JUDGMENT
Sharad Manohar, J.
1. After the appeal was heard at length, an unreported judgment of a Division Bench of this Court, to which I was a party, was brought to my notice and it is now not disputed before me that the question involved in this appeal is fully covered by the said judgment. However all that I am required to State in this appeal are the facts and the nature of the question involved.
2. Facts are very simple :
One Santu, who died in the year 1904, had two sons Bhau and Shankar. Bhau died in the year 1917 leaving behind his widow Krishnabai. Shankar is defendant No. 1 in these proceedings. Shankar has two sons Gajanan and Manohar, who are defendants Nos. 2 and 3 respectively before me. It is a finding recorded by the courts below that Bhau and Shankar were joint and hence it could be safely said that upon the death of Bhau, the entire property belonging to the joint family passed on to Shankar by survivorship. Krishnabai could have, as per the law then existing, only a right of maintenance out of the joint family property. Complications, however, arose by virtue of the adoption by Krishnabai in the year 1958 of the present plaintiff. She adopted him on 3-7-1958. Krishnabai died on 3-9-1964. After her death the present suit was filed by the plaintiff-adopted son, on 30th April, 1970 for his half share in the suit property, which consists of agricultural lands and a house. The agricultural lands were sufficiently described in the plaint, but in respect of the house no description was given. All that was mentioned was that it was a house in the Gavthan of the village. Defendant No. 4 was impleaded as party defendant because it was the plaintiff’s contention that one of the suit properties, R.S. No. 248, had been sold by defendants No. 1 to defendant No. 4 without any legal necessity. The contention, therefore, was that the alienation was not binding upon the plaintiff.
3. Defendant Nos. 1 to 3 resisted the suit on various grounds but we are not now concerned with all of them in this appeal because all those contentions of the defendants have been negatived by both the courts below and Mrs. Gokhale, the learned Advocate appearing for the defendants, has rightly not pressed into service those contentions as the same were devoid of any substance.
4. Only two questions remained for consideration. The first one related tot he suit properties and the other one related only to the house. So far as the suit property as a whole was concerned, the contention of the defendants was that even assuming that the plaintiff was validly adopted in the year 1958, but still on that date or long before that date, the entire property had passed on to Shankar by survivership and had, thus, been vested in him within the meaning of section 12(e) of the Hindu Adoption and Maintenance Act, 1956. The contention, therefore, was that the adoption could not have the result of divesting Shankar and other defendants of Bhau’s 1/2 share, which had already got vested in Shankar and his two sons upon the death of Bhau. So far as the house was concerned, the contention was that there was no description given in respect of the suit house at all and hence no executable decree could be passed by the Court. So far as defendant No. 4 was concerned he remained ex parte and did not contest the plaintiff’s contention that the sale made in his favour by defendant No. 1 was not supported by any legal necessity.
5. The trial Court negatived the defendants’ first contention holding, in substance, that the provision of section 12(e) of the said Act could have no effect of debarring the plaintiff from claiming partition in the suit property. But so far as the house was concerned the learned Judge was of the view that there was no description given of the house and the one which was given was so vague that no executable decree could be passed by any Court. The plaintiff’s suit for 1/2 share in the suit lands was, therefore, decreed by the trial Court but so far as the claim relating to the house was concerned, the claim was rejected.
6. Defendant’s Nos. 1 to 3 filed an appeal to the District Court and the plaintiff filed cross-objections relating to the rejection of his claim pertaining to the suit house. The learned Extra Assistant Judge, who heard the appeal upheld the abovementioned first contention of the defendants and held that although the adoption of the plaintiff dated 3-7-1958 was valid as per the provisions of the said Act, still when the property had passed on to Shankar by survivorship the result was that Bhau 1/2 share had got vested in Shankar in the first instance and after the birth of Gajanan and Manohar in them also. He held that having regard to the proviso to sub-clause (e) of section 12 of the said Act, the adopted boy, viz. the plaintiff, could not have power to divest that property from Shankar & other defendants. He therefore differed from the view of the trial Court and held that plaintiff was not entitled to claim partition and possession of 1/2 share in the suit properties. In view of this finding, it was not necessary for him to consider the question as to whether any executable decree could be passed in favour of the plaintiff so far as the house was concerned. The appeal was allowed. The cross-objections were dismissed and the entire suit filed by the plaintiff was dismissed by the learned Appellate Judge with costs. The present appeal is directed against the said decree of the Appellate Court.
7. As stated at the outset, the question involved in the appeal is no longer res integra. A Division Bench of this Court, to which I was a part, has held in (Letters Patent Appeal No. 93/76 which was decided on 18-4-1980)1, that the question involved in such a case is really not one of vesting and divesting of the property at all. The analogy that readily suggests itself to mind is of the birth of a son in the joint family. ‘A’ and ‘B’, brothers, are living jointly. At any given time ‘A’ and ‘B’ will be having 1/2 share each in the joint family property. Now, if ‘A’ gets a son ‘C’, ‘A’s share will be reduced instantaneously to 1/4th, the remaining 1/4th share going to the newly born son ‘C’. Can it be said in such a case that ‘C’ divested ‘A’ of his others 1/4 share ? Another illustration. Supposing before the year 1937 ‘A’ died leaving behind only his widow, but no issue at that time. No doubt before the year 1937 the property of one of the co-parceners would have passed on to the other co-parcener ‘B’ by survivorship; but if the widow of the deceased co-parcener ‘A’ gave birth to a son after the death of her husband, from the date when the son was born, he would get that 1/2 share which had passed on upon the death of his deceased father to his uncle ‘B’. Could it be said that on the death of ‘A’ his 1/2 share became vested in ‘B’ and upon the birth of ‘C’ he was divested of that 1/2 share ?. The answer is in the negative because when the shares of the various co-parceners increase and decrease on account of the principle of survivorship, the concept of vesting and divesting as contemplated by section 12(c) of the Act does not come into play at all. In principle there can be no different between adopted son and a newly born son. No doubt previous to the advent of the Adoption and Maintenance Act, the adoption dated from the death of the adoptive father and that position is no longer in existence after the advent of the Adoption and Maintenance Act. But the basic similarly between a natural born son and an adoptive son is not at all affected by the new Act. It will, therefore, have to be held that the adoptive boy was born to Bhau from Krishnabai on 3-7-1958. If that position is accepted and once it is accepted that the joint family property in the hands of Shankar continued to be so, the death of Bhau notwithstanding, it shall have to be held that the plaintiff was the son born in the joint family on 3-7-1958. He would be, therefore, entitled to claim partition and separate possession of 1/2 share of the entire property which in the year 1917 belonged to Bhau and Shankar. This is precisely the view taken by the Division Bench in the above mentioned judgment and I am respectfully bound by the same. So far as the plaintiff’s claim relating to the suit lands is concerned, it has, therefore, get to be decreed and the judgment of the lower Appellate Court has got to be set aside to that extent.
8. So far as the house is concerned, however, the position is of a deplorable character. In plaint paragraph 3(d) the description of the house given is as follows :—
“The house and back-yard is in the Gavthan of village Elavde, Taluka Radhanagari. In the same the plaintiff has got 1/2 share and if there are any other rights pertaining to the same he has got 1/2 share in it, also.”
The plaintiff expected the Court to pass a decree for partition and possession of this house as if there was only one house in the entire Gavthan. The plaintiff produced one assessment receipt in evidence. It referred to House No. 153 in ward ‘B’. The description showed that the house belonged to Santaram Shankar Nilkanth; but not a whisper of evidence was led to show that the suit house related to the house mentioned in the assessment receipt. It was on this ground that the learned trial Judge held that no executable decree could be passed by the Court in view of the vagueness of the description of the house given by the plaintiff in the plaint. In spite of the observation of the learned trial Judge and in spite of the fact that the plaintiff’s prayer in the suit in respect of the house was rejected by the trial Court, no attempt was made by the plaintiff to amend the plaint so as to give a correct description either in the trial Court or in the Appellate Court when cross-objections were filed by him and I am pained to say that even though the present Second Appeal was filed as early as in the year 1974 it did not become possible for the plaintiff-appellant to take any steps to amend the plaint so as to give the correct description of the house. Even to-day I do not have any amendment application before me even though the hearing of this application has been adjourned on one occasion. In these circumstances, I have do justification from differing from the view taken by the trial Court so far as the house is concerned.
9. Mr. Datar, the learned Advocate appearing for the plaintiff-appellant, desired that leave should be given to him to file separate suit for possession of the house. He has shown his confidence that a fresh suit for the house would not be barred by limitation because, according to him, the cause of action accrued to the plaintiff when he attained majority in the year 1969. To put it very mildly, I have my misgivings about such reasoning; but I do not wish to express any opinion on this point. I find no reason to disallow an opportunity to the plaintiff to file a fresh suit for possession of the suit house, if he is so advised.
10. The appeal is, therefore partly allowed. The decree passed by the lower Appellate Court, so far as the suit lands are concerned, is set aside. The decree relating to the suit house is, however, confined. The decree passed by the trial Court is restored in toto. In the circumstances of the case there shall be no order as to costs throughout.