SHRINIV AS KRISHNARAO KANGO v. N 61a)an Devji

Shrinivas Krishnarao Kango v. Nar4pan Derji K ango and Others • Venkaiarama A)!Yar J . .. • . I S1ddopant alias Sadashiv (d. 1899) I Gundo m. Laxmibai (D-5) I Devji m. Akkubai(D-4) (adopted) d. 6-9-1935. I Krishnarao (d. 1897) m. Rukmini (D-6) I Shrinivas (adopted son) plaintiff l I Narayan D-1 I Raghavendra D-2 I Gun do D-3 Siddopant and Krishnarao were members of a joint undivided family. Krishnarao died m 1897 leaving behind a widow, Rukminibai, who is the sixth defend leaving him ant in the suit. Siddopant died in 1899 surviving his son, Gundo, who died in 1901 leaving be hind a widow, Lakshmibai, who is the fifth defendant. On 16th December, 1901, Lakshmibai adopted Devji, who died on 6th May, 1935, leaving three sons, defend ants Nos. 1 to 3, and a widow, Akkubai, the fourth defendant. On 26th April, 1944, Rukminibai adopted the plaintiff, and on 29th June, 1944, he instituted for partition claiming a half share in present suit family properties. Siddopant and Krishnarao represented one branch of a Kulkarni family and were entitled for their share of the W atan lands, to the whole of S. No. 138 and a half share in S. Nos. 133 and 136 in the village of Ukamnal and a half share in · S. Nos. 163, 164 and 168 in the .village of Katakanhalli. The other branch was repre .sented by Swamirao, who was entitled for his half share - • ) 1954 Shrinivas Krishnarao Kango v. Narayan Dtvji K ango and Others. YmkatUTama Ayyar J. 4 SUPREME COURT REPORTS [1955] of the Watan lands, to the whole of S. No. 137 and to a half share in S. Nos. 133 and 136 in the village of Ukarn nal and to a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. Siddopant purchased a house under Exhibit D-36 and lands under Exhibits D-61 and D-64, and constructed substantial houses. His grandson, Devji, also built a house. All these properties are set out in Schedules A and B to the plaint, A Schedule consisting of houses and house-sites and B Schedule of lands. these properties were either ancestral, or were acquired with the aid of joint family funds. He accordingly claims a half share in them as representing Krishnarao. the plaintiff's case It 1s In sons. from his The defendants denied Swamirao died about 1903 issueless, and on the death of his widow shortly thereafter, his properties devolved on Devji as his nearest agnate, and they are set out Schedule C to the plaint. The plaintiff claims that by reason of his adoption he has become a preferential heir entitled to divest Devji of those properties, and sues to the alternative, he recover them they had claims a half share in them on the ground that been blended with the admitted joint family properties. the truth and validity of the plaintiff's adoption. They further contended only ancestral properties belonging to family were the Watan lands in the villages of Ukamnal and Kata the purchases made by Siddopant were kanhalli, that his self-acquisitions, that the suit houses were also built with his separate funds, and that the plaintiff was not therein. With reference to the pro entitled to a share perties in Schedule C, they pleaded the plaintiff could not by reason of his adoption divest Devji of the properties which had devolved on him as heir. They denied that joint family properties. those properties had been blended with Both the Courts below have held that the adoption of the plaintiff is true and valid, and that question 1s no longer in dispute before us. They have also held that the purchases made by Siddopant and the houses built by him were his self-acquisitions, as was also house built by Devji. The trial Court held that· the ' ~. • - .... • 1954 Shrinivas Krishnal'a• Kango v. Narayan Det/ji /(an go and Others • Venkatarama AyyarJ. • • S.C.R. · SUPREME COURT REPORTS 5 to a half share in S. Nos. 639 plaintiff was entitled that they belonged and 640 in Schedule A on the ground the High to the family as ancestral properties ; but that had not been· established. · As · Court held regards the properties set out in Schedule C, while trial Court decided the appellant was entitled the Privy Coun them exclusively under the decision of cil in Anant Bhikappa Patil (Minor) v. Shankar Ram chandra Patil( i), the High Court held following a Full Bench decision of that Court in /ivaji Annaji v. Han belonged exclusively mant Ramchandra(2), the plaintiff could lay no claim to to Devji, and the conten them. Both the Courts agreed in negativing tion of the plaintiff that there had been a blending of these properties with In the High Court granted a decree in favour the result, for partition of the admitted Watan of the plaintiff lands, and otherwise dismissed the suit. The present appeal is preferred against this decision. the joint family properties. firstly because The first contention that has been urged on behalf of the finding of the Courts below the appellant 1s that the properties purchased by Siddopant and houses constructed by him and Devji were self-acquisi the burden was tions, is erroneous, they were wrongly cast on the plaintiff of proving that made with the aid of joint family funds, and secondly tendered because certain documents which had been in evidence by the plaintiff had been wrongly rejected the argument as inadmissible. On the first question, the family admittedly pos of the appellant is that as the ancestral sessed nucleus m it must be pre W atan lands of the extent of 56 acres, the name standing sumed that of Siddopant were made with the aid of the defend family ants who claimed the aid of joint establish that they were made without the evidence adduced by them fell family funds, in favour· of far short of it, and that the plaintiff stood unrebutted. For deciding whether this contention is well-founded, it is necessary to see lay on they were self-acquisitions the burden income-producing the acquisitions the presumption funds, (1) 70 I. A. 232. (2) I. L. R. 1950 Born. 510. 1954 Shrinivas Krishnarao Kango v. N atayan DevJi Kango and Others. V enkatarama Ayyar J. 6 SUPREME COURT· REPORTS [1955] what the findings of the Courts below are regarding ·the extent of were yielding, invested by that were the purchases and house constructions, Siddopant m and the other resources that were available to him. the ancestral properties, the amounts the income long after to belong to the the income which On the question of the nucleus, the only properties which were proved joint family were the Watan lands· of the extent of about 56 acres, bear- ing an annual assessment of Rs. 49. There is no satis- factory evidence about these lands were yielding at the material period. Rukminibai, P. W. 6, and Akkubai, D. W. 1, gave conflicting evidence on the point. But neither of them could have had much of first-hand knowledge, as both of them came the nineties, and into the family by marriage were then very . young. The lessee who cultivated lands of Swamirao, who owned a share in the Watan that of Siddopant and Krishnarao, de- lands equal to the net income was Rs. 30 per annum. ·On posed that a consideration of the entire evidence, the trial Court put the annual income at Rs. 150. On appeal, learned Judges of the High Court were also of the opm10n that the income from the lands could not have been considerable. They characterised the oral evidence of P.W. 6 and D.W. 1 on the point as worthless. They observed that the assessment of less than a rupee per that the lands were of poor acre was an quality. They referred to the fact that both the bro: thers were obliged to go to the State of Hyderabad for earning their livelihood, and that Krishnarao had been obliged to borrow under Exhibits D-89 and D-90 even petty amounts like Rs. 25 and Rs. 10 on onerous ·terms, and they accordingly concluded that the income the lands could not have been sufficient even for main tenance. indication Coming next to the acquisitions, on 21st May, 1871, Siddopant purchased under Exhibit D-36 a house Rs. 200 from his mother-in-law. On 11th May, 1885, he purchased under Exhibit D-61 S. No. 23 . Ukamnal village for a sum of Rs .. 475. On 23rd July, 1890, he pu~- chased under Exhibit D-64 lands bearing S. Nos. 2025 In this suit, we are concerned and 2140 for Rs. 2,400. • • ·• .i. 1954 Shrinivas Krishnarao Kango v. Narayan Deqji Kaogo and Othe;s • V enkatarama 4var J. • - - • • $.C.R. SUPREME COURT REPORTS 7 It was argued the constructions, and only with S. No. 2025. Apart from these purchases, he constructed two houses, one on S. Nos. 639, 640 and 641, and another on S. Nos. 634 and 635. D. Ws. 2 and 3 have deposed that these constructions would have cost between Rs. 20,000 and Rs. 25,000, and both the Courts for the this evidence. have accepted these witnesses had no first-hand know appellant that ledge of their evidence could not be accepted as accurate. But making all allowances for inexactitude, there cannot be any doubt that the buildings are of a substantial character. After 1901, Devji built a house on S. Nos. 642, 644 and 645 at a cost estimated between Rs. 2,000 and 4,000. Thus, sums amounting to about Rs. 30,000 had been invested in the acquisition of these properties and construction of the houses. Where did this money come from ? The evidence is that Siddopant was a Tahsildar in the State for a period of 40 of Hyderabad, and was years before he retired on pension. Though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. The that having lower Courts came to the conclusion gard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former could not be held to be the foundation for the latter, and on the authority of the decision of the Privy Council in Appalaswami v. Suryanarayanamurti(1) held that the the plaintiff of lay on the properties of which a division was establishing that claimed were joint family properties had not been dis charged. The law was thus stated in that case : initial burden which in service to the presumption "The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was it is established joint to establish the fact. But where that the family possessed some joint property which its nature and relative value may have formed the n1Jcleus from which the property m question may (1) I.L.R. 1948 Mad. 440 at 447, 448. 1954 Shrinivtu Krishn"arao Kango v. · Nar41an Devji Kongo and Ot4efs. Venkatarama . AyyarJ. 8 SUPREME COURT REPORTS .[1955] the burden . shifts to the· party have been ·acquired, alleging self-acquisition the property was acquired without the aid of the joint family property : See Babubhai Girdharlal v. Ujamlal Hargovandas (' ), Venkataramayya v. ) Vythianatha v. Varadaraja (3 )." to establish affirmatively Seshamma( 2 It is argued for the appellant that in that case the father had obtained under the partition deed, Exhibit that he acquired A, properties of the value of Rs. 7,220, that never properties of the value of Rs. 55,000, and theless, it was . observed by the Privy Council that "the the appellant of the property under acquisition by Exhibit A, which as between him and his sons was the appellant (the father) the burden of proving the property which he possessed at the time of the plaint was his self acquired property" ; and that therefore on proof that there existed ancestral lands of the extent of 56 acres, the burden was shifted on tht defendants to esta blish self,acquisition. family property, cast upon to consider the nucleus yields. A building in Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is · one of fact depending pn the nature and the extent of the nucleus. The important thing income which occupation· of the members of a family and yielding no income could not be a nucleus out of which acquisitions · could be made, even though it might be of considerable value. On the other hand, a running business in which the capital· invested is comparatively 'small Il}ight con ceivably produce substantial income, which may well form the foundation of subsequent acquisitions. ·These are not abstract questions of law, but questions of fact to· be"determined on the ·evidence the case. In Appalaswami v. Suryanarayanamurti('), the nucleus of Rs. 7,220 included 6/16th share in a rice mill and . outstandings of the value of Rs. 3,500, and as acquisitions in question were made during a "period of (3) I.L.R. 1938 Mad. 696. (4) I.L.R. 1948 Mad. 440. (t) I.L.°R. 1937 Bom. 708. (•) I.L.R. 1937 Mad. 1012. . .• • ' ....... • • • I. - S.C.R. SUPREME COURT ·REPORTS 5 I 9 the finding of the Courts therefor. But joint . family income 16 years it was possible in the present might have contributed case, is that the income from the lands was not sufficient even for the maintenance they were right in hold of the members, and on initial the plaintiff had not discharged . burden which lay on him. But even if we are to accept the contention of the appellant that on proof of existence of the W atan lands the burden had shifted on to the defendants that the acquisitions were to prove made without the aid of joint family funds, we must hold on the facts that that burden had been discharged. In Appalaswami v. Suryanarayanamt1rti( 1 holding the burden of provmg that the father had discharged that the acquisitions were his own, the Privy Council observed: ), in 1954 Shrinivas Krishnarao Kango v. Narayan Devji Kango and Others • Venkatarama .dyyar J. the appellant m from the property and the property ac "The evidence establishes that quired by the appellant under Exhibit A substanti ally intact, and has been kept distinct. The mcome derived the small sum derived from the sale of part of it have been properly applied the expenses of the family, and there is no towards evidence from which it can be held the nucleus of family property assisted acquisition of the properties specified in the schedule to the written statement." Likewise, in the present case all the ancestral W atan lands are intact, and are available for partition, and the small income derived from them must have been the maintenance of the members of the utilised for family. Whether we hold, as did learned Judges of the High Court, that the plaintiff had failed to dis the burden which lay on him of establishing charge sufficient nucleus, or that the defendants had discharg the acquisitions .ed the burden of establishing 'were made without the aid of joint family· funds, result is the same. The contention of the appellant the findings of the Courts below are based on a mis taken view as to burden of proof and are m con sequence erroneous, must fail. (1) I.L.R. 1948 Mad. 44,0. 1954 Skrinivas Krishnarao Kango v . Narayan Devji Kango and Others. .. Venkataramo Ayyar :J. l'J.0 , SUPREME COURT REPORTS [1955] reference accepted. These documents are It was next contended that certain documents which we~e tendered in evidence had been wrongly rejected by the finding of self-acquisi the Courts below, and that those documents tion reached without should not be ments in two suits for maintenance instituted by Ruk minibai in the Sub-Court, Bij apur, C.S. No. 445 of 1903 and C.S. No. 177 of 1941 and in appeals therefrom, C.A. No. 5 of 1905 and C.A. No. 39 of 1942 respectively in the District Court, Bijapur. These documents were July, 1946, produced before the trial Court on 17th along _with _28 other documents when the hearing was rejected. On appeal, deal about to commence and were ing with the complaint of the plaintiff that these docu ments had been wrongly rejected, the High Court observed: -~- .. > r •• ---- "Apart from the fact that The argument of the appellant these documents were produced at a very late stage of the case .......... these judgments could have been admitted in evidence only if they could be shown to be relevant under any of the sections 40 to 44 of the Indian Evidence Act. None of these sections applied in this case. The trial Judge was, therefore, right in not admitting them in evidence." ments are admissible under section 13 of the . Evidence Act as instances in which there was an assertion joint family. For the suit properties belonged to the the respondents, the dispute bet it is contended that ween the parties in. those litigations was only about the quantum of maintenance to be awarded, that no question involved, and of title to that section 13 was accept. this contention. The amount of maintenance to be awarded would depend on the extent of the joint family issue was actually framed on that properties, and an there was a prayer that the main question. Moreover, the family properties, tenance should be charged on and the same was granted. We are of opinion the jud gm en ts are admissible under section 13 of the Evidence Act as assertions 'of ·Rukminibai the properties now m dispute belonged. to ~-"" r(.;.i;;.:.:J family. inapplicable. We are unable the properties was directly .. - . ' 1954 Shrinivas Krishnarae Kango v. Narayan Devji Kan go and 0 tilers • V enkatarama AJyar J. S.C.R. SUPREME. COURT REPORTS 11 in the It was contended by But there is another difficulty in the' way of the recep res• tion of this evidence. pondents on the basis of the observations ment of the High Court already extracted that the real ground of rejection was that the documents were pro rejecting the duced late. The order of the trial Court document has not been produced before us. But is on the record a petition filed by the plaintiff on 25th July, 1946, after the evidence was closed and before for the admission of the 32 arguments were addressed, documents rejected on 17th July, 1946, and therein it rejected on the ground is stated that "they have been of late production." The defendants endorsed on petition that if the documents were to be admitted at that stage, an opportunity would have to be given to trial would have to them to adduce evidence and the be re-commenced ; and the prayer for admission of these documents was accordingly opposed. The Court dismissed the petition. The rejection of the documents was therefore clearly made under Order XIII, rule 2, and there . are no grounds for now setting aside order and reopening the whole case. This ground of objection must therefore fail. lands which are admittedly Apart from the Watan the purchases made under ancestral, and apart from Exhibits D-36, D-61 and D-64 and the houses which we have held to be self-acquisitions, there are certain plots mentioned in Schedule A in which the plaintiff claims a half share. These are the sites on which the houses the plaint have been constructed. The contention of iff is that Court held that in the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral, and on that ground, decreed to· the plaintiff a half share in S. Nos. 639 and 640. The High Court reversed this decision observing the evidence relating to the house ·sites generally that was not clear, "when they were acquired or by whom", and that in the absence of evidence showing that they they ni.ust formed part of the joint family · properties, be held to be self-acquisitions. With respect; we are to agree with 'this view. While . it. is· noi: unable they are ancestral properties. The 2-86 S. C. India/ 59 - ) 1954 Shrinivas KrishnarilO Kango v. Nat~an Dtvji :Kango and Others. Vmkalarmn12 A'JM J. 12 SUPREME COURT REPORTS (1955] unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be evidenced by a deed. When, therefore, in the possession of a a property. is found to have been family from time immemorial, it is not unreasonable presume that it is ancestral and the burden on the party pleading self-acquisition to establish it. to throw for which no the grantee was the properties comprised the properties comprised the Government· It is necessary in this view to examine the evidence title deeds relating to the several plots have been produced. S. Nos. 634 and 635 form one block, on which one of the houses has been constructed. The sanads relating them are Exhibits D-45 and D-46, and they merely recite occupation of the plots, and that was confirmed. There is reference in them to a previous patta granted by Government. Exhibits 52 to 55 are pattas showing therein had been acquir If the identity of S. Nos. ed from 634 and 635 with in these documents had been established, the plea that they are not ancestral would have been made out. But that has in favour of their not been done, and the presumption being ancestral property stands unrebutted. The claim of the plaintiff to a half share therein must be allowed. form one block, on which S. Nos. 639, 640 and 641 there is another house standing. There is no title deed for S. No. 639. Exhibit D-47 is for S. No. 640, and it merely recognises the previous occupation by the grantee, and that is consistent with its character the sanad for as ancestral property. Exhibit D-48 S. No. 641 and is in the same terms as Exhibits D-45 and D-46. The claim of the plaintiff with reference to all these items must be upheld. We have next S. Nos. 642, 644 and 645, on which Devji constructed a house. respectively Exhibits D-49, The those .of D-50 and D-51. Their contents are similar to Exhibits D-45 and D-46, and for reasons, the same to .the joint family. these plots must be held to belong We have next S. No. ·622 on which there stands a house. this was purchased It is clear from Exhibit D-43 that by Devji at a Government auction in the year 1909. lay no claim to it. Then there is The plaintiff can relative sanads are the sanad • ·- • 1954 Shriniv11S Krishnarao Kango v. Narqyan Devji Kango and Others. V•nkatarama AyyarJ. .} • ... - • S.C.R. SUPREME COURT ;REPORTS 13 S. No. 643. The oral evidence relating to this is that a It cannot be partitioned. family temple stands on it. In the result, it must be held the plots, S. Nos. 634 and 635, S. Nos. 639, 640 and 641 and S. Nos. 642, 644 and 645 are ancestral properties, and therein. As sub plaintiff is entitled stantial superstructures have been put thereon, to be granted appropriate relief is that the value of those plots as on the date he be given half of the suit. to a half share to the plaintiff ) It remains to deal with is that on adoption the claim of the plaintiff for possession of C Schedule· properties on the ground by adoption he became the preferential heir of Swami rao and is consequently entitled to divest Devji and hi~ successors of these properties. The contention of appellant based on the decision of the Privy Council in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (1 the adopted son acquires all the rights of an aurasa son, that relate these rights back to the date of the death of the adoptive father, and that in consequence his to share in the joint family properties and the collaterals should both be worked out as from that date. The contention of the respondents based on Jivaji Annaji v. Hanmant Ramchandra(2) is that the doctrine of rela to properties which are tion back does not extend inherited from a collateral. The question raised 1s one of considerable involves a importance, and decision as to the correctness of the law as laid down in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil ( ). to inherit from Considering the question on principle, the ground on which an adopted son is held entitled to take in defeas ance of the rights acquired prior to his adoption 1s that in the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son. As observed by Ameer Ali J. in Pratapsing Shiv sing v. Agarsingji Raisingji( 3 ), (1) 70 I.A. 232. (2) I.L.R. 1950 Born. 510. (3) 46 I.A. 97 at 107. 1954 Shrinivds Krishnarao Kango v. Narayan Devji Kango and Others. Venkatarama AyyarJ. 14 SUPREME cbtJRT REPORTS [19551 _; so ·far as' ·"Again" it" is'• to he ren'lembereil that<an adopted' son is •the' continuator· .. of·his adoptive ·father's' lirie ex~dly as an aurasa ·son, and · that' an adoption; continuity of the line 'is concerned, . has' a retrospective effect ; 'when ever the adoption ' may be made'. there In· fact, as no hiatus the continuity' of the West and Buhlet point out in their learned 'treatise on Hindu Law, the Hindu lawyers do not regard the male line to be extinct' or a Hindu to have died wi'thout inale issue until the death of the widow renders the continua tion of the line by adoption impossible." line. in· If a the estate. It is oh this principle to divest her of· the estate. · It is· on the that when a widow succeeds to her husband's estate as · heir and then makes an adop tion, the adopted son is ·' held entitled, ·as preferential heir, that ~hen a s011 dies u_nmarried · and his principle mother succeeds to his estate as his heir; · and makes ·an adoption to ·her husband, that 'adopted is held · entitled (Vide to divest her of Vellanki Venkata v. Venkatarama ( 1 ) and Verabhai v. Bhai Hiraba( 2 ). The application of this principle wheff the adoption was made· to a deceased coparcener raised questions of some difficulty. family con sisted of two brothers A and B; and. A died leaving a widow W and the ·properties were taken by survivor ship by • B, and then W took a boy X in adoption, the question was whether son could claim a the adopted half share in 'the estate to which' A was entitled. It was answered in the affirmative on the · ground that his adoption · related back to the date of the death of A. But suppose before W makes an adoption, B dies ing ·no .. son but a· widow· C and· the estate. ·devolves on her; can .w thereafter make· an adoption ·so as to con 'in the .. hands of C ? fer any ·rights on X to ·the estate ) that the power It was held to make an adoption so· as a• right on tl1e adopted · . .-son . could be exercised only .so long as coparcenary of. "which the· adoptive .father .was a mem ber subsisted, and that when' the.-last of ,the ·coparceners .his died and in Chandm v. Gojarabai ( 3 to confer thereafter devolved on the .. properties (1) 4 I.A. 1. (2) 30 I.A. 234. . (3) rhR. '4 Born. 463. • ~- ·- • Shrinivas Krishnarao Kango v. N ara)'an Devji Kan go and 0 thers. Venkatarama Ayyar J. - - ), S.C.R,.

15. .... must be held .divested. .the adopti_on would heii:, , r the "coparcenary., ,had .. ceased,. tq e;xist, . ,a,114 . tjl.aJ. therefore,. w. co11l<:l. 11<;>,t. adop,t 'so ,a,s., to.' .d.iyest. ,the esta,te which had. .vested .in the l;i,ejr, of the , la.st.cop<1r,cepq .. , II). view of the pronounc;qnen,ts1 .,of the, .Judicial, Committee in Pratapsing, Shivsin,g, v,, 4garsingji Rais.ingji C). ;m,d Am.aren!'fra.,Mansi11gh Y/JSanat(ln .§efngh · (2) that :the validity of an. adoption 9id not .depend o.q .whe~hei: .. th!'! adopted son .c;ould., dive~t: an estate · which ha,d 1deyqlved by inhei:itance . or .nQt, a .Full ,J?ench , ,of,, the,. BoI)lbay High Court held in. Balii Sqkharam, v. iah.oo Samqhaji (3.) that in, such case.s :be,,: vaJi9,:; bcl\t that the .estate, 'Yhic;h had devolved,,. upon the heir.~oµlP, In Ariant ,f3hikappa Pa#l CMitJor): .v. not be Shankar Rarnr:handra._ Patil .{4 .,.the, Privy,, Council-... div sented: from this view, · and b;e~9· that, the,.copan:,enary as. . there, wa~ jp., exist ence : a widow of a, : cpparc.ener . ,capa,ble of . , bring "ii son .. into existence by adqption,, and if sh~ ma,de ~n the rights of. the adopted. son :would l;ie Ahe adoption, same as if he had been ~n existence at. time when his adoptive Jathei; died, . ~n<:l that, :his . title ·<J.1i '. .copaF cener would prevail as against the title of any person 'In · ·subsfance, claiming as' hei'r "of· the. last·· toparcener. the estate in the hands !of such heir 'w'as treated as . im the 'character of< fopaicenaiy pi;opetty : so pressed with long as . there was a 'widow : alive who .· could' 'niilke an adoption. This principle was re-affirmed in Neelangouda Limbangouda · v. Ujjai'n. Gouda (5). · .to . : subsist' so loI).g · · ·: ·' ) It applies only when Thus .··far, "th~ ;~ope of. the prillclp1e. of rdatio~ . back is clear. the claim made by the adopted· son relates to-the estate of his adopti·ve father. This estate may" be·· definite and ·ascertained -as when he is the sole· . and absolute. · owner of the properties; or it may -be fluctuating as' when he is. a member 1 ·of ·a joint Hindu family, 'in which the interest of the cnpar ceners ·by death or. decrease·· by birth. In either· case;. it' is . the >interest of the . adoptive father which the adopted son . is · declared · entitled , to take · as · 'on the date· of his death. The point "tor " ' ·(4) fo LA: 123cl.i · .. ":.'' -' " (:,).'A.LR. :i948•P,C:16s::50 Bom:1L.R;·63~', 1 ' to increase liable · .. (1) 46 LA. 97. (2) So LA. 242.r (3) I.L.R. 1937,lloJ111508. :. . .; ._. ·; · ··' · •

1954. Shriniuas KrUhruriao Kango v. N ar41an Devji· Kango and Others. Y enkatarama AyytJT J. 16 SUPREKiE I COURT 'REPORTS. [1955], J, the word . "collateral" detetniination now is · whether this doctrine of relation back can be applied when the· daim made by the adopt ed son relates not to the estate of his ·adoptive father but of a collateral. The theory on which this doctrine is there should be no hiatus in the continuity based is that of the line of the adoptive father. That, by its very nature, ·can apply only to him and ·not to his collaterals. the Oxford Dictionary In defined · as meaning "descended from the same stock but not in ·the same line." The reason behind the rule that there should be continuity in line does not warrant its · extension to collaterals. Nor is there any authority in Anant Bhikappa Patil until we come to the decision (Minor) v. Shankar Ramchandra Patil('), which applied the theory of relation back inherited from collaterals. With the govern that · inheritance can never be in ing principle was abeyance, and that once it devolves on a person who is the nearest heir under the law, thereafter not liable to be divested. The law is thus stated in Mulla's Hindu Law, 11th Edition, at pages 20 and 21 : reference to them, ·to the properties uon the death of a Hindu, the pers~n who is then his nearest heir becomes entitled to the pro perty left by him. The right of succession vests in him immediately on the death of the owner of the property .. It .cannot ilnder any circumstances in abeyance in expectation of the birth . of a preferential heir where su.ch heir was not conceived . at the time of the owner's death. ·at once remain "Where the estate of a Hindu has vested in a person who is his nearest heir. at the time of his death, it cannot . : be divested except either by the birth of a preferable heir such, as a son or a daughter, ·Who was· conceived, at time of his . death, or by adoption in . certain cases.of a son to'the deceased." .. In.' Bhubaneswari .. Debi'v. Nilkomul Lahiri( 2 facts were·,, that .Chandmoni,. the .. widow of one Ram mohun, ... died' on . '15th June,. 1867, and , the estate devolved on his nephew; Nilkomul as reversioner. the widow . of a Subsequentlyr .. Bhubaneswari' Debi, ), (1) 70 I.A. 232. (2) 12 I A. 'lg7. ;i . .- ,.- • S.C.R. SUPREME COURT REPORTS 17 in adoption, and took a boy, brother of Rammohun called Sibnath, the suit was by him for half Jotindra, If his adoption could relate back a share in the estate. to the date of death of Sibnath, which was on 28th May, Jotindra would be entitled to share the inherit 1861, ance equally 'with Nilkomul. That was the argument (Vide page 139). put forward in support of his claim. In negativing .contention, Sir Barnes Peacock observed:- 1954 SlwinivGS Krishnar1111> Kango v. Nart;Yan D"lfi Kang• and Othm. V enkatarnma A»m]. to the "According in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral." law as laid down It is true that reference is also made to the fact that the boy adopted was· not actually in existence on the date of the death of Chandmoni ; but that, however, would make no difference ··in the legal position, if the principle of relation back was applicable. One of the Privy Council had in mind was Kally cases which Prosonno Chose v. Gocool Chunder Mitter( 1 ), which was relied on in the High Court. Vide Nilkomul Lahuri v. it was held that an Jotendro Mohan Lahuri( 2 adopted son could not claim the estate of· his adoptive father's paternal uncle, which had devolved by inherit In 1888 Golapchandra ance pnor Sarkar Sastri observed in his Tagore Law Lectures on the Law of Adoption : to his adoption. ). There, "As regards collateral succession opening before adoption, it has been held that an adoption cannot relate back to the death of the adoptive father so as to entitle the adopted son to claim the estate of a collateral rela tion, succession to which opened before . his adoption." (Vide pages 413 and 414). The law was thus well the properties of a settled person other involved, the principle applicable was not the rule of relatipn back but the rule that . inheritance once vested could no\ he divested . than an adoptive father was that when succession ) -- - " . ,Before examining· the decision in Ana11t ·Bhikappa Patil (Minqr) v. Shankfu Ramchandra Patil( ),. it . is (1) I. L R. 2 Cal. 295, . . ' (2) J.L.R. 7 Cal. 178. ' (3) 70 I.A. 232. 1 s ' 1954 , Shrinivas Krishnarao Kango v. Narayan Devji !fang() and Others. Venkatarama A)!:l'ar]. 18 SW?REME ~OURT rui:P,Q~'.l!S ,0£ necessary to,,. refer .... to.- the .j,~arlier, 1 , ,profjouncfiqJ.en~" of the· l'ri¥y,,Cpuncil, on the quest,ion,,, wh;ich fon,ied .,the that .. , decisi9_n.,, Jn •,Pratapsing, Shivsing. v. Agarsingji Raisingji(.1,} the .• question,1related, ,tp .a.,jivai grant of the village of. ,P.iperia which- had been .. made by the Ru.ler of Gamph :to a: junior member on , ~ondition that in default., . of male, . descen<lants . it should.- ,r~vert to , . The last incumbent,. Kaliansiqg, .died ·issue the thakur. less in October, 1903, leaving him surviving his- widow, Bai Devla: On. 12th March, 1904,. she adopted. Pratap sing Shivsihg. The .thakur. then:.sued .. to' i:eco.ver ,pos session of, the. village.ion the ground. that ,_rhe,.',,adopted son was not a descendant contemplated by the,_. grant, and that ;the adoption was invalid, 1as it · would. divest him of the· village-.wliich had .vested .. in him in Oetober, 1903. With reference to, the1 ,first contention{. tl:ie Judicial that under, .the. Hindu .. Law· an Committee ol;iserved adopted .son was . as .. much a.,descendant as .an (!Urasa son . ., On the se.cond contention,. they , held that ,.the prin ciples laid down in Raghunandha v. Brozo Kishoro.C)·.and Bachoo .. Hurkjso,ndas v. M'ankorebai(~)_ as. to divesting of joint family . properties 'which had vested :.in 'other .. per sons were. applicable, ,. and. that • having regardi.to ,the interval between ·the .,date ·. of: ·the" death" of. Kaliansing and the· ,date> of the adoption l?ratapsing c0uld ... b~ treat ed as .a posfhumous- sqn.. It. will , be • noticed '.thau,; the to succeed to. the village non the thakur did not claim death of Kaliansing. as. his heir but . on: the .... ground of reverter .under,. the, •terms of.•the grant; , and no question of relation.,back of, title .with.·. refereuce 'to .the .. succession of a· collateral's estate was.involved ... : · ... ;·•«• In Amarendt1rM'ansingh ·vc 1 Sanatan Singh(•'), question arose with reference •.fo f a'n' •·impartible · lza'C'in dari known :is· Dompara Raj- in ·Orissar 'The •last 'of its holder, Raja Bibhudendra;' died or:i '-10th· December,''1922, unmarried, and by reason .. c;f a'·family custPrrl' '•which extluded«females' from . ·sucteeditig: to the Raj, "a• colla teral Banamalai succeeded to it. On 18th· December, 1922;» :IridumatiJ the ·mother of· Blbhudehdta, · adbpted Amarendra' t8 her ·'hi1sband; Bfajen'dra. The '·'question . . 1 , • . (1) 46 LA. 97· (2) 3 I.A. 154. (3) 34 I.A. 107? · (4) 60 I.A. 242.. .. ' . ;· • - + - • ' • 1954 Shrinivas Krishntirao Kango v. Narayan Devji K ango and Others. Venkatarama Ayyar J. S:C.R. 19 was whether by hisi ~dopti<;>n Ama.rendra, 1, ;<;:91,1ld.,, divest Banamalai of . the e,Hate., , It w,as. held" by .. ~he , ·l;'ri';Y Council, th~t, the V?lidity of an adoption ,?id pot d~peµd -0n whether. an estate ,<;quid ~e divested or. not, a.t;ld that the point .to be; cpnsidered, was ~h~ther .. the PC?W~I; to adopt had. come to an end by,d~ere haying come into .exi,stence a ~on, , ,who had. attained the, full lega\,, :ca11a city to continue the lin.e. Applying these principles,, 'tl;ie d~cic,led . that . the adoption . .was Judicial Committee valid, and -that Amarendra took the esti\te as the.,. pre ferential heir. . It 'will b~ seen that in this qse po claim o0f the adopted son to succeed to a collater.al . ,was' .. .ifr. far the theory volved, and no question arose as to how ·of relation b"ck ¢ould be invok~d iµ s\.{ppo~t Cit :such ? claim. The estate claimed was that of his . adoptive father, · Braj endia, and if th~ ado'ptiqn '.was 'at . all .• vaHC:l, it related back to the' dat~·· of Brajen'dra's .' death_; 'P,0!nt •enablec,l Amareridra to . divest Banamala'i: The for determination actually was whether by reason of Bibhudendra, having li~ed ,for about 20 year~, tlie power to adopt ' to her husljanq had' co'me 'to an ·of ,his mothq It may be noted that but foi; the· spe¢ial · ·custom end. which ·excluded· women inheriting; 'Indumati f,rom would have' succeeded Bibhudendra as mother~ . ·<ind an adoption l;iy her would divest ··her of the estate and vest it in' Amarendra, and the case. would· 'be goverheC! by the decisions. in Vellanki Venkata v. Venkaiarama( f )'and Verabhai v.: Bhai Hiraba (2). The. orily' differ~nce ~e\­ ween these cases and Amarendra. · Mansingh v. Sana~im S!ng'h(3 ) was that on the death of Bibhudendr'a his heir was riot Iridumati but Banamalai, This deci,sion il:iight be taken at tP,e most to be an authority for the position that when an adoption is made to A, the. adopted ;son is entitled ti;) recover .. the estate of A not. merely .when it' has vested in his widow who makes the. ' adoption but also in any other heir of his. ' It is no authority £of '_the contention. that he is entitled to recover the' e~tate '.of. B which had vested 'iii his heir' prior to his adC?ptioh. io''A. Vijaysingji Chhatrcu,ingji v, Shivsangji Bhims,angji(" ) 'to. the· one in. Amarendra :. M4nsi~gh ,$ingh( a): The property I coric~rned was · : · · .. • · ' "' (3) 60 I.A. 242:· (4) 62 I.A. 161,. ' 1· / · " ' is a .case similar \V, $anatan (1) 4 I.A: i . . ' (2) 30 I A. 234. ' 1954 Shftnivas Krishnarao Kango v. Narqyan· Dez!ii Kango and Others. Venkatai-ama AyyarJ. 20 SUPREME COURT REPORTS [1955] · by the holders of the estate died, and w'as then given away m adoption, and impartible estate. Chandrasangji who was one sue~ son, Chhatrasingji.' Chhattasingji ceeded thereafter the brother of Chhatrasingji, succeeded to. Bhimsangji, the widow of Ohhatrasingji made an the estate·. Then the question· was whether the adopted adoption, and son could divest · the estate in the hands of Bhimsangji. It was held that he could. Here again, there was no question of collateral succession, the point for decision being precisely the same as in Amarendra Mansingh v •. Sanatan Singh( 1 ). lands, In 1908 Narayan, We next come to the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil( ). The· facts of that case were that one Bhikappa died in 1905, leaving him surviving his widow, Gangabai, and an un;. the divided divided son Keshav. brother of Bhikappa died, and Keshav succeeded to· In 1917 Keshav died unmarried,. his properties as heir. and as the properties were Watan they devolved on a collateral, Shankar. In 1930 Gangabai adopted Anant, and he sued Shankar to recover possession of the properties as the adopted son of Bhikappa. The· that as. the joint family ceased High Court had held the proper to exist in 1917 when Keshav died, and as ties had devolved on Shankar as his heir, _the adoption,. though valid, could not divest him of those properties .. The Privy Council held that the coparcenary must be· taken to cqntinue so long as there was alive a widow of the deceased coparcener, and that Gangabai's adoption had the effect ·of ·vesting· the in An:i.nt,. the heir it relates to joint of Keshav. The decision . so far as family properties calls for no comment.. When orice it· is held that the ccipar.cenary there· is a widow cif 'a copaicener alive,· the corich.tsion must· follow that ~e ~doption of Anan~ by Qahgabai · was. valid and 'op.et~ted ~o· yest in hini · 'tjie joint family ,pro- pertie·~ 'which 'haCl 'devolved on Shankar: . Tlieri, ... there i&herited . from were th~' properties w_hich keshav hail, Narayan; wJliCh had· ~!so 'devol~ed . ori Shanbli-l° as his' though it had descended on Shankar as subSists sci long as family estate (1) 60 LA. 24~.' (2) 70 I.A. 232. · ' • 1954 Shrinivas ~KrishnarM Kango v. Narayan Deqji K ango and Others. Venkatarama Ayyar 7. S.C.R. SUPREME COURT REPORTS 21 heir. With observed: reference them, the Privy Council "If the effect of an adoption by the mother of the last male owner is to take his estate out of the hands of a collateral of his who is more remote than a natural brother would have been, and to constitute the adopt• ed person the next heir of the last male owner, no dis tinction can in · this respect be drawn between property which had come to the last male owner from his father and any other property which he may have acquired." On this reasoning it was held that Anant was entitled also to the properties inherited by Keshav from Nara yan. Anant Bhikappa Patil (Minor) v. Shankar Ram chandra Patil (1) must, In our opinion, be taken to decide that the doctrine of relation back will apply not only joint family estate but also pro as regards what was from a perties which had devolved by collateral. Otherwise, conclusion that the personal properties of Keshav which had vested in Shankar in 1917 would re-vest in Anant even though he was adopted only in 1930. The ques tion arises how this decision is to be reconciled with the principle laid down in Bhubaneswari Debi v. Nilkomul Lahiri (2) that an adoption made subsequent to the inheritance death of a collateral does not divest that pnn which had vested prior to that date. That ciple was not is clear from 'the following observations of Sir George Rankin : "Neither the present case nor Amarendra's case(3 intended to be departed from ) brings rule of law considered m Bhubaneswari Debi v. Nilkomul Lahiri (2) (cf. Kalidas Das v. Krisfmachandra Das (') ........ Their LorJships say nothing as to these decisions which appear · to apply only to cases of inheritance." into question inheritance impossible justify it 1s Nor does the dis.cussion In Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil · (1) throw much light on this matter. Consid::rable emphasis is laid ''on the fact that a coparcener has only a fluctuating interest in the· joint· family properties, that it may increase . by death and decrease by birth, and . that such a' qualified (1) 70 I. A. 232 (2) 12 I. A. 137 (3) 60 l. A. 242: . . (4) 2 B. L. R. rn3 F. B.' • · .l 1954 Shrinivas Krishnarao Kanj:o v. Narayan 'nevji Kango and Others. 1 Venkatarama Ayyar :J. 22 SUPREME GQUR'.f, REPORTS• [1955J the . impartible T(enka~ar,c,tma.· ( 3 interest• as ., tliat ,, must. cacrry with .. it . the liabilify to ·he divested by the introduction of a new coparcei:ier 1, by adoption, ., : J'his reasoning, however, is· -wholly: i1iappli cable. 'to .. property. which is, not; held in copaTcen:i.ry, such as •the estate· of. a .. collateral ·devolving by inheritance. The ~udgment then refers .to the decisions of -the •Board in Amarendra Mansingh v .. ·Sanatan.Singh( '.)·and.•Vijay singji Chhatrasingji v: Shivsingji ;Bhimsingji (~), · ... ,.nd it·. :is obser.ved· ·that· . estates "which were ... :concerned· · therein ,. were· .. treated · -as:. separate property ,,.apd . npt ,.a5 joint. ,faJllil)' ,proper~y;- ~" ,con clusjpn which :cJoes.,; n9t se;tle : .the·' queitipn,:, because eve11.1 011; the,. footing . th~.t th<:. estates. wqe .. separ,a;e proVir,tie~, , .IJO, quqtiqn. 0£ .. coUatera)' ;succession' wa.s invo!ve,d, i11: them" ,the; :c1ai,m; .. under Ji\igation '. pejpg in r_espect o,f the,. ,estat~:. pf, the .. adoptiye •,father,. and covered .. by ,the.,prin<;iple_, aln:ady established,:i,n i .,Vell!lriki. ,) and ,.Verabhai y .... Bl:tai Venkata,,,v. Hiraba ( 4 )~ .-phen follows tJ1e ,c0nd"\sions already ,,quqted that ,. no ,dis,tinctjpn · ~ari be. drawn _,between pi:pper(ies "'.hic;h come from the f~ther. and prppeni<;s wJiich,: cwne frqrri. ot11ers.- _This_ is. to ignore .. ti)e principle,; that. th,e doctrine pf refatio11 bac,k ' .bas.eel. on the notipp: of. sol)!i nuity _of ,\i11i; .,cap, .apply . and .had, been. applied; ·only .. to the. estate .• of 'ti)e aqoptive f~ther .. :\nd ;not. of .. collatera!i • . We,rnay now turn to Jivaji Annaj~ v, HqnmC(nt R1tm chandra. ("),. wherein, . tl,i~ scope 9£., the decisi_on in .,4np11t BhikaJ!Prt.: Pa4il, ;(!v.finor) .. , f) • .. Shpnkar., Ra,mchan4ra Patil. ,(") ca11le µp ... for consideratiofl .. ·;· ,There, .the,/ll1ate rial ,facts .. we.re .that.· Ke.shav .<ind. Annappa ;who ,Wfrl" mernb~s ;()~ a joint f.amily ... ~fleeted a.,. par.titipn,, ,,.\and thqe_:Jtt~r; 1}.1.mappa died, leaving, ):iehind ··" widqw, T1,mgabai .. l(~ha.v .•. d\ed ,lea\;ing beh_ind. a ,sop, Vishnu, who died in 1918 without male.is.sµe,, .. ,and: ,tbe pfoper_ty b~i1,1(( ... W~ta':1 Ja~ds .,d~v9lve1, op. ,a, ~o)l)lteral ql,\e?, q~1,1mant1 a~ .~\s .h~!~: .. I~ J922 .'.f11r,gaba1, ~~?P!­ ed J1vai1, The question .wa~ whethe,r he. wa.s entitled to di~~st'. 'ihe"properiie{ ~hi~h ·had ti~i:~m~"veste<l.' in ~annilht'as 'ih( pfefrrel).tiil . h~.ir of.Vishnu; : ;in<l: tlie . detisiOil 'V/a; th~t lie , Woas not.' 'Jt 1WlJ1 I he' riotited" that in. 1901, (lJlj~J /~• "·~ ' ' '•·' ; ; l j . f" • ·.«<•· •' ~ •. ! Pd I,•'> (1) 60 !'.A. 242. (2) 62 I A. 16't.• · (3) 4 I.A. 1. ,,,,:J' , · ,,. , ' ' · ' (4) 30 I.A. 234. (5) l.L.R. 1950 Bom. -510'. · (6) 70 I.A. 232. • · ' ~- j". 1 S~C.R. SUPREME COURT REPORTS 23 1954 Shrinivas Krishnarao Kango v. Narayan Devji Kango and Others. Venkatarama Ayyar J. (Minor) to whom to a collateral received support the ground that ). The contention was v. Shankar they belonged to into which he had been adopted but the adoption was made had at the Annappa time of his death become divided from his brother,. and to adoption by a widow of a the principles applicable It deceased coparcener had therefore no application. was a case in which the adopted son laid a claim to pro perties, not on joint family they belonged to whom he was entitled to succeed as a preferential heir, and it was sought to divest Hanmant of the properties which had vested in him in 1918 on the strength of the decision in Anant Ramchandra Bhikappa. Patil Patil( 1 if Anant could as adopted son divest the personal properties of · Keshav which had devolved on Shankar as his preferential heir, Jivaji could also divest the properties which had devolved on Hanmant as the preferential heir of ::fhe learned Judges made no secret of the fact Vishnu. that tl1is contention from the decision in Anant Bhikappa Patil (Minor) v. Shankar Ram chandra Patil (1) ; but they were impressed by the fact that the statement of the law in Bhubaneswari Debi ) as to the rights of an adopted son v. Nilkomul Lahiri( 2 of a collateral had been reaffirmed, quoad the· estate and . they accordingly held that the decision in Anant Ramchandra Bhikappa Patil( 1 ) did not intend to alter the previous law an adopted son could not divest properties which had inhented from a collateral prior to the. date of the actual decision on adoption. They distinguished that as Keshav .had vested in him both the the ground ancestral propertis inherited from Narayan, and as admittedly there was a relation back ·of the rights of Anant in respect of the ancestral properties, separate properties. But it is difficult respect of the If under the law the to follow this distinction. rights of an adopted son differ according as they relate to the estate of his adoptive father or to property · inherited from collaterals, the fact that both classes of properties are held. . by the same. person can make no differc ence · in the quality of. those rights. The pos~tion will tllere should likewise be a relation back as well as the properties (Minor) v. Shankar Patil (70) I I.A. 232. (2) 12 I.A. 137. -- 1954 Shrinivas Kris'hnarao Kango v. Narayan Devji Kango and :Othtrs. .Vtnkatarama .AJ.Yar ]. 24 SUPREME OOURT REPORTS {1955) be analogous to. that of a •coparcener who has also ·self acquisitions, in which ·case the devolution by survivor ship of joint family· properties does not affect the devo lution by inheritance of the separate properties. (Minor) is entitled the decision The fact is, the question on frankly conceded by ), and as it was an authority binding on they were puzzled by v. is not hampered by any such limitation, and its own merits. to consider to divest learned Judges, in Anant Bhikappa Patil Shank_ar Ramchandra Patil ( 1 Indian Courts, they could not refuse to follow it, and were obliged to -discover a distinction. This Court, how ever, In deciding that an adopted son estate of a collateral, which had devolved by inheri tance prior to his adoption, Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil( 1 ) went far be yond what had been previously understood to be the the principle well faw. It is not in ·consonance with established in Indian jurisprudence that an inheritance could not be in abeyance, and that the relation back of the right of an adopted son is only quoad the estate law as laid down ·of the adoptive father. Moreover, therein leads to results which are highly inconvenient. When an adoption is made by a widow of either a co then the right of the parcener or a separated member, ·adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of Telation back is subject to the that aliena tions made prior to the date of adoption are binding on if they were for purposes binding on the estate. him, Thus, transferees from ibe widows ·or ·coparceners in a joint family, are amply protected. But no such safeguard exists in respect of from a collateral, because if the property adopted son is entitled on the theory of relation back to ·divest the mesne holder would be that of an owner possessing a title .defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons daiming under him. The alienees from him would have no pmtection, as there could be no question of the ground of necessity 5upporting the alienations on limited owners, whether the position of that property, limitation inherited (t) 70 LA. 232. -,... ·~ - 1954 Shrinivas KrishntJ¥(Jf) Kango v. N O¥ayan Devji Kan go and 0 thers. VenkatO¥ama Ayyar]. :S.C.R. SUPREME COURT REPORTS 25 or benefit. And if the adoption 'takes place long after the succession to the collateral had opened-in case it was 41 yea.rs thereafter-and the property might have meanwhile changed hands several times, the title of the purchasers would be Hable to be disturbed quite a long time after the alienations. We must hesitate subscribe to a view of the law which leads to conse quences so inconvenient. The claim of the appellant to fiction, and legal divest a vested estate rests on a legal fictions should not be extended so as to lead to unjust the decision in Anant results. We are of opinion that Bhikappa Patil v. Shankar Ramchandra inherited Patil( 1 ) from collaterals is not sound, respect of such properties the adopted son can lay b.o claim on the ground of relation back. The decision of the High Court therefore be in respect of C Schedule properties must affirmed. in so far as it relates to properties and that in (Minor) - impress them with It was finally contended it. This below have concurrently the defendants had blended C Schedule properties along with the admitted ancestral properties so as family properties. The burden of character of joint proving blending is heavily on the plaintiff. He has to establish that properties as to abandon their separate claim over is a question of fact on which the Courts against there are no grounds for differing from them. In the result, the defendants had so dealt with to show an intention the decree of the lower Court will be modified by granting the plaintiff a decree for half the value of the plots, S. Nos. 634 and 635, S. Nos. 639, 640 and 641 and S. Nos. 642, 644 and 645 as on the date of the decree of the suit. Subject the lower Court is confirmed, and the appeal is dismiss ed. -own costs in this appeal. the parties will bear In the circumstances, to this modification, the appellant, and Appeal dismissed. (1) .7B I.A, 23~. 4