JUDGMENT

1. This appeal raises a number of points, one of which is of considerable importance. The points can best be under, stood when the following facts have been stated: The following genealogical tree shows the relationship:

DEWAJI (dead) | ______________________________________ | | Tukaram Bhagirathi = Bakaram = Yamuna (died 1891) (died 1921)(died 22-10-1918)(died 1935) | | Bajirao Shankar = Parvati (Defendant 1) (died 14-9-1913) | | | Ramkrishna (Plaintiff) | (adopted on 17-12-1936) | __________________ | _____________________________ | | Narayan (deft. 2) Rangrao (deft. 3)

2. It should be added that the group, Bajirao, Narayan and ''Bangrao, (forming the family composed of a father and two sons in the Tukaram line) separated on 16th September 1912 from the Bakaram group. But this did not result in the parties for ever being divided because there was a reunion in 1914, that is to say, after the death of Bakaram's son, Shankar. Thus from 1914 to the death of Bakaram in 1918 the Bakaram line and the Bajirao line were joint. There was a partition on 19th September 1936, after Bakaram's death and before Ramkrishna's adoption, when the members of the joint Hindu family springing from Dewaji were all dead except Bajirao, Narayan and Bangrao (and may be their womenfolk, a matter that was not regarded as relevant) of the Tukaram line and widow Parvatibai of the Bakaram line. Of these the appellants stress the fact that Parvatibai was not a coparcener but a mere maintenance-holder. Accordingly it is said that at the date of the partition, 19th September 1936, the only coparceners in this joint Hindu family were defendants 1, 2 and 3, and that as a consequence of their separation they had brought the coparcenary for ever to an end and that accordingly (1) Parvatibai's power to adopt was at an end, alternatively, (2) if she had power to adopt, Ramkrishna obtained no property because he was adopted into the family of Dewaji at a time when that coparcenary had been brought to an end, alternatively at a time when it had been divested of all the joint family property by that property losing its quality of jointness by division amongst the surviving coparceners on separation. In other words, on either view, when Bam-krishna was adopted there was no share in the family property that he could claim. This is a point of importance.

3. Next it is urged that after the death of Bakaram certain properties were acquired out of the profits of the joint family property. It is said that when the only coparceners were defendants 1, 2 and 3 they were not accountable to anybody for profits. Accordingly if they spent those profits and acquired any land that land, it is argued, became their self-acquired property. Finally there is a supplementary point taken: that on a true construction of the deed of adoption the plaintiff's right of suit, if any, became postponed until after the life of the widow and that he has no present right of j action. This last point to be understood requires it to be stated that the suit is for partition and possession, that in the deed of adoption the adopting mother reserved to herself very wide powers over the property during her lifetime. She was to be, during her lifetime, in exclusive possession. She was to have power to manage, of course, as regards the share of the Bakaram branch. Accordingly, it is said that, as she is still alive, she is the person who is entitled to possession. Seeing that this suit is brought by her adopted son, a minor, and that she is his next friend, we regard this as a highly technical point, of no merit, and we should have put the matter right, if need be, by adding her in her proper capacity as plain, tiff in addition to her being on the record already in her capacity as next friend to the minor. On the court indicating that, seeing that leave in any event was required to urge this ground of appeal (which leave we indicated would not be given excepting on the above terms which would render the point of no importance) we heard no more of this branch of the appeal.

4. As to the first of the above points we do not propose to examine any of the arguments as we regard it as concluded by a Division Bench of this High Court in Bapuji v. Gangaram, 1941 AIR(Nag) 116, a case which in turn is founded on the Privy Council decisions there examined. As to point 3 we regard it as clear that where the members of a joint Hindu family acquire property oat of moneys representing either capital or income of the joint family property the resulting acquisitions go to increase the joint family property. The proposition, in our opinion, is so well established that it would be a waste of time to cite authorities. Indeed, in this very case, the purchases were by defendant 1 and yet when he came to divide up the properties between himself and his sons these freshly purchased fields and so forth were divided up as being joint family property. That leaves outstanding the big question which has been very fully argued before us, argued with great ingenuity by Mr. Bobde who, not unnaturally, has founded himself mainly on a Pull Bench decision of the Bombay High Court Balu Sakharam v. Lahoo Sambhaji,1937 AIR(Bom) 279, and on cases which have followed that decision in Bombay and on other Bombay decisions. We do not propose to examine all these Bombay decisions--they are numerous--but the following have been cited as directly deciding this very point or as containing statements of the law which j result, it is said, if logically applied, in the conclusion sought to be reached by the appellants: Dhondi Dnyanoo v. Rama Bala, 1936 AIR(Bom) 132, Basawantappa v. Mallappa,1939 AIR(Bom) 178, Krishnaji Raghunath v. Rajaram Trimbak,1938 AIR(Bom) 383, Chanbassappa v. Buchappa,1939 AIR(Bom) 47, Ayyangouda v. Gadigeppagouda,1940 AIR(Bom) 200, Balu Sakharam v. Lahoo Sambhaji,1937 AIR(Bom) 279, Irappa Lokappa v. Rachayya Madiwalayya, 1940 AIR(Bom) 118, Rudrappa v. Mallappa,1940 AIR(Bom) 95 and Anandibai v. Vasudev,1939 AIR(Bom) 81.

5. There can, in our opinion, be no doubt at all that the High Court in Bombay has taken the view: (1) that in circumstances such as these the partition between the defendants causes the joint family property to leave the family and go to the existing members of the family whereupon it ceases to be joint family property, (2) that such a state of fact does not divest the widow (Parvatibai, in this case) of her power to adopt, but (3) that when she adopts a son she adopts the son into a family that has lost all its property, accordingly he gets nothing. As this is a conclusion arrived at by a considerable number, in the aggregate, of distinguished Judges we are very slow to arrive at a different conclusion and should have placed the matter before a Full Bench were it not for the fact that the Privy Council have made in many cases observations which appear to us to point in the contrary direction, and were it not for the further fact that two Benches of this High Court have also made observations which, in our opinion, tend in the opposite direction though the matter has not been definitely decided before by this High Court. We refer to Bapuji v. Gangaram, 1941 AIR(Nag) 116 and Mt. Draupadi v. Vikram, 1938 AIR(Nag) 423.

6. In our opinion much of the difficulty arises owing to the somewhat unfortunate use of the word ''coparcenary''. This difficulty was pointed out in Mt. Draupadi v. Vikram, 1938 AIR(Nag) 423. In our opinion one gets a better view of the position that arises in circumstances such as these if one concentrates one's attention on the joint Hindu family rather than on who, at any particular moment, are ''coparceners''. In this case it has been strongly urged, and indeed it was the whole basis of the argument, that a few months before the adoption of the plaintiff the ''coparcenary'' consisted of defendants 1, 2 and 3. In the sense that they were the only male members then in existence of the joint Hindu family, we agree. But we do not agree that they were the only members of the joint Hindu family. Further, we do not agree that a joint Hindu family is necessarily composed of persons who are ''coparceners'' and persons who are mere maintenance holders. A joint Hindu family can, and frequently does, consist of persons who, while not entitled to share and while their property rights are merely those of maintenance holders, have other rights, rights which, from the point of view of the argument now under examination, are vital; that is to say, the right of adding a ''Coparcener'' to the family. While there is such a family in existence it is, in our opinion, impossible that three members, such as defendants 1, 2 and 3 here, can take to them-selves the whole of the joint family property and thereby destroy the power of another member--in this case Parvatibai--not to adopt but to adopt a person who will be in the place of a natural-born son to her husband and as such entitled to all the rights of a coparcener in the joint Hindu family property and the rights of the adopted son to a share, on adoption, in the joint family property.

7. We put to counsel the clear case where Parvatibai was enceinte and where the plaintiff was the posthumous son. In such a case it is obvious--and admitted--that defendants 1, 2 and 8, though at the time the only existing ''coparceners'', could not, by dividing up the property amongst themselves and declaring themselves severed one from an. other, in any way bring to an end the rights of the after-born son. The reason of course is that such a child is deemed to be born when he was conceived. The son from that moment has a share. The adopted son, as from the moment of adoption, is a ''taker of a share.'' See Mitakshara, Section 1, Pl. 27; Section 6, pl. 8 to 11, 12 and 22. The essential conception is that there is no breach in the chain which links the adopted son to his ancestors (notional ancestors, those of the adopting family). There is a break in time where, so to speak, there is in that link no son. But once a son is adopted, the line for the purpose of inheritance and for the purpose of determining whether the new son has a share is regarded as continuous. The new son does not start a new family, he is a son of the adopting joint Hindu family even if no single ''coparcener'' exists, i.e., even if at the time of adoption it has been reduced to a female, the adopting mother. He is no less a sharer in that family because before he was adopted A or B or C or A and B and C has or have separated off. The only difference (apart from the re-union point, later considered) between the clear case of the natural-born son and the case of the adopted son is the difference arising out of the nature of things. In the case of the son born of the widow he is obviously either conceived in his father's lifetime or is illegitimate. If illegitimate, the question takes a different form. A legitimate son must always be linked with his father directly.

8. What is the position where, as here, he is not a natural-born son but an adopted son, adopted, it may well be, many years after, the death of the father to whom he is adopted? In our opinion, there is a mass of authority to show that there is no hiatus in, such a case, any more than in the case of the natural-born son, in the eye of the law, between the death of the father and the birth of the son. The line is continuous. The old joint family lives on reduced, it may be, by members separating from it; added to, it may be, by births or by adoptions. That the continuity of the line may be a legal fiction is obvious as, in our opinion, is equally obvious the reason why the legal fiction has been invented. As we shall see there is a considerable mass of case law on which the opinion could be founded that the Hindu law escapes, any break in the line either by notionally carrying back his adoption or notionally carrying forward his father's death. Before, however, we consider that line of case it will be useful to examine three Privy Council decisions which show that when, as here, the son is adopted he immediately, in his own right, and because he is a son of the family to which the joint property belongs, obtains his share and consequently divests the last surviving coparcener of the joint Hindu family either of this share, in the case of a partible estate, or, of the whole, in the case of an impartible estate, where the adopted son is, by adoption, placed in the position of the person entitled to the whole. As these cases have already been examined in detail in Bapuji v. Gangaram, 1941 AIR(Nag) 116 we shall pass them over very summarily. In Sri Virada Pratapa Raghunadha v. Sri Brozo Kishoro, 1876 1 ILR(PC) 69 the following was the relationship:

CHANDRAMANI DEO | ______________________________________ | | Adikonda Deo=Kundana Devi Raghunadha Deo (died 1868) | Brojo Deo (adopted in 1870).

9. There Brojo Deo succeeded in divesting Eaghunadha Deo. In Amarendra Mansingh v. Sanatan Singh the defendant succeeded in regaining and retaining possession of the estate and wholly divesting the plaintiff who was the last surviving coparcener before the defendant's adoption it being a case of an impartible zamindari. In Bhimabai v. Gurunathgouda the defendant, the adopted son, divested the assignee of the widow of the last surviving coparcener. It was not a case of an impartible zamindari but the case of an ordinary joint Hindu family. There the last surviving coparcener died leaving a widow and a minor son, and there was another widow in the family. The other widow adopted. The minor died and his mother delivered possession of the property to a third person purporting to do so under a consent decree in an arbitration proceeding. The adopted son succeeded as against the third person.

10. It is said, relying on the Bombay cases, it. is at once accepted (as it must be accepted in view of the Privy Council decisions) that if there be only one remaining ''coparcener'' (whatever that may be) so that there remains a ''coparcenary'' of one to which the adopted son can join, the adopted son divests the surviving ''coparcener.'' But it is said that entirely different considerations arise if--instead of the joint family being reduced to one, or if instead of considering a joint Hindu family which, owing to its impartibility, can only have one sharer (though it may have a number of maintenance-holders, one person in possession of the estate)--you have, as here, a case where the coparcenary has been disrupted and, as it is argued, finally brought to an end. In such a case, it is urged, there is no coparcenary at the date of adoption and therefore the adopted son does not become a coparcener with those members who, before partition, would have been coparceners in the joint Hindu family into which he is introduced.

11. Whether that be a correct way of looking at this matter, in our opinion, turns to a considerable extent upon whether when an adopted son is introduced there is, in the eye of the law, any break in the continuity of the line into which he is introduced. In our view there is no break in continuity. Even as in the case of a natural-born son his birth goes back to the time of his father so where there is an adoption the adopted son is entitled to his share. One way of looking at the matter is that he is entitled to a share as a son representing his father's line; another way is to regard the adopted son's legal birth as going back to the time of the father. On any view it can never be said that there was a time when that branch was extinct. The reason it cannot be said that that branch was extinct is that all the time there is a woman who has within herself Sot the natural power but the legal power to produce a legal son.

12. We need not stay to examine the wry considerable number of cases, of which we may refer to Veeranna v. Sayamma, 1929 AIR(Mad) 296 as an example, which seek to minimise the serious practical inconveniences which might follow from allowing that fiction to be entirely untrammelled. It is, we think, plain sense that can be reconciled with the above principle that persons in the position of the present defendant 1--who, between the years 1918 and 1986, was the manager of an undivided joint Hindui family consisting of himself and his two sons and a widow (at all material times, i.e., between those years, a mere maintenance-holder though potentially the mother of a son)--are not accountable in any way to any, son that is brought on the scene after the act for which he seeks to make them accountable. So also it may well be that when one is considering the position of alienees they would be able to raise a defence on the ground that such a son brought into the family after the transaction impugned (that is to say, alienation), had been perfected cannot challenge such an act. There is also a nice point as to what is the share to which the adopted son is entitled where, for example, the number of collateral branches has been increased or decreased between the death of the father and the adoption. These wide questions do not here arise. One is here considering the rights of the members of the family inter se. That family has, at all material times, had two branches. We are simply concerned here with whether this adopted son is entitled to one-half of the joint family property or nothing. If he is entitled he is entitled as being a member of a family that has not been disrupted.

13. We use the term ''that has not been disrupted,'' and it might be said that that is begging the whole question. But to us it appears clear that a joint Hindu family comprising the members that this joint Hindu family comprised in August 1936 could not be disrupted by the act of defendants 1, 2 and 3. We pressed counsel over and over again to say to what family the plaintiff was adopted when he was adopted, and counsel was driven to admit that he was adopted to the family of Dewaji and it appeared that he was only connected with Dewaji through Bakaram and Shankar. That was the family in which he was and that family consisting of two branches (one containing three coparceners and their womenfolk, the other containing one widow with power to adopt) cannot be disrupted by the members of one branch of it deciding amongst themselves to disrupt that branch and take all the family property and divide it amongst themselves. That might be sufficient to bring to an end the so-called coparcenary formed of defendants 1, 2 and 3, but that does not affect the rights of the son born or adopted into the other branch, in our opinion. They cannot, while there is in existence in the Bakaram branch a pregnant widow, so disrupt the family that the property ceases to belong to that family and can be taken wholly by themselves. They can separate off from the family and become separate from the Bakaram branch of course. That is a unilateral act just as any member of a joint Hindu family can by his unilateral act break off from the family; but he cannot disrupt the family and deprive others of their rights as members of that family by a unilateral act. Everybody, concerned has to be provided for before the resulting partition of property is final. This is obvious if Parvatibai were pregnant. It is equally obvious that the child, when born, would get nothing had there been a partition between the Tukaram branch and the Bakaram branch in the child's father's lifetime and the father had c dissipated the share assigned to that branch. But that is not this ease. There has never been a division between the Tukaram branch and the Bakaram branch. They have not finally brought the old family to an end--we bear in mind that in point of fact they did sever in 1912 but we treat that as amounting to nothing so far as the argument is concerned because of the reunion of 1914. All that has happened is that some members of one branch have broken up that branch.

14. We now proceed to deal with the cases which show that there is, in point of law, no break in the continuity of the Bakaram line in circumstances such as are here present. We note in the first place that the learned authors of Edn. 9 of Mulla's Principles of Hindu Law, Sir Vepa Bamesam and Sir Sajba Bangnekar, have expressed the view that the Bombay view propounded in Balu Sakharam v. Lahoo Sambhaji,1937 AIR(Bom) 279, in so far as it decides that though the adoption is valid it does not divest the estate vested in an heir of the last owner, is not supported by any authority and is not logical. They also express the view, not in any way based on conceptions of impartibility, that the fact that only one member of the joint family survives at the time of adoption. is no bar to an adoption in the joint family. The family continues to be joint so long as any widow remains in it with a right of maintenance against the family: (see ibid page 538.)

15. The learned author of Edn. 10 of Mayne on Hindu Law and Usage, at p. 285, has criticized BALU SAKHARAM V. LAHOO SAMBHAJI,1937 AIR(Bom) 279, observing that in the Privy Council case nothing turned upon the question that it was an impartible zamindari nor was it treated as'' a case of coparcenary or survivorship ''as is wrongly supposed by a recent Full Bench of the Bombay High Court.'' See also the same book at page 287 where referring to the Bombay decision, the majority view, the learned author observes:

The learned Judges erroneously assumed that in Amarendra Mansingh v. Sanatan Singh and in Vijaysingji V. Shivasangji coparcenary was in existence at the date of the adoption. The very opposite of it is clearly stated by Sir George Lowndes in Amarendra Mansingh v. Sanatan Singh to be found in the decision of the High Court in Vijaysingji V. Shivasangji, 1935 AIR(PC) 95. The decision in Chandra v. Gojarabai,1890 14 ILR(Bom) 463 was clearly understood by Dinshah Mulla in Bhimabai v. Gurunathgouda as holding that the adoption made by a widow after the extinction of a coparcenary was invalid. But in Bhimabai v. Gurunathgouda as the coparcenary was in existence at the time of the adoption, the Judicial Committee distinguished it without expressing any opinion as to the correctness of the decision in Chandra v. Gojarabai,1890 14 ILR(Bom) 463. Obviously Chandra v. Gojarabai,1890 14 ILR(Bom) 463 cannot be-treated as good law after the two recent Privy Council decisions on the question of validity of art adoption in circumstances similar to those that existed in that case.

16. These are the two leading text-books on the principles of Hindu law that we have editions of after the Bombay view has been expressed. They are the works edited by very learned Hindu lawyers and we think that their view is right in principle. There can, in our opinion, be no question of a partition whereby the partitioning male members take away all the family property from a joint Hindu family unless the family can be wholly disrupted and finally brought to an end. We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end While there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. The existing male members can separate off: they can take away their share. They cannot prejudice the rights of the after-born male member whether the birth is natural or legal. If in point of fact, before his arrival, the existing coparcener have partitioned the new arrival can obtain a re-opening of the partition and thereby get his share. How that share is to be calculated in various circumstances need not be decided here. There is a catena of cases, for which we do not go beyond those which have come before the Judicial Committee, which indicates that for certain purposes there is no hiatus in the eye of the law. In Pratapsingh Shivsingh v. Agarsingji Raisangji, 1918 AIR(PC) 192 having dealt with the one difference, that is between the position of an adopted son and an aurasa son, their Lordships observe:

In every other instance the adopted son and the son of the body stand exactly in (the) same position. Again, it is to be remembered that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as Messrs. West and Buhler 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 without male issue until the death of the widow renders the continuation of the line by adoption impossible.

Again in Mata Prasad v. Nageshar Sahai their Lord-, ships observe:

The adoption of Nageshar by Jagrani Kuar, although it took place in 1914, takes effect from the death of the father to whom he is adopted, and therefore there was no intervening time during which it could be said that the property was not held by anyone.

Again in Madana Mohana Deo v. Purushotthama Deo, 1918 AIR(PC) 74 their Lordships observe:

It is not in dispute that the zamindari was impartible and descended by the rule of primogeniture to a single heir. When Brozo Kishore was adopted, he succeeded as though he had been the actual son of Adlkonda, and, as this Board decided in 1876 with reference to this very succession Sri Virada Pratapa Raghunadha v. Sri Brozo Kishoro, 1876 1 ILR(PC) 69, he became entitled to oust Raghunadha, whose right to enter was only temporary, operating merely to prevent the ownership from being in abeyance pending any such succession to his elder brother as the adoption brought about.

17. It seems to us to be idle to multiply references. Any one of the above would be binding on us, but if one cares to go to Indian cases even in Bombay one finds the same principle enunciated in an almost endless series of cases. We content ourselves by referring to Raje V.A. Nimbalkar v. Jayavantrav M. Ranadive,1868 4 ILR(Bom) 191 and Babu Anaji v. Ratnoji,1897 21 ILR(Bom) 319 . In Mt. Draupadi v. Vikram, 1938 AIR(Nag) 423 the matter was expressed in the following way:

The husband (that is to say, the father to whom the son was adopted) becomes fully alive, for judicial purposes, in the form of the adopted son on the well-recognized Vedic doctrine 'The father is born as the son.' Again 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.

18. It was urged that the fact that here there was a partition and then reunion makes all the difference. In our opinion that is not so. The effect of the reunion, which was in the life-time of Bakaram, was to reunite a disrupted joint Hindu family and to bring into existence once again that juridical conception, a joint Hindu family formed of the Tukaram and Bakaram branches springing from Dewaji. One must examine all further acts thereafter on that basis. The purpose of the adoption was expressed in the adoption deed as follows:

It is my duty to make proper arrangements for the continuation of the line of Bakaramji and Shankarrao and for their attaining to spiritual good condition. Hence for the happiness of my husband and father-in-law in this and other worlds, and for the continuation of their names, I have, this day, after full consideration asked your natural father for you and adopted you as a son to Shankarrao.

19. In Prankishen Paul Chowdry v. Mothooramohun Paul Chowdry,1863 10 MIA 403 the effect of reunion was considered. Although the facts here are not quite the same as in Prankishen Paul Chowdry v. Mothooramohun Paul Chowdry,1863 10 MIA 403--because here Shankarrao had died in between partition and reunion--we think the principle is the same and is correctly expressed in Mulla, para. 343, that is to say, one cannot regard the Bakaram line as finally severed from the joint Hindu family: though that was the effect of the partition in 1912 it was brought back into the joint Hindu family in the person of Bakaram and those in his line on reunion. Though in the meantime Shankar was dead his widow was alive and was brought back into the family, and so to speak, in her person her deceased husband was brought back too. Whether or not this is going too far, though we think that it is in consonance with the Hindu conception of the joint Hindu family, she was clearly brought back into the family and when she adopted to Shankar she brought the adopted son into the family not only as the son of Shankar but as the grandson of Bakaram. It is because of considerations such as these that we think the view expressed in Mt. Draupadi v. Vikram, 1938 AIR(Nag) 423, that the father is born again in the son, is from the Hindu law idea perhaps preferable to treating the son's adoption as dating back to the death of his father. In all the cases where their Lordships of the Privy Council had to consider the matter the distinction was really of no importance and their Lordships did not consider the matter as to the form in which the hiatus should be bridged. But this is a case in which it is of importance because if one took back the birth of the son to the death of Shankar one would take him back to a father that was outside this family, whereas if one brought the death of the father forward to the birth of the son one would bridge the hiatus at a time when the family was reunited. Whatever may be the solution of this somewhat curious puzzle we are satisfied that it must be found along lines which will leave extant, as an existing branch in a joint Hindu family, the line of Bakaram at the date of the adoption, and that is sufficient for the purposes of this case.

20. It follows, in our view, that with great respect we must differ from the opinion expressed in the Bombay cases from Balu Sakharam v. Lahoo Sambhaji,1937 AIR(Bom) 279 onwards, and hold that this plaintiff is adopted into a family and is entitled to his share in the family property. This was the view taken by the learned trial Judge. It follows that the appeal fails and must be dismissed with costs.

Final Result : Dismissed