition and separate possession of the suit schedule properties. The defendant sent an untenable reply that led to the filing of a suit praying for the reliefs noticed above.
3. The defendant put in appearance through his Counsel and contested the suit by filing written statement. The written statement was amended twice. In the written statement it was contended that the adoption made by Smt. Lingajjammanni relates back to the lifetime of Sri. M.N. Balaraje Urs, and consequently, the defendant became the adopted son of Sri. M.N. Balaraje Urs. Sri M.N. Balaraje Urs was incompetent to do away with the co-parcenery property in its entirety and the will executed by him could only be operative to the extent of his right, title and interest in the co-parcenery properties. Pursuant to the adoption in the year 1951, the defendant became the absolute owner of all the properties of Sri. M.N. Balaraje Urs. Although the will executed by Sri. M.N. Balaraje Urs was probated it would not bind the defendant because Sri. M.N. Balaraje Urs was incompetent to will away co-parcenery properties in its entirely. Therefore, the plaintiff is not entitled to the reliefs as sought in the plaint. Late Smt. Lingajjammanni would be entitled to the l/4th share in item nos. 2 and 3 of the suit schedule properties and the plaintiff and the defendant are entitled for equal right in the said share of Lingajjammanni. If so, the plaintiff is entitled to 1/8* share in item nos. 2 and 3. The defendant was not made aware of the partition deed dated 17.6.1965 nor he was made a party to the said partition. The plaintiff has taken the properties whatever was bequeathed under the Will. The defendant is the natural son of the plaintiff. He was given in adoption to his maternal grandfather. The plaintiff got married in the year 1935 and she continued to live with Lingajjammanni till her death and thereafter she shifted to her one third share. Items 2 and 3 were acquired by Lingajjammanni from out of the properties of Balaraje Urs. Therefore, they became the ancestral and joint family properties in the hands of Lingajjammanni and they could not be described as stridhana properties. The suit schedule properties are also the properties of the defendant and therefore, Lingajjammanni had no absolute rights of ownership in them. The plaintiff is not entitled to any share much less half share in the suit schedule properties. Assuming that Lingajjammanni had a right in the properties she could have been entitled only to half share to which her husband would have been entitled to if he were alive. Therefore, Lingajjammanni would be entitled only to one fourth share in items 2 and 3 and the plaintiffs and defendants are entitled for equal rights in the said share. In such an event the plaintiff is entitled to one-eighth share in items 2 and 3. The defendant has sent a proper reply to the legal notice dated 5.6.1991. The plaintiff is not entitled to call for any accounts. The claim of the plaintiff is barred by time as the suit was brought 12 years after the death of Lingajjammanni. The right that could have been claimed by the plaintiff being the heir of Lingajjammanni got extinguished.
4. The plaintiff filed a rejoinder also where she has denied that the suit is barred by time.
5. On the above pleadings, the following issues were framed:-
1. Whether M.N. Balaraje Urs was the sole surviving coparcener?
2. Whether the adoption of the defendant, by Lingajjammanni was legal? If so, whether the defendant became the adopted son of M.N. Balaraje Urs?
3. Whether M.N. Balaraje Urs was incompetent to execute the Will referred to in the plaint?
4. Whether Lingajjammanni became the absolute owner of 2/3rd share in the properties of M.N. Balaraje Urs?
5. Whether the defendant on account of the adoption became the absolute owner of all the properties of M.N. Balaraje Urs on the principle of relation back?
6. Whether Plaintiff and the defendant became the legal representatives of Lingajjammanni to the properties of M N Balaraje Urs?
7. Whether plaintiff has 1/2 share in item No. 1 and 2/3rd share in items 2 and 3 of the plaint schedule properties? If not, what is her share?
8. Whether plaintiff had lost her right if any on the principles of ouster?
9. Whether the suit is barred by the law of limitation?
10. Whether the right of the plaintiff if any is extinguished by operation of law?
11. Whether the suit is improperly valued for the purpose of Court fee and the Court fee paid is insufficient?
12. Whether plaintiff is entitled for the relief of partition and separate possession?
13. Whether plaintiff is entitled for accounts and profits?
14. To what decree or order, the parties are entitled?
The plaintiff in support of her case examined one T.N. Hari Nanjraje Urs as PW1, her son and got marked Exhibits P1 to P15. The defendant got examined himself as DW1 and Exhibits D1 to D22 were marked. The learned trial Judge after considering the pleadings, oral and documentary evidence adduced on record and the arguments held that, Late Sri. M.N. Balaraje Urs was the sole surviving coparcener. The adoption of the defendant by Lingajjammanni was legal and consequently he became the adopted son of M.N. Balaraje Urs. He held that Sri M.N. Balaraje Urs was competent to execute the will referred to in the plaint and consequently held Smt. Lingajjammanni became the absolute owner of 2/3rd share in the properties of M.N. Balaraje Urs. He negatived issue No. 5 holding that the defendant did not become the absolute owner of all the properties of Sri. M.N. Balaraje Urs on the principle of relation back. Consequent to the death of Lingajjammanni he held both the plaintiff and defendant became the legal representatives to the properties of M.N. Balaraje Urs. He held that the plaintiff is entitled to half share in item 1 and 2/3rd share in items 2 and 3 of the plaint schedule properties. He also held that the plaintiff has not lost her right on the principle of ouster and that suit is not barred by law of res judicata. He also held that the right of the plaintiff is not extinguished by operation of law. The suit was held to be properly valued and the plaintiff was entitled to the relief of partition and separate possession. In so far as the accounts and profits are concerned it was directed to be enquired into in the final decree proceedings. Accordingly, he decreed the suit of the plaintiff declaring that the plaintiff is entitled to half share in the plaint item No. 1 of the properties and 5/6th share in item Nos. 2 and 3 of the suit schedule properties. Directions were issued for effecting partition by appointing a commissioner in respect of items 1 and 2 and insofar as item 3 is concerned, the Deputy Commissioner was directed to effect partition under Section 54 of CPC. Aggrieved by the said judgment and decree dated 28.2.1997 the appellant has preferred this appeal.
6. This appeal was heard by a Division Bench of this Court on 7.11.2003 and one of the questions that was debated before the Division Bench was that whether an adoption made by a Hindu widow after the death of her husband relates back to the date of death of the adoptive father. The other question that was addressed to the court for consideration and decision was whether any such adoption would affect the disposal of the properties by the deceased adoptive father in terms of the will executed by him. The Division Bench having noticed several judgments including the judgment of a Full Bench of this Court in Chikkawwa minor by next friend, mother Gangawwa v. Chikkappa and Anr., the Mysore High Court Reports, Vol. 54 Page 12 and the judgment of a Division Bench of this Court in Ramachandra v. Anasuyabai and Ors. AIR 1969 Mysore 64 which have bearing on the decision-making on the aforementioned two questions and having opined that the opinion to be handed down by the Court on the aforementioned two issued would have for-reaching implications, thought it appropriate to refer the entire appeal for final disposal to the Full Bench. As directed by the Hon'ble the Chief Justice, the appeal is laid before the Full Bench for hearing and final disposal of the appeal.
7. We have heard Sri. V.P. Kulkarni, Learned Counsel for appellant and Sri. Mahale, Senior Counsel for the respondent. Sri. Kulkarni, while agreeing with the principle that the disposal of the property by the adoptive father for consideration in favour of third parties may remain unaffected by any adoption made after the death of the adoptive father, would, however, contend that in this case the Will executed by the adoptive father does not result in any such disposal and would therefore stand superceded or rendered ineffective by the adoption made by the widow by virtue of the doctrine of relation back. According to Sri. Kulkarni, there was no alienation for valuable consideration in favour of any third party in the instant case and that the property was in the hands of the adopted son, with the result that if the Will executed by the adoptive father was ignored the estate would continue to vest in the adopted son. Sri V.P. Kulkarni, while assailing the correctness of the finding on issue No. 9 would point out that the appellant was adopted on 13.6.1951 and from that date onwards, he started enjoying the suit schedule properties; the plaintiff, who is the natural moter of the appellant did not oppose to the appellant enjoying nor assert right over the suit schedule properties. Sri Kulkarni would point out that all the revenue records of the suit schedule properties stand in the name of the defendant and since the suit was not filed within 12 years from the date of death of Smt. Lingajjammanni, the suit is barred by limitation inasmuch as Section 27 and Articles 64 and 65 of the Limitation Act are attracted.
8. While meeting the arguments of Sri. Kulkarni with regard to the application of doctrine of relation back, Sri. Mahale would fairly concede that an adoption made by the Hindu widow especially the one who has been authorised to make such an adoption in terms of the will left behind by her husband will relate back to her husband's death. Sri. Mahale, however, would contend that any such relation back will not affect the validity of any alienation or disposal of property whether testamentary or otherwise by the adoptive father. In other words, according to Sri. Mahale the alienation made by the adoptive father before his death would remain unaffected by the adoption made by his widow. It was argued by Sri. Mahale that apart from the alienation inter vivos made for valuable consideration in favour of third parties, the execution of a Will by the adoptive father would also constitute a disposal of the property, which would remain unaffected by any such adoption. In other words, according to Sri. Mahale, even when the adoption may add a lineal descendant to the male line of descent of the husband of the widow, any such addition will not prevent the devolution of the interest in the joint family properties upon the legatees in terms of the Will. Sri Mahale, while supporting the findings records by the Court below on issue No. 9 would highlight the fact that there is neither pleading nor evidence to show that the appellant has enjoyed the suit schedule properties adverse to the interest of his adoptive mother or the plaintiff. He would also point out that it has come in the evidence that the plaintiff, even after her marriage in the year 1935, continued to live with Lingajjammanni till her death and only thereafter, she shifted to her 1/3rd share of property.
9. Before us, Sri V.P. Kulkarni did not contest the correctness of any of the findings recorded by the Court below on any other issue except issue Nos. 5 and 9.
10. Having heard the learned Counsel for the parties, the following two points arise for decision:
(i) Whether the adoption of the defendant by the adoptive mother in terms of the Will dated 13.6.1930 executed by his deceased adoptive father would affect the disposal of the properties by the deceased adoptive father?
(ii) Whether the suit filed by the respondent herein is barred by limitation?
Re Point No. 1:
11. Before the Hindu Adoption and Maintenance Act, 1956 was enacted, the Courts had been intrigued by the question whether adoption relates back to the date of death of adoptive father without there being a hiatus in continuity of the line and would have the effect of: (a) divesting the estate devolved by inheritance on a person who would not have succeeded to it had the adopted son been alive on that date, (b) entitling the adopted son to challenge the alienation of the estate, before adoption, by a limited owner such as a widow or a mother then "intitulo" if it was not one which was binding on the estate, (c) disentitling the adopted son on the strength of the principle of relation back, to challenge the alienation made prior to the adoption by a person "intitulo" who was competent to dispose of the properties absolutely. This question did pale into insignificance consequent to the coming into force of the Hindu Adoption and Maintenance Act, 1956. Proviso(c) to Section 12 of the said Act in unambiguous terms states that the adopted child shall not divest any person of any estate, which is vested in him or her before the adoption.
12. In this appeal, the argument for the adopted son who is the appellant is that from the date of adoption i.e. 13.6.1951, he occupies the place of a natural son, and a natural son in the case of ancestral property becomes a co-sharer with his adoptive father, who died on 17.6.1930, with the rights of survivorship and of partition to the whole ancestral property. The Will dated 13.6.1930 of the adoptive father, according to the appellant, is incompetent as the testator had no full power of disposition over the ancestral properties and therefore, the subsequent adoption by the widow, empowered to do so under the Will, cannot affect the rights of the adopted son.
13. In order to appreciate the contentions advanced, it is necessary to sift the case law on the point. The earliest being the decision of the Privy Council in the case of Krishnamurthi Ayyar v. Krishnamurthy Ayyar and Anr. AIR 1925 Madras 932 The facts of the said case though not identical in all respects to the facts of the present case, one of the points that fell for consideration in that case was whether the Will taken along with the deed of consent, is binding on the appellant therein so as to cut down what would have been his rights had he been a natural instead of adopted son. It was contended that an adopted son from the moment of adoption occupies the place of a natural son and a natural son, in case of ancestral property, becomes a co-sharer with his father, with the right of survivorship and of partition as to the whole ancestral property. While answering the said question the Madras High Court undertook survey of earlier decision having bearings on the point. His Lordship Viscount Dunedin summed up the position thus:
"It will be apparent from this examination that it is not possible to reconcile all the decisions, and still less the reasons on which they have been based. Their lordships will, therefore, examine the matter on principle. When a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no right of a son who is subsequently adopted can affect that portion which is disposed, of. The same is true when the disposition is by Will and the adoption is subsequently made by a widow who has been given power to adopt. For the Will speaks as at the death of the testator and the property is carried away before the adoption takes place."
(emphasis supplied)
14. In Dowager Rani Lalitha Kumaridevi and Ors. v. The Raja of Vizianagaram and Ors., Venkatarama Ayyar J., in his separate Judgment after having examined several judicial dicta, followed the principle enunciated in Krishnamurthi Ayyar's case ((Supra) AIR 1925 Madras 932) and disapproved the opinion of Philips offg, C.J. in Sukhdevdoss Ramaprasad v. Mt. Choti Bai, AIR 1928 PC 118(E) : 27 MAD LW 145 in which case one Govardhan Doss Motha had bequeathed his properties absolutely to his widow. She then adopted a son and one of the questions considered was whether the adoption had the effect of diversting the estate which had vested in her under the Will of her husband. Philips offg. C.J. took the view that it did have that effect. He referred to the principle that when a widow made an adoption her estate was divested and referred to the following observations of Lord Kingsdown in Mt. Bhoobun Mayee Debia v. RAM Kishore Achari Chowdhry, 10 Moo Ind App 279:
"If Bhowanee Kishore had died unmarried his mother Chandra Bullee Debia would have been his heir, and the question of adoption would have stood on quite different grounds. By exercising the power of adoption she would have divested no estate but her own and this would have brought the case within the ordinary rule."
He accordingly held that the same principle must apply when the widow was in possession of her husband's properties though it be under his will and though the interest conferred on her was absolute estate. Venkatarama Ayyar, J. while disapproving the above opinion of Philips offg. C.J. observed thus:
"With great respect this proceeds on a misconception of the principle on which divestiture of estate on adoption rests. The result of the adoption is to constitute the adopted son as heir to the adoptive father as on the date of his death and that legal fiction enables him to divest all estates which had vested by inheritance in persons who would not have been entitled to inherit if he had in fact been in existence on that date. This rule has no application to estates which had not devolved by inheritance. Even the adopting widow would not be divested of her separate and stridhanam properties by reason of the adoption. Even an aurasa son would have no claim to them and the adopted son could not be put in a better position. The properties which the widow got under the will of her husband were her absolute properties and her title to them is not as heir of her husband but as legatee under the will. That was the view taken by Reilly J. in the same case. He observed.
"It has been recognised clearly by the Privy Council in 'AIR 1927 PC 139 (D)' that: when by his will the husband has disposed of part of his property, that disposition cannot be affected by the adoption of a son after his death and a similar legal effect must follow in my opinion, from the disposition by will of the whole of his property, which in that case cannot be affected by a subsequent adoption. So far as I can see, there is no legal principle on which, an absolute estate created by the husband's will in favour of his widow or any one else can be divested by a subsequent adoption, unless we can treat the adoption as so relating back to the lifetime of the husband as to destroy in respect of ancestral property his power of disposition by will, a view which the opinion expressed by the Privy Council in 'AIR 1927 PC 139 (D)' precludes us from taking."
15. Venkataram Ayyar J., in the same judgment, also disapproved the opinion of Philips J. and Srinivas Ayanagar J. in Erram Reddy Chenchu Krishnamma v. Maram Reddy Lakshminaryana and Anr., AIR 1928 MAD 271 (F) in which case the testator had bequeathed his properties absolutely to his widow and by the same will conferred on her a power to adopt and in pursuance of the authority, the widow had made an adoption and the adopted son claimed the properties which had been bequeathed to her by virtue of his title as an adopted son. It was held by Philips and Srinivas Aiyangar, JJ., that the adoption divested the widow of the properties which she had got under the will.
16. The Full Bench of this Court in the case of Chikkawwa, (supra) in which a widow of a predeceased co-parcener of a joint Hindu family had made an adoption in pursuance of an authority given to her by he husband, after the family property passed by inheritance to the heir of the sole surviving coparcener. The question that fell for decision was whether the adoption relates back to the death of the adoptive father and divest the estate vested in the heir of the last surviving coparcener. The Full Bench having considered all earlier judgments which had bearings on the decision-making overruled the law laid down in Sankaramma v. Krishna Rao (1938) 4 Mys. H.C.R. 415 and Dasappa v. Seshagiri Rao (1938) 43 Mys HCR 438 and followed the decisions in Anant Bhikkappa v. Shankar Ramachandra 1943 PC 196 AIR; Shankarlingam Pillai v. Veluchami Pillai 1942 Mad 338 AIR and Shankarlingam Pillai v. Veluchami Pillai, 1943 MAD 43 AIR and held that after the death of the last surviving coparcener in a joint Hindu family, the family property passed by inheritance to his heir and subsequently if the widow of a predeceased coparcenor makes an adoption in pursuance of an authority to adopt given to her by her husband, the adoption dates back to the death of the adoptive father and with have the effect of divesting the estate vested in the heir of the last surviving coparcener, or any person claiming under such heir and vesting the property in the adopted son subject to lawful alienations made, in the meantime by the persons who are entitled to hold the estate until adoption.
17. The above opinion of the Full Bench of this Court is grounded on the notion that among the Hindus, that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son and that, whenever an adoption may be made and whatever the interval may be between the death of the adoptive father and the adoption, there is no hiatus in the continuity of the line of the adoptive father. In the case of Shankaramma (supra ((1938) 4 Mys. H.C.R. 415)) Reilly, J. held that, though the adoption was valid, it did not give the adopted son any right to any share in the property of the joint family which had come to an end before the adoption was made. In the case of Dasappa (supra (1938) 43 Mys HCR 438) where after the death of a male son in a joint Hindu family, an adoption was made by a widow of a predeceased brother of the last male owner, it was held that the adoption was valid, but it could not divest the property which had already devolved on a collateral heir of the last male owner, by inheritance, after the extinction of the coparcernery.
18. In the case of Ananth Bikkappa (Supra (1943 PC 196 AIR)), one Punnappa and Hanumappa were brothers who got separated in 1857. Narayan, a son of Punnappa separated from Punnappa in the latter's lifetime taking two plots of land, part of the suit claim. Punnappa died in 1901 and Gundappa, another son of Punnappa died in 1902, so that in 1905, Bhikkappa, the third son of Punnappa and his minor son Keshav were the only coparceners in the joint family in 1905, Bhikkappa died leaving his widow Gangabai and his son Keshav in 1908. Narayan died and his widow having remarried soon thereafter, the two plots which were his separate property devolved on Keshav. In 1917, Keshav died unmarried and a remote collateral Shankar (a grandson of Hanumappa) took possession of the suit properties. In 1930, Gangabai adopted Ananth and in 1932, brought a suit as his next friend of her adopted son. Their lordships of the Privy Council differed from the decision of the majority in Bhalu Sakharam v. Lahoo Sambhaji, (1937) BOM. 508 ILR : 1937 BOM. 279 AIR and held that the adoption being valid, cannot be refused effect.
19. The Full Bench in the case of Chikkawwa (Supra (The Mysore High Court Reports, Vol. 54 Page 12)) was guided by the following observations in Mt. Draupadi v. Vikram Krishna, (1938) Nag. 423 AIR wherein it was held thus:
"A person in whom the property is vested after the death of a sole surviving member of a joint family, takes it subject to defeasance in the event of an adoption by the widow of a predeceased member of the quondam joint family. The defeasibility of the vesting of such an estate is implicit in the very fiction that a widow is the surviving half of the husband. The husband becomes fully alive, for juridicial purposes, in the form of the adopted son on the well recognised vedic doctrine 'the father is born as the son".
20. The Full Bench has quoted the following observations of Messrs West and Buhler in their Digest on Hindu Law with approval:
"The Hindu law do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible."
21. Furthermore, the Full Bench referred to the following observations of Pandit Rajkumar Sarvadhikari in his Tagore Law Lectures on The Principles of Law of Inheritance' II Edition at Page 421:
"An adopted son has all the rights of a son born. It appears abundantly clear from both Dattaka Chandrika and Dattaka Mimamsa that the position and status of an adopted son are precisely the same as those of a natural born son, except in a few instances, which are expressly enumerated."
22. In the case of Shankarlingam Pillai (Supra 1942 Mad 338 AIR), where the adoption was made by the widow of a predeceased coparcener after partition amongst the surviving coparceners, the question was, whether the adopted son was entitled to reopen the partition? After a detailed examination of the case law on the said point including the decisions of the Full Bench in the case of Balu Sakharam (Supra ((1937) Bom. 508 ILR : 1937 Bom. 279 AIR)) and the decision of the Privy Council in Amarendra Mansingh v. Sanatan Singh, (1933) 12 Pat. 642 and Vijay Singhji Chhatrasingji v. Shivsangji Bhimsangji, (1935) 62 I.A. 161 the Full Bench held that an adopted son must be deemed to be a posthumous son for the purpose of inheritance as if he existed on the date of death of the adoptive father and a partition made by the coparceners of his father before adoption can be reopened. However, it was clarified that though the title of the adopted son dates back to the death of the adoptive father for inheriting or taking his adoptive father's estate, the only limit to his right to succession is that he takes the estate subject to the disposition made within the competency of the person who was entitled to hold the said estate until his adoption. The law laid down in Shankaralingam Pillai's case (Supra 1942 Mad 338 AIR) was approved in a Letter Patent Appeal by the Full Bench of the Madras High Court in the case of Shankarlingam Pillai's case (Supra 1943 Mad 43 AIR). In the case of Ananth Bhikkappa (Supra 1943 pc 196 AIR), the Privy Council overruled the Full Bench decision of the Bombay High Court in Balu Sakhram's case (Supra 1937 Bom/ 508 ILR : 1937 Bom. 279 AIR), while disapproving the decision in Shankaralingam Pillai's case (Supra 1942 Mad 338 AIR) and observed thus:
"What principle requires that the death of the last surviving coparcener should prevent any further fluctuation of the interest to which he was entitled notwithstanding that a new male member has since then entered the family by adoption?"
23. A three-Judge Bench of the Supreme Court in Srinivas Krishnarao Kango v. Narayan Devji Kango and Anr., having examined earlier judicial pronouncements of the Privy Council on the question which formed the basis of the decision in Ananth Bhikkappa's case (Supra 1943 pc 196 AIR), held that the said Judgment, insofar as it relates to properties inherited from collaterals is not sound and in respect of such properties, the adopted son can lay no claim on the ground of relation back.
24. The Division Bench of this Court presided over by S.R. Das Gupta C.J. and B.B. Kalagate J. in the case of Somashekharappa v. Basappa Channabasappa Shettar and Anr., AIR 1961 Mys. 141 referring to a host of decisions of the Privy Council, other High Courts, as also, the decision of the Supreme Court in Srinivas Krishnarao Kango's case (supra ), held:
"The doctrine that the adoption relates back to the date of the death of his adoptive father does not extend to a case where the transfer has already been made either by the sole surviving coparcener or by his heir. When a disposition is made intervivos by one who has full power over property under which a portion of that property is carried away, no rights of a son who, is subsequently adopted can affect the portion which is disposed of."
25. Another co-ordinate Division Bench of this Court, speaking through B.M. Kalagate J., in the case of Ramachandra v. Anusuyabai and Ors., AIR 1969 Mys. 64 though did not make reference to Somashekarappa's case (Supra AIR 1961 Mys. 141), although B.M. Kalagate J., was a member of the Division Bench which decided that case, and following the principles laid down by the Privy Council in Krishnamurthi's case (supra) held thus:
"45. Therefore, in our view, the contention of the learned Counsel for the appellant that the will made by Krishnaji becomes invalid and the dispositions, made by it cannot take effect, and the plaintiff, as the adopted son, by virtue of the theory of relation back, is entitled to claim the properties of his adoptive father, disposed of by will, cannot be accepted. We, therefore, hold that the dispositions made by Krishnaji by his will are valid and vest his properties in the legatee and the plaintiff takes the properties by his adoptive fater Krishnaji subject to the dispositions made by him by his will."
26. The very same was the view of a three Judge Bench of the Supreme Court in Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar and Ors., wherein His Lordship V.R. Krishna Iyer J., speaking for the Bench, after having extensively considered a long line of decisions, including the observations of the Privy Council in Krishnamurthi Ayyar's case (supra AIR 1925 Madras 932) and the later Division Bench decision of this Court in Somashekharappa's case (Supra 1938 4 Mys. H.C.R. 415) held thus:
"18. We reach the end of the journey of precedents, ignoring as inessential other citations. The balance sheet is clear. The propositions that emerge are that; i) A widow's adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last; ii) Nevertheless, the factum of partition is not wiped out by the later adoption; iii) Any disposition testamentary or intervivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son; iv) lawful alienation, in this context, means not necessarily for a family necessity but alienation made competely in accordance with law; v) A widow's power of alienation is limited and if -- and only if - the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Banaras school; vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue have no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene. Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here."
(emphasis supplied) Thus, a person, who, for the time being the sole surviving coparcerner, is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation made by the coparcener will nevertheless stand, for a son cannot object to alienation made by his father before be would be born or begotten. However, a principle of relating the birth of the adopted son to the last day of the adoptive father's life is put in peaceful existence with the recognition of right lawfully vested on the basis of the realities then existing. The law frowns on the divesting of vested rights and keeping in cold storage or superceded animation normal legal events like competent transfers and collateral succession except when compelled by jural mandate.
27. In view of the authoritative pronouncements of the Supreme Court in Shripad Gajanan Suthankar's case (Supra ILR 1974 SC 878) in respect of adoptions prior to the Hindu Adoption and Maintainance Act, 1956 (for short the 'Act of 1956'), we do not propose to consider the decision in Namdev Vyankat Ghadge and Anr. v. Chandrakant Ganpat Ghadge and Ors., and Sawan Ram v. Kalawanti and Ors., which relate to adoptions after the coming into force of Act of 1956. Thus, we are of the considered view that the opinion of the Full Bench of this Court in Chikkawwa's case (supra The Mysore High Court Reports, Vol. 54 Page 12) to the extent that it is in contradistinction with the decision of the Supreme Court in Srinivas Krishnarao Kango's case (Supra and Shripad's case (Supra ) though not considered by the Supreme Court stands impliedly overruled.
28. It was next contended that the suit immovable properties were joint family properties, being ancestral at the hands of the adoptive father, could not devise by Will, any of the properties or part thereof, as the properties pass by survivorship to other coparcerners on his death when the Will takes effect and there being nothing left upon which it can operate.
29. The fact of the Will of late M.N. Balaraje Urs was probated in C.M. is. No. 70/30-31 and probate granted on 4.4.1931 by a competent Court whereunder Narasaraje Urs, the brother of the testator was disentitled to 1/3 share in the ancestral property, having secured a stipend of Rs. 600/- from the palace, is admitted. The appellant in the course of cross-examination of PW-1 has suggested that Narasaraje Urs was given in adoption to Kantharaje Urs. This suggestion coupled with the admission of the appellant in his cross-examination that at the time of death of the testator, the testator was the only male member in the family, would establish that M.N. Balaraj e Urs was the last surviving coparcener and that he was entitled to absolute rights over the properties bequeathed. In any event, it is not as if Narasaraje Urs or his descendants questioned the disposition of the family properties by Balaraje Urs. Thus the contention of the Learned Counsel for the appellant must necessarily fail.
30. At the time of hearing of this appeal, the appellant filed IA-XIV for amendment of the written statement to contend that the adoption of Narasaraje Urs was void as the said person was aged 27 years on the date of adoption. The accompanying affidavit to the application is berefit of details as to the date of knowledge of Narasaraje Urs being given in adoption, when he was 27 years of age and also the details of adoption etc. Thus, the material particulars are wanting in the affidavit. In the trial, the appellant categorically admitted that Balaraje Urs was the last male survivor of the family. In the written statement, it is made out that the appellant-defendant was a coparcerner along with his adoptive father and therefore disposition of the ancestral property under the Will was incompetent and applying the principle of relation back theory, the defandant is entitled to all the properties of his adoptive father as absolute owner.
31. Even according to the appellant, the adoption was sometime prior to 1930, the year of death of M.N. Balaraje Urs. No one from the lineage of Narasaraje Urs has questioned the adoption nor staked a claim to the properties of M.N. Balaraje Urs or challenged the disposition under the will. The appellant seeks to question the adoption of Narasaraje Urs only to divest the plaintiff of her right to her share of the properties of late M.N. Balaraje Urs through her mother late Smt. Lingajjammanni. None of the descendants of adoptive father of Narasaraje Urs are parties to the suit for partition nor have they claimed any rights over the properties bequeathed. Allowing such an amendment would lead to unsettling the settled rights of the parties and cause grave injuries. It would also undo the admission elicited in the cross examination of the applicant himself. In this view of the matter. IA for amendment of the written statement is rejected.
32. We accordingly answer point No. 1 in the negative.
RE POINT NO. 2:
33. The defence in the written statement is that the suit is barred by limitation. In support of the said contention, the defendant relies upon the entries in the Record of Rights, records of Municipality, Tax receipt and the fact of death of Smt. Lingajjammanni, the adoptive mother in the year 1975, intestate.
34. The defendant, however, admits that the plaintiff, the natural mother, though given in marriage during the year 1935 was residing with her mother, late Lingajjammani until her death in the year 1975 and thereafter, shifted to her 1/3 share of plaint schedule property. It is in the notice dated 5.6.1991 Ex. P3, that the plaintiff has claimed partition and separate possession of her share in the properties.
35. In order to establish ouster in cases involving adverse possession, the defendant has to prove three elements, viz., nec-vi, nec clam and nec precario, in other words, he must show that his possession is adequate, in continuity, in publicity and in extent and adverse to the true owner. How and at what point of time, the defendant started prescribing hostile title, was for him to plead and prove, which in the instant case, he has utterly failed. Mere long possession for a period of more than 12 years by the defendant without intention to possess the suit land adverse to the title of the plaintiff and to the latter's knowledge cannot result in acquisition of title by prescription. Possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possessed the property on behalf of the other co-sharers unless there has been clear ouster by denying the title of other co-sharers.
36. The plea of adverse possession in order to oust the claim of the plaintiff on the basis of being barred by limitation has been held not substantiated and rightly so. The said plea is as vague as it could be. The material on record is both perfunctory and slender to establish a case of ouster by a claim of adverse possession. The evidence would not justify the conclusion that the appellant established ouster of his natural mother from securing her share of property. The finding of the Court below on issue No. 9 cannot be said to suffer either from any legal or factual errors calling for interference. Point No. 2, is accordingly answered in the negative.
37. The appeal fails and is dismissed with costs throughout.