{"id":67435,"date":"1961-05-05T00:00:00","date_gmt":"1961-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishnamurthi-vasudeorao-vs-dhruwaraj-on-5-may-1961"},"modified":"2015-09-26T11:34:08","modified_gmt":"2015-09-26T06:04:08","slug":"krishnamurthi-vasudeorao-vs-dhruwaraj-on-5-may-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishnamurthi-vasudeorao-vs-dhruwaraj-on-5-may-1961","title":{"rendered":"Krishnamurthi Vasudeorao … vs Dhruwaraj on 5 May, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Krishnamurthi Vasudeorao … vs Dhruwaraj on 5 May, 1961<\/div>\n
Equivalent citations: 1962 AIR 59, \t\t 1962 SCR (2) 813<\/div>\n
Author: R Dayal<\/div>\n
Bench: Dayal, Raghubar<\/div>\n
           PETITIONER:\nKRISHNAMURTHI VASUDEORAO DESHPANDE AND ANR.\n\n\tVs.\n\nRESPONDENT:\nDHRUWARAJ\n\nDATE OF JUDGMENT:\n05\/05\/1961\n\nBENCH:\nDAYAL, RAGHUBAR\nBENCH:\nDAYAL, RAGHUBAR\nSUBBARAO, K.\n\nCITATION:\n 1962 AIR   59\t\t  1962 SCR  (2) 813\n CITATOR INFO :\n RF\t    1970 SC1730\t (3)\n E&R\t    1974 SC 878\t (15)\n\n\nACT:\nHindu Law-Joint family-Adoption-Rights acquired by  adoptive\nson  relating  back  to date of death  of  adoptive  father-\nProperty-Collateral  succeeding to  co-parcener-If  inherits\nabsolutely or subject to defeasance.\n\n\n\nHEADNOTE:\nRespondent  was adopted by a widow after about 63  years  of\nher husband's death.  The husband had predeceased his father\n'N' leaving behind him the said widow and two sisters K. and\nS.On  N's  death  K and S inherited  in\t equal\tshares.\t  On\nK'sdeath  her  son succeeded and on his death his  two\tsons\nthe present appellants succeeded to her share.\nThe  respondent instituted the suit for the recovery of\t the\nproperties from the appellants, alleging that the immoveable\nproperties  formerly belonged to the ownership of  and\twere\nunder the Vahiwat of the joint family of his adoptive father\nand  grandfather  respectively.\t The appellants\t denied\t the\nrespondent's right to the properties contending that K their\ngrandmother  was the full owner of the properties  and\tthus\nbecame a fresh stock of descent and that they, inherited the\nproperties from their father to whom they had been alienated\nby K their grandmother.\nThe High Court held that the alleged alienation by K of\t her\nhare  to  her son was not binding on  the.  respondent,\t and\nfurther\t held that tile respondent could divest\t the  appel-\nlants  of the properties which belonged to the\trespondent's\nadoptive grandfather.\nThe  question  was whether the respondent on  his  adoption,\ncould  divest  the  appellants\tof  the\t properties  of\t his\nadoptive father and grandfather.\nHeld, that when a person is the owner of property possessing\na  title  defeasible all adoption, not only that  title\t but\nalso  the title of' all persons claiming under him  will  be\nextinguished on the adoption.\nThe  heir of a collateral succeeding to the  sole  surviving\nco-parcener inherits the property absolutely, but subject to\ndefeasance, and the right in the property devolves on his\n814\nheirs  who  would take that property absolutely,  but  still\nsubject\t to defeasance, as no better title could  have\tbeen\ninherited,  for\t the  character of the-\t property  does\t not\nchange\tfrom  the  co-parcenary property  to  self  acquired\nproperty,  so  long  as there was  the\tpossibility  of\t the\ndefeasance of the absolute title by a widow of the family of\nthe  last surviving co-parcener adding a member to  the\t co-\nparcenary by adopting a son   to her deceased husband.\nShrinivas  Krishnarao Kango v. Narayan Devji Kango and\tOrs.<\/a>\n(1955) 1 S.C.R. 1, applied.\nRamchandra Hanmant Kulkarni v. Balaji Datto Kulkarni, I.L.R.<\/a>\n1955 Bom. 837, disapproved.\nAmarendra Mansingh v. Sanatan Singh, 60 I A. 242, discussed.\nAnant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil, 70\nI.A. 232, discussed.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE, JURISDICTION Civil Appeal No. 499 of 1957.
\nAppeal\tfrom  the judgment and decree dated the\t August\t 17,
\n1954, of the Bombay High Court in Appeal No. 236 of 1950.
\nPurushottam  Trikumdas,\t N.  S. Anukhinda  and\tMr.   S.  K.
\nSastri, for the appellants.\n<\/p>\n
K.   R.: Bengeri and A. G. Ratnaparkhi, for the respondent.
\n1961.  May 5. The Judgment of’ the Court was delivered by.
\nRAGHUBAR.  DAYAL, J. This appeal, on certificate under\tArt.
\n133  of\t the  Constitution,  raises  the  question,  whether
\nDhruvraj,  respondent, on his adoption, divests the  defend-
\nants-appellants\t of the properties- of his  adoptive  father
\nand grandfather.\n<\/p>\n
The facts giving rise to this question are as
\n815<\/span>
\nfollows\t  Bandegouda,  father  of the  respondent,  died  in
\n1882,  predeceasing  his father Narasappa  gouda,  who\tdied
\nlater  in  1892.  Bandegouda left his  widow  Tungabai,\t who
\nadopted Dhruvraj as her son on July 31, 1945.
\nNarasappagouda, on his death, left two daughters, Krishnabai
\nand Shyamabai alias Chamavva.  The two sisters succeeded  to
\ntheir  father’s\t property in equal shares.  We are  not\t now
\nconcerned with the share of Shyamabai, the respondent’s suit
\nwith respect to it having been dismissed.
\nKrishnabai  died  on October 21., 1933.\t  Her  son  Vasappa,
\nsucceeded  her and ‘died on February 20, 1934,\tleaving\t two
\nsons,  the appellants, Krisnamurti and\tSubbaji.   Dhruvraj,
\nrespondent,  instituted\t the suit for the  recovery  of\t the
\nproperty from the two appellants alleging that the immovable
\nproperties  formerly belonged to the ownership of  and\twere
\nunder the vahiwat of the joint family of the above-mentioned
\nNarasappagouda\tPatil and Bandegouda Patil.  The  suit\talso
\nrelated\t to declaration that the plaintiff was\tentitled  to
\nthe  ‘Patilki’ rights in respect of the village\t Hombal,  as
\nthe near relative of Narasappagouda.  The appellants  denied
\nthe  respondent’s rights to the properties  contending\tthat
\nKrishnabai  was\t the full owner of the properties  and\tthus
\nbecame a fresh stock of descent and thatthe  appellants
\nhad inherited the properties fromtheir father\tVasappa to
\nwhom they had been alienated by Krishnabai in 1930. TheHigh
\nCourt held that the alleged alienation by Krishnabai of\t her
\nshare  to Vasappa in 1930 was not binding on the  respondent
\nas it amounted to a gift of immovable properties and was not
\nmade  by, a registered document.  It further held  that\t the
\nrespondent  could divest the appellants ‘of  the  properties
\nwhich belonged to the respondent’s adoptive grandfather\t and
\nupheld\tthe  decree of the trial Court with respect  to\t the
\nproperty which had
\n816<\/span>
\ngone  in the possession of Krishnabai on. the death  of\t her
\nfather.\n<\/p>\n
This  Court  considered the rights of in  adopted  son\twith
\nrespect\t to the property of his adoptive father and  of\t the
\ncollaterals, in Shrinivas     Krishnarao  Kango\t v.  Narayan
\nDeviji\tKango  and Ors-<\/a> (1).  The principles to\t be  adduced
\nfrom what was said in this case may be summarised thus :\n<\/p>\n
(i)An  adopted son is held entitled to take in\tdefeasance
\nof the rights acquired prior to his adoption. on the  ground
\nthat in the eye of law his adoption relates back, by a legal
\nfiction, to the date of the death of his adoptive father, he
\nbeing put in the position of a posthumous son.\n<\/p>\n
(ii) As a preferential heir, an adopted son (a)\t  divests
\nhis  mother of the estate of his adoptive father ;  and\t (b)
\ndivests\t his  adoptive mother of the estate she gets  as  an
\nheir of her son who died after the death of her husband.\n<\/p>\n
(iii)A,\t coparcenary  continues to subsist so  long  as
\nthere  is  in existence a widow of a coparcener\t capable  of
\nbringing a son into existence by adoption; and if the  widow
\nmade  an adoption, the rights of ‘the adopted son.  are\t the
\nsame  as  if he had been in existence at the time  when\t his
\nadoptive  father  died\tand that  his  title  as  coparcener
\nprevails as against the title of any person claiming as heir
\nto the last coparcener.\n<\/p>\n
(iv)The\t principle. of relation back applies only when\tthe
\nclaim  made by the adopted son relates to the estate of\t his
\nadoptive   father.    The  estate  may\t be   definite\t and
\nascertained,  as when he is the sole and absolute  owner  of
\nthe properties, or
\n(1) (1955) 1 S.C.R. 1.\n<\/p>\n
\t\t    817<\/span><\/p>\n
it  may\t be fluctuating as when he is a member\tof  a  joint
\nHindu  family  in which the interest of the  coparceners  is
\nliable to increase by death or decrease by birth.  In either
\ncase,  it is the interest of the adoptive father  which\t the
\nadopted\t son is declared entitle to take as on the  date  of
\nhis  death.   This  principle of  relation  back  cannot  be
\napplied\t when claim made by adopted son relates not  to\t the
\nestate\tof his adoptive father but to that of a\t collateral.
\nWith reference to the claim with respect to the estate of  a
\ncollateral, the governing principle is that inheritance\t can
\nnever be in abeyance, and that once it devolves on a  person
\nwho is the nearest heir under the law, it is thereafter\t not
\nliable to be divested.\tWhen succession to the properties of
\na  person  other then an adoptive father  is  involved,\t the
\nprinciple  applicable is not the rule of relation  back\t but
\nthe rule that inheritance once vested could not be divested.\n<\/p>\n
(v)The\testate continues to be the estate of the  adoptive
\nfather\tin whosoever’s hands it may be, that is, whether  in
\nthe  hands of one who is the absolute owner or one who is  a
\nlimited\t owner.\t  Any  one who inherits the  estate  of\t the
\nadoptive father is his heir, irrespective of the inheritance
\nhaving\tpassed through a number of persons, each  being\t the
\nheir of the previous owner.  This Court considered the\tcase
\nof Amarendra Mansingh v. Sanatan Singh (2) .which related to
\nan  impartible zamindari.  The last of its holder  was\tRaja
\nBibhudendra.   He died on December 10, 1922,  unmarried.   A
\ncollateral, Banamalia, succeeded to the estate as the family
\ncustom\texcluded  females from succeeding to  the  Raj.\t  On
\nDecember  18, 1922 Indumati, mother of Bibhudendra,  adopted
\nAmarendra  to  her  husband, Brajendra.\t  The  question\t for
\ndetermination,\tin  that ease-was  whether  Amarendra  could
\ndivest Barnamalia of the estate, and it was answered in\t the
\npositive by the Judicial Committee.  This Court said at page
\n19:\n<\/p>\n
(2)  1923 L.R. 60 I.A. 249.\n<\/p>\n
     818<\/span><\/p>\n
      “The estate’ claimed was that’ of his adoptive
\n      father,\t  Brajendra, and if the\t       adoption
\n      was at all valid, it related back to     the
\n      date   of\t Brajendra’s  death,   and   enabled
\n      Amarendra to divest Banamalai.”\n<\/p><\/blockquote>\n
 last  holder of the estate was not Brajendra, the  adoptive
\nfather, but Bibhudendra, who may be said to be the  adoptive
\nbrother. The estate in his hands is described as the  estate
\nof Brajendra, the adoptive father. This Court said about the
\ndecision in this case:\n<\/p>\n
      “This decision might be taken at the     most
\n      to be an authority for the position that\t  when
\n      an adoption is made to A, the adopted    son
\n      is  entitled  to recover the estate of  A\t not
\n      merely when it has vested in his widow who  makes
\n      the adoption but also in any other heir  of
\n      his. It is no authority for the contention  that
\n      he is entitled to recover the estate of B\t    which
\n      had vested in his heir prior to his   adoption
\n      to A.”\n<\/p><\/blockquote>\n
Banamalai,  heir  of Bibhudendra, was considered to  be\t the
\nheir of Brajendra also.\n<\/p>\n
In  considering the case of Anant Bhikappa Patil (Minor)  v.
\nShankar Ramchandra Patil(3), this Court observed at page 24
\n      “When an adoption is made by a widow of either
\n      a coparcener   or a separated member  then the
\n      right  of the adopted son to claim  properties
\n      as  on the date of the death of  the  adoptive
\n      father by reason of the theory of\t  relation
\n      back is subject to the limitation that   alienations
\n      made prior to the date of adoption are binding
\n      on  him, if they were for purposes binding  on
\n      the  estate.  Thus, transferees  from  limited
\n      owners  whether they be widows or\t coparceners
\n      in joint family, are amply protected.   But no
\n      such safeguard exists in respect
\n(3)  1933 L.K. 70 I.A. 232.\n<\/p>\n
\t\t    819<\/span><\/p>\n
      of property inherited from a collateral, beca-
\n      use  if  the adopted son is  entitled  on\t the
\n      theory   of  relation  back  to  divest\tthat
\n      property\tthe  position of  the  mesne  holder
\n      would  be that of an owner possessing a  title
\n      defeasible  on   adoption, and the  result  of
\n      such adoption must be to extinguish that title
\n      and  that of all persons claiming\t under\thim.
\n      The   alienees   from  him   would   have\t  no
\n      protection,  as there could be no question  of
\n      supporting  the alienations on the  ground  of
\n      necessity or benefit.”\n<\/p>\n
It follows from these observations that if A is an owner  of
\nproperty possessing a title defeasible on adoption, not only
\nthat title but also the title of all persons claiming  under
\nhim, will extinguish on the adoption.\n<\/p>\n
In  the present case, Krishnabai owned the property as\tfull
\nowner  on the death of her father Narasappagouda,  according
\nto  the Hindu law in the area in which the property in\tsuit
\nlay.   But  her title was defeasible on Tungabai,  widow  of
\nBandegouda,  adopting  a son to her  husband.\tVasappa\t and
\nafter  him, his sons, inherited this property of  Krishnabai
\nand  thus  the appellants claimed under\t Krishnabai.   Their
\nsuch claim is therefore defeasible on the adoption of a\t son
\nby  Tungabai.\tThe  fact  that\t Krishnabai  inherited\t the
\nproperty  of  her father absolutely, does  not\taffect\tthis
\nquestion of title being defeated on the adoption of a son by
\nTungabai.  The character of the property does not change, as
\nsuggested  for the appellants, from coparcenary property  to
\nself-acquired  property of Krishnabai so long  as  Tungabai,
\nthe widow of the, family, exists and is capable of  adopting
\na son who becomes a coparcener.\n<\/p>\n
The case of in adopted son’s claiming to divest the heir  of
\na  collateral, who died before the, adoption took  place  of
\nthe  property  inherited from the collateral,  is  different
\nfrom the case of his
\n820<\/span>
\nclaiming  the  property\t which originally  belonged  to\t the
\nadoptive father but had devolved on a collateral and,  after
\nthe  death  of the collateral. which took place\t before\t the
\nadoption  devolved  on\ta hee of thir  collateral.   In\t the
\nformer case, the claim is to the property of the collateral,
\nwhile  in  the\tlatter case it is to  the  property  of\t the
\nadoptive  father,  which,  by force  of\t circumstances,\t had
\npassed through the hands of a collateral.
\nWe  may now consider the Full Bench Case of the Bombay\tHigh
\nCourt, Ramchandra Hammant Kulkarni v. Balaji Datto Kulkarni,
\n(4)  which overruled the judgment in the instant case.\t The
\nquestion formulated for the decision of the Full Bench was
\n      “If  on the death of a sole  surviving  copar-
\n      cener his property has devolved upon his\their
\n      by inheritance and on his death it has  vested
\n      in his own heir, would the subsequent adoption
\n      in the family of the sole surviving coparcener
\n      divest it from such heir?”.\n<\/p>\n
The  facts having a bearing on the decision of the  question
\nwere  as  follows  : Ramchandra and  Balaji  were  brothers.
\nRamchandra  died on October 10, 1903, and his widow  Tarabai
\ndied  two  days later.\tTheir son Hammant  had\tdied  during
\nRamchandra’s lifetime, leaving behind him his widow Sitabai.
\nThe  Watan property of Ramchandra devolved on  Balaji  after
\nthe  death  of Tarabai.\t On Balaji’s death, it\tdevolved  on
\nDatto his son who died in 1916.\t On his death, the  property
\ndevolved  upon his son Balaji.\tSitabai, widow\tof  Hanmant,
\nadopted\t Ramchandra, the plaintiff, on.\t January  21,  1945.
\nRamchandra  thereafter instituted the suit  against  Balaji,
\nson  of\t Datto, and claimed that property  which  originally
\nbelonged to his a adoptive family on the ground that he\t was
\nentitled  to  recover  it by virtue of\this  adoption  which
\nrelated
\n(4)  I.L.R 1955 Bom. 837.\n<\/p>\n
821<\/span><\/p>\n
back to the date of the death of his adoptive father.
\nChagla,\t C. J., delivering the judgment of the Court in\t the
\nabove case said, in answer to the question formulated,\tthat
\nthe  subsequent\t adoption in the family the  sole  surviving
\ncoparcener  would  not divest the  property,  assuming\tthat
\nRamchandra, the adoptive grandfather. was the sole surviving
\ncoparcener  of\this  own branch and that on  his  death\t the
\nproperty  devolved  upon Datto and then\t upon  Balaji.\t The
\nlearned\t Chief\tJustice,  in  considering  the\tquestion  on
\nprinciple, said at page 851 :\n<\/p>\n
      ”\t … and therefore it is well settled  since
\n      the  Privy  Council decided Anant\t v.  Shankar
\n      that Dattu inherited this property subject  to
\n      defeasance.,  the defeasance coming into\tope-
\n      ration  in the event of the  potential  mother
\n      Sitabai  adopting\t a son into  the  family  of
\n      Ramchandra.”\n<\/p><\/blockquote>\n
He said at the page 852
\n      “Balaji  has  succeeded to the estate  of\t his
\n      father Dattu and what the plaintiff is  really
\n      claiming is not the property of Ramchandra but
\n      the   property  of  Dattu\t which\tBalaji\t has
\n\t\t    inherited as his son…. Therefore, really, the
\n      plaintiff\t would have displaced Dattu  as\t the
\n      preferential heir to his own grandfather.\t But
\n      it   is  difficult  to  understand  how\tthat
\n      principle\t can apply when we are dealing\twith
\n      property\tin  the hands of  Dattu’s  heir’  It
\n      cannot  be said that qua the estate  of  Dattu
\n      the  plaintiff  is  an  heir  preferential  to
\n      Balaji,  and  really  what  the  plaintiff  is
\n      claiming is to displace Balaji and to  contend
\n      that lie is heir of’ Dattu.”\n<\/p>\n
      He therefore expressed the view
\n      “‘Therefore,  ill our opinion, once the  prin-
\n      ciple is accepted, as indeed it must be accep-\n<\/p>\n
      822<\/span><\/p>\n
      ted,  that the property which Dattu  inherited
\n      from Ramchandra was held by him absolutely  as
\n      a full owner, then it is impossible to  accede
\n      to  the  plaintiff’s  contention\tthat  Balaji
\n      inherited to that property subject to  certain
\n      limitations.  The possibility of there being a
\n      defeasance only continued so long as Dattu was
\n      alive.   When  he died he left  his  property,
\n      which  was his absolute property, to his\their
\n      and  there is no reason in principle why\tthat
\n      provision\t with  regard to  defeasance  should
\n      continue after the property had been inherited
\n      by Balaji as the heir of Dattu.”\n<\/p>\n
We  may say at once that this conclusion goes  against\twhat
\nhad been said by this Court in Shrinivas Krishnarao  Kango’s
\nCase (1).\n<\/p>\n
It  has\t been  overlooked  that the  heir  of  a  collateral
\nsucceeding  to\tthe sole surviving coparcener  inherits\t the
\nproperty absolutely, but subject to defeasance, and that the
\nright  in  the\tproperty  devolves on  his  heir,  who\tmust
\nconsequently  take  that  property  absolutely,\t but   still
\nsubject\t to defeasance, as no better title could  have\tbeen
\ninherited  so  long  as there was  the\tpossibility  of\t the
\ndefeasance  or the absolute title by a widow of a family  of
\nthe  last  surviving  coparcener  adding  a  member  to\t the
\ncoparcenery  by adopting a son to her deceased husband,\t and
\nin  overlooking what was stated in this connect ion by\tthis
\nCourt  in Shrinivas Krishnarao Kango’s Case (1), though\t not
\nas  a decision, but as a reasoning to come to a decision  in
\nthat case.\n<\/p>\n
We are therefore of opinion that this appeal should fail and
\naccordingly dismiss it with costs of this appeal.
\n(1)  (1955) 1 S.C.R. 1.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
\t\t    823<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Krishnamurthi Vasudeorao … vs Dhruwaraj on 5 May, 1961 Equivalent citations: 1962 AIR 59, 1962 SCR (2) 813 Author: R Dayal Bench: Dayal, Raghubar PETITIONER: KRISHNAMURTHI VASUDEORAO DESHPANDE AND ANR. Vs. RESPONDENT: DHRUWARAJ DATE OF JUDGMENT: 05\/05\/1961 BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K. CITATION: 1962 AIR 59 1962 SCR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-67435","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKrishnamurthi Vasudeorao ... vs Dhruwaraj on 5 May, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/krishnamurthi-vasudeorao-vs-dhruwaraj-on-5-may-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Krishnamurthi Vasudeorao ... vs Dhruwaraj on 5 May, 1961 - 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