ANANT BHIKKAPPA PATIL, MINOR, BY NEXT FRIEND GANGABAI KOM BHIKKAPPA Vs. SHANKAR RAMCHANDRA PATIL

JUDGEMENT

(1.) The appellant Anant brought the present suit in 1932 to recover certain watan properties from the respondent Shankar to whom possession had been given in 1928 by order of a revenue Court. The properties in suit are the patilki right and the patilki watan lands of the village of Alnavar in the district of Dharwar in the Province of Bombay. These properties are governed by the Bombay Hereditary Office Act (Bombay Act 3 of 1874) as amended by Bombay Act 5 of 1886, which imposes upon them a special rule of succession whereby every female, other than the widow of the last male owner, is postponed to every male member of the watan family qualified to inherit. No other feature special to watan property was relied on or discussed in the Courts in India or mentioned in the printed cases lodged by the parties upon this appeal; and their Lordships are not called upon or prepared to consider whether upon other grounds the law applicable to watandars or watan property varies from the ordinary Hindu law. The family are governed by the Mitakshara and the pedigree table hereunder given represents it sufficiently for the purposes of the case : Dhulappa's sons Punnappa and Hanamantappa separated long ago, in 1857, and the Alnavar watan with its lands went to Punnappa. Narayan, one of his three sons, separated from him in his lifetime taking as his separate share two plots or parcels of land represented by Revenue Survey numbers 1 27 3 and 1 17 4 which are included in the lands now claimed by the plaintiff. Thereafter Punnappa died in 1901 and his son Gundappa in 1902, so that in 1905 Bhikappa and his minor son Keshav were the only coparceners in the joint family. In 1905 Bhikappa died leaving his widow Gangabai and his son Keshav. In 1908 Narayan died leaving a widow but no issue; and the widow having in or about that year remarried, the two plots which were his separate property devolved by inheritance upon Keshav as being his nearest reversioner at the date of the remarriage. Keshav lived till 1917 when he died unmarried. At that date his nearest heir was the defendant Shankar, a somewhat remote collateral, who obtained possession of the suit properties from the Collector in 1928 despite Gangabai's opposition. Thereupon, in 1930 Gangabai adopted the plaintiff Anant as a son to her deceased husband Bhikappa and in 1932 as next friend of her adopted son brought the suit which is now before the Board.

(2.) The learned trial Judge gave the plaintiff a decree dated 22 November, 1933, for possession with mesne profits from the date of suit: also a declaration that he is the lawfully adopted son of Bhikappa and that as such he is the heir of the last male owner Keshav. The High Court on 16 December 1937, set aside the order for possession and mesne profits and qualified the declaration by adding the words : "except as regards the watan property which has already vested in the defendant." They made no specific reference to the two plots which had belonged to Narayan and the order for possession and mesne profits was set aside without any exception being made as to these plots. The ground of the High Court's decision was that as the coparcenary which existed at the time of Bhikappa's death (1905) had come to an end on the death of Keshav (1917) and the family property had then vested in his heir; the subsequent adoption (1930) by Bhikappa's widow, though valid, would not revive the coparcenary or divest Keshav's heir, the adopting widow not being herself Keshav's heir. In 14 Bom. 463,1it had been held that on the death of the sole surviving coparcener, an adoption to a predeceased coparcener was ineffective to take property which had belonged to the joint family out of the hands of the former's heir and vest it in the adopted son. The decision was understood by the board in 60 IA 252at p. 40, to mean that the adoption was invalid. In 14 Bom. 4631Bhau and Nana were undivided brothers. Nana survived all the other male members of the family and on his death without issue his widow Gojarabai took the family property by inheritance from him. After that Bhau's widow adopted the plaintiff who sued Gojarabai to recover the property. The judgment of the Court (Sargent C. J. and Telang J.) was delivered by Telang J., a distinguished learned Judge of special competence on questions of Hindu law. The ultimate ground of decision was that strictly speaking according to the view taken by our Courts, there was at Nana's death no undivided family remaining into which an adopted son could be admitted by virtue of his adoption. (p. 471.)

(3.) This reasoning had been questioned by Seshagiri Ayyar J,, in 38 Mad. 11063at p. 1118; also by Venkatasubba Rao J., in 55 Mad. 6814at p. 590. After 60 IA 2425had cast further doubt upon it, a Full Bench of the High Court of Bombay had in ILR (1937) Bom. 508,6dealt with the matter, the judgment of the Full Bench being that of Beaumont C. J. with which Wadia J., agreed and from which Rangnekar J., dissented. In that case, as in 14 Bom. 463,1the property at the date of the adoption to a pre-deceased coparcener had already vested in an heir of the last male holder nearer to him than a natural born son of the pre-deceased co-parcener would have been. The present case is different in that the plaintiff, if he is an heir of Keshav, is a nearer heir than the defendant. The learned Chief Justice dealt with both types of case and held that in neither case did the adoption have effect to vest the property in the adopted son. His view was that an adoption made after the termination of the coparcenary does not vest in the adopted son the interest in joint family property which would have vested in a natural born son of the adoptive father; also that 60 IA 2425had not disturbed the rule of law that an adoption by the widow of a divided Hindu does not divest any estate of inheritance unless the estate was then vested in the adopting widow as heir either to her husband or to a deceased son. Upon that view it is irrelevant that as an heir to Keshav a brother would be nearer than the defendant Shankar. The learned Judges who decided the present case in the High Court followed this Full Bench ruling as their duty was. But their Lordships must examine its correctness and for this purpose find it necessary to distinguish and separately consider two lines of reasoning.