# Shrinivas Krislmarao Kango v. N 61a)an Devji Kango IJlid Others

- **Citation:** [1955] 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 164 of 1952
- **Bench:** B. K. MuKERJEA, Ghulam Hasan, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shrinivas-krislmarao-kango-v-n-61a-an-devji-kango-ijlid-others-372
- **Pages:** 25

## Headnote

' j
l
Hindu law-Joint family-Whether
there is presumption that
property held by any member thereof is joint-Existence of some
nucleus-Burden of proving self-acquisition-Property in
possession
of a family
from
time immemorial-Presumption whether it is
ancestral-Adoption-Rights acquired by adoptive son· relating back
to date of death of
adoptive fathe1·-Doctrine of relation backW hether applicable to estate of a collateral.
·
It is well-settled that proof of the existence of a Hindu joint
family does not lead to the presumption that property held by any
member of the family is joint and the burden rests upon any one
asserting that any item of property was joint to establish the fact.
But where it is established that the family
possessed
some joint
property which from its nature and relative value may have formed the nucleus from which the property in question may have been
acquired the burden shifts to the party
alleging self-acquisition to
establish affirmatively that the property was acquired without
the
aid of the joint family property.
Held, that on the facts
the nucleus was not sufficient to
discharge the initial burden which lay on the plaintiff of proving
that the acquisitions were made with the aid of joint family properties.
Held, further, that even if the burden shifted on the defendants of establishing self acquisitions that had been
discharged by
proof and the ancestral
lands were intact and the income derived
therefrom must
have
been utilized for the maintenance
of the
members of the family.
While it is not 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, a property is
found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it is ancestral
and
to
throw the
burden on the party pleading self-acquisition to
establish it.
On adoption by the Hindu widow, the adopted son acquires all
the rights of an aurasa son and those rights relate back to the date
of the death of the adoptive father.
The ground on which an adopted son is _ held entitled to take
in defeasance of the rights acquired prior to his adoption is that in
195+
March 23.
1954
Shrinivas
Krislmarao
Kango
v.
N 61a)an Devji
Kango IJlid Others.
2
SUPREME COURT REPORTS
[1955]
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.
These principles, however, apply only when the claim of the
adopted son
relates to the estate .of the adoptive father.
But
where succession to the properties of a person other than an adoptive father is involved the principle applicable is not the rule of
relation· back but the rule that inheritance once vested could not
be divested.
T\le
decision
to
the
contrary
in
Anant Bhikappa
Patil
(Minor) v. Shankar Ramchandra Patil (70 I.A. 232) dissented from.
Appalaswami v.
Suryanarayanamurti
(I.L.R.
1948
Mad. 440
at 447, 448); Babubhai Girdharal v.
Ujamlal Hargovandas (I.L.R.
1937 Born. 708);
Venkataramayya v.
Seshamma
(I.L.R.
1937
Madras 1012);
Vythianatha v. Varadaraia (1.L.R.
1938
Madras
696}; Pratapsing Shivsing v. Agarsingii Raisingji ( 46 I.A. 97 at
107); Vellanki Venkata v. Venkatarama (4 I.A. 1); Verabhai v. Bhai
Hiraba (30 I.A. 234) ; Chandra v. Gojarbai (1.L.R. 14 Born. 463) ;
Amarendra Mansingh
v.
Sanatan
Singh
(60 I.A. 242); Bait'
Sakharam v. Lehoo Sambhoji (l.L.R. 1937 Born. 508);
Neelangoudo
Limbangouda v. Ujjan Gowda (A.LR. 1948 P.C. 165; 50 Born. L.R ·
682); Bhubaneswari Debi v. Nilkomul Lahiri (12 I.A. 137) : Kally
Prosonno Ghose v. Gocool
Chunder Mitter (1.L.R. 2 · Cal. 293) ;
Nilkomul Lahuri v. fotendro Mohan Lahuri (I.L.R. 7 Cal.
178) ;
Raghunandha v. Brozo Kishoro (3 I.A. 154); Bachoo Hurkisondas v.
Mankorebai (34 I.A. 107) ; Vijaysingji Chhatrasingii v. Shivasangji
Bhimasangji
(62
I.A.
161); Kalidas v. Krishnachandra Das (2
B.L.R. · 103
F.B.)
referred
to
fi

## Text

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THE SUPREME COURT REPORTS
SHRINIV AS KRISHNARAO KANGO
ti.
NARAYAN DEVJI KANGO AND_ OTHERS.
[B. K. MuKERJEA, GHULAM HASAN and
VENKATARAMA AYYAR JJ.]
' j
l
Hindu law-Joint family-Whether
there is presumption that
property held by any member thereof is joint-Existence of some
nucleus-Burden of proving self-acquisition-Property in
possession
of a family
from
time immemorial-Presumption whether it is
ancestral-Adoption-Rights acquired by adoptive son· relating back
to date of death of
adoptive fathe1·-Doctrine of relation backW hether applicable to estate of a collateral.
·
It is well-settled that proof of the existence of a Hindu joint
family does not lead to the presumption that property held by any
member of the family is joint and the burden rests upon any one
asserting that any item of property was joint to establish the fact.
But where it is established that the family
possessed
some joint
property which from its nature and relative value may have formed the nucleus from which the property in question may have been
acquired the burden shifts to the party
alleging self-acquisition to
establish affirmatively that the property was acquired without
the
aid of the joint family property.
Held, that on the facts
the nucleus was not sufficient to
discharge the initial burden which lay on the plaintiff of proving
that the acquisitions were made with the aid of joint family properties.
Held, further, that even if the burden shifted on the defendants of establishing self acquisitions that had been
discharged by
proof and the ancestral
lands were intact and the income derived
therefrom must
have
been utilized for the maintenance
of the
members of the family.
While it is not 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, a property is
found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it is ancestral
and
to
throw the
burden on the party pleading self-acquisition to
establish it.
On adoption by the Hindu widow, the adopted son acquires all
the rights of an aurasa son and those rights relate back to the date
of the death of the adoptive father.
The ground on which an adopted son is _ held entitled to take
in defeasance of the rights acquired prior to his adoption is that in
195+
March 23.
1954
Shrinivas
Krislmarao
Kango
v.
N 61a)an Devji
Kango IJlid Others.
2
SUPREME COURT REPORTS
[1955]
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.
These principles, however, apply only when the claim of the
adopted son
relates to the estate .of the adoptive father.
But
where succession to the properties of a person other than an adoptive father is involved the principle applicable is not the rule of
relation· back but the rule that inheritance once vested could not
be divested.
T\le
decision
to
the
contrary
in
Anant Bhikappa
Patil
(Minor) v. Shankar Ramchandra Patil (70 I.A. 232) dissented from.
Appalaswami v.
Suryanarayanamurti
(I.L.R.
1948
Mad. 440
at 447, 448); Babubhai Girdharal v.
Ujamlal Hargovandas (I.L.R.
1937 Born. 708);
Venkataramayya v.
Seshamma
(I.L.R.
1937
Madras 1012);
Vythianatha v. Varadaraia (1.L.R.
1938
Madras
696}; Pratapsing Shivsing v. Agarsingii Raisingji ( 46 I.A. 97 at
107); Vellanki Venkata v. Venkatarama (4 I.A. 1); Verabhai v. Bhai
Hiraba (30 I.A. 234) ; Chandra v. Gojarbai (1.L.R. 14 Born. 463) ;
Amarendra Mansingh
v.
Sanatan
Singh
(60 I.A. 242); Bait'
Sakharam v. Lehoo Sambhoji (l.L.R. 1937 Born. 508);
Neelangoudo
Limbangouda v. Ujjan Gowda (A.LR. 1948 P.C. 165; 50 Born. L.R ·
682); Bhubaneswari Debi v. Nilkomul Lahiri (12 I.A. 137) : Kally
Prosonno Ghose v. Gocool
Chunder Mitter (1.L.R. 2 · Cal. 293) ;
Nilkomul Lahuri v. fotendro Mohan Lahuri (I.L.R. 7 Cal.
178) ;
Raghunandha v. Brozo Kishoro (3 I.A. 154); Bachoo Hurkisondas v.
Mankorebai (34 I.A. 107) ; Vijaysingji Chhatrasingii v. Shivasangji
Bhimasangji
(62
I.A.
161); Kalidas v. Krishnachandra Das (2
B.L.R. · 103
F.B.)
referred
to
fivaji
Annaji
v.
HanmanJ
Ramchandra (1.L.R. 1950 Bombay 510) approved.
CIVIL
APPELLATE
JuRISDicTION:
Civil
Appeal
No. 164 of 1952.
Appeal from the Judgment and Decree dated the
:12th August, 1949, of the High Court of Judicature at
·Bombay in Appeals Nos. 63 and 148 of 1947, from· Original Decree, arising out of the Decree dated the 31st
July, 1946, of the Court of the Civil Judge, Seriior
Division, Bijapur, at
Bijapur in Special Civil Suit No.
'28 of 1945.
J. B. Dadachanji and N aunii Lal for the appellant.
S. B. fathar and Ratnaparkhi Anant Govind for
the respondents.
1954.
Mar~h 23. The Judgment of the Court was
delivered.by VENKATARAMA AYYAR J.
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S.C.R.
SUPREME COURT REPORTS.
3
VENKATARAMA AYYAR J.-This appeal arises out of
:a suit for partition instituted by the appellant m the
Court of the Civil Judge, Senior Division, Bijapur. The
relationship of the parties will appear from the following genealogical table :
Ramchandra
. I
S1ddopant
alias Sadashiv
(d. 1899)
I
Gundo m. Laxmibai (D-5)
I
Devji m. Akkubai(D-4)
(adopted)
d. 6-9-1935.
l
I
I
I
Narayan
Raghavendra
D-1
D-2
I
I
Krishnarao
(d. 1897)
m. Rukmini
(D-6)
I
Shrinivas
(adopted son)
plaintiff
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 defendant in the suit. Siddopant died in 1899 leaving him
surviving his son, Gundo, who died in 1901 leaving behind a widow, Lakshmibai, who is the fifth defendant.
On 16th December, 1901,
Lakshmibai adopted
Devji,
who died on 6th May, 1935, leaving three sons, defendants 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 the
present suit for partition claiming a half share in the
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.
Nar4pan Derji
K ango and Others •
Venkaiarama
A)!Yar J .
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 Ukarnnal 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
two 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. It 1s
the plaintiff's case that 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.
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 in
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
recover them from his sons. In the alternative, he
claims a half share in them on the ground that they had
been blended with the admitted joint family properties.
The defendants denied the truth and validity of the
plaintiff's adoption. They further contended
that the
only ancestral properties belonging to the family were
the Watan lands in the villages of Ukamnal and Katakanhalli, that
the purchases made by Siddopant were
his self-acquisitions, that the suit houses were also built
with his separate funds, and that the plaintiff was not
entitled to a share therein. With reference to the properties in Schedule C, they pleaded that the plaintiff
could not by reason of his adoption divest Devji of the
properties which had devolved on him as heir. They
denied that those properties had been blended with the
joint family properties.
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 the
house built by Devji. The trial Court held that· the
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S.C.R. ·
SUPREME COURT REPORTS
5
plaintiff was entitled to a half share
in S. Nos. 639
and 640 in Schedule A on the ground that they belonged
to the family as
ancestral properties ; but the High
Court held that that had not been· established. · As ·
regards the properties set out in Schedule C, while the
trial Court decided that the appellant was entitled to
them exclusively under the decision of the Privy Council in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil( i), the High Court held following a Full
Bench decision of that Court in /ivaji Annaji v. Hanmant Ramchandra(2), that they
belonged exclusively
to Devji, and that the plaintiff could lay no claim to
them. Both the Courts agreed in negativing the contention of the plaintiff that there had been a blending of
these properties with
the joint family
properties.
In
the result, the High Court granted a decree in favour
of the plaintiff
for partition of the admitted Watan
lands,
and otherwise dismissed
the suit.
The present
appeal is preferred against this decision.
The first contention that has been urged on behalf of
the appellant 1s that the finding of the Courts below
that the
properties purchased
by Siddopant and the
houses constructed by him and Devji were self-acquisitions, is
erroneous, firstly
because the burden was
wrongly cast on the plaintiff of proving that they were
made with the aid of joint family funds, and secondly
because certain documents which had been
tendered
in evidence by the plaintiff had been wrongly rejected
as inadmissible. On the first question, the argument
of the appellant is that as the family admittedly possessed
income-producing
nucleus
m
the
ancestral
W atan lands of the extent of 56 acres, it must be presumed that the acquisitions standing in the name
of Siddopant
were
made with the aid of joint
family funds, that the burden lay on the defendants who claimed that they were self-acquisitions to
establish that they were made without the aid of joint
family funds, that the evidence adduced by them fell
far short of it, and that the presumption in favour· of
the plaintiff stood
unrebutted. For deciding whether
this contention is well-founded, it is
necessary
to see
(1) 70 I. A. 232.
(2) I. L. R. 1950 Born. 510.
1954
Shrinivas
Krishnal'a•
Kango
v.
Narayan Det/ji
/(an go and Others •
Venkatarama
AyyarJ.
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 the ancestral properties, the income they
were yielding, the amounts that were invested by
Siddopant m the purchases and house constructions,
and the other resources that were available to him.
On the question of the nucleus, the only properties
which were proved to belong to the joint family were
the Watan lands· of the extent of about 56 acres, bearing an annual assessment of Rs. 49.
There is no satisfactory evidence about the income which 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
into the family by marriage long after the nineties, and
were then very . young. The lessee who cultivated the
lands of Swamirao, who owned a share in the Watan
lands equal to that of Siddopant and Krishnarao, deposed that the net income was Rs. 30 per annum. ·On
a consideration of the entire evidence, the trial Court
put the annual income at Rs.
150.
On appeal, the
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
acre was an indication that the lands were of poor
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
from
the lands could not have been sufficient even for maintenance.
•
•
Coming next to the acquisitions, on 21st May, 1871,
·•
Siddopant purchased under Exhibit D-36 a house
for
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~-
.i.
chased under Exhibit D-64 lands bearing S. Nos. 2025
and 2140 for Rs. 2,400. In this suit, we are concerned
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$.C.R.
SUPREME COURT REPORTS
7
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
have accepted this evidence. It was
argued for the
appellant that these witnesses had no first-hand knowledge of
the constructions, and that 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
of Hyderabad, and was in service for a period of 40
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
lower Courts came to the conclusion that having regard 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 initial burden which lay on the plaintiff of
establishing that the properties of which a division was
claimed were joint family properties had not been discharged. The law was thus stated in that case :
"The Hindu law upon this aspect of the case is
well settled. Proof of the existence of a joint family
does not lead to the presumption that property held by
any member of the family is joint, and the burden rests
upon anyone asserting that any item of property
was
joint to establish the fact. But where it is established
that the family possessed some joint property which
from 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
Shrinivas
Krishnarao
Kango
v.
Narayan Deqji
Kaogo and Othe;s •
V enkatarama
4var J.
1954
Shrinivtu
Krishn"arao
Kango
v.
· Nar41an Devji
Kongo and Ot4efs.
Venkatarama
. AyyarJ.
8
SUPREME COURT REPORTS
.[1955]
have been ·acquired, the burden . shifts to the· party
alleging self-acquisition
to establish
affirmatively
that
the property was acquired without the aid of the joint
family property :
See Babubhai
Girdharlal v. Ujamlal
Hargovandas (' ),
Venkataramayya v.
Seshamma(2 )
Vythianatha v. Varadaraja (3 )."
It is argued for the appellant that in that case the
father had obtained under the partition deed, Exhibit
A, properties of the value of Rs. 7,220, that he acquired
properties of the value of Rs. 55,000, and that nevertheless, it was . observed by the Privy Council that "the
acquisition by
the
appellant of the property under
Exhibit A, which as between him and his sons was
joint family
property, cast upon the appellant (the
father) the burden of proving that the property which
he possessed at the time of the plaint was his selfacquired property" ;
and that
therefore on proof that
there existed ancestral lands of the extent of 56 acres,
the burden was shifted on to tht defendants to establish self,acquisition.
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 to consider is
the
income which the nucleus yields. A building in the
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 conceivably produce substantial income,
which may
well
form the foundation
of
the
subsequent
acquisitions.
·These are not abstract questions of law, but questions
of fact to· be"determined on the ·evidence in 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 the
acquisitions in question were made during a "period of
(t) I.L.°R. 1937 Bom. 708.
(3) I.L.R. 1938 Mad. 696.
(•) I.L.R. 1937 Mad. 1012.
(4) I.L.R. 1948 Mad. 440.
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S.C.R.
SUPREME COURT ·REPORTS
9
16 years it was possible that the joint . family income
might have contributed therefor. But in the present
case, the finding of the Courts is that the income from
the lands was not sufficient even for the maintenance
of the members, and on that they were right in holdmg that the plaintiff had not discharged the initial
. burden which lay on him. But even if we are to accept
the contention of the appellant that on proof of the
existence of the W atan lands the burden had shifted on
to the defendants to prove that the acquisitions were
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 ), in
holding
that the father had discharged the burden of provmg
that the acquisitions were his own, the Privy Council
observed:
"The evidence establishes that the property acquired by the appellant under Exhibit A is substantially intact, and has been kept distinct. The mcome
derived from the property and the small sum derived
from the sale of part of it have been properly applied
towards the expenses of the family, and there is no
evidence from which it can be held that the nucleus of
joint family property assisted
the appellant m the
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
utilised for the maintenance of the members of the
family. Whether we hold, as did the learned Judges
of the High Court, that the plaintiff had failed to discharge the burden which lay on him of establishing
sufficient nucleus, or that the defendants had discharg-
.ed the
burden of establishing that the
acquisitions
'were made without the aid of joint family· funds, the
result is the same. The contention of the appellant that
the findings of the Courts below are based on a mistaken view as to burden of proof and are m consequence erroneous, must fail.
(1) I.L.R. 1948 Mad. 44,0.
1954
Shrinivas
Krishnarao
Kango
v.
Narayan Devji
Kango and Others •
Venkatarama
.dyyar J.
1954
Skrinivas
Krishnarao
Kango
v .
..
Narayan Devji
Kango and Others.
Venkataramo
Ayyar :J.
l'J.0
, SUPREME COURT REPORTS
[1955]
It was next contended that certain documents which
we~e tendered in evidence had been wrongly rejected by
the Courts below, and that the finding of self-acquisition reached
without
reference to those
documents
should not be
accepted. These documents are judgments in two suits for maintenance instituted by Rukminibai 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
produced before the trial Court on 17th
July,
1946,
along _with _28 other documents when the hearing was
about to commence and were rejected. On appeal, dealing with the complaint of the plaintiff that these documents had
been wrongly rejected, the High Court
observed:
"Apart from the fact that 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."
The argument of the appellant is that these judgments are admissible under section 13 of the . Evidence
Act as instances in which there was an assertion that
the suit properties belonged to the joint family.
For
the respondents, it is contended that the dispute between the parties in. those litigations was only about the
quantum of maintenance to be awarded, that no question
of title to the properties was directly involved, and
that section 13 was
inapplicable. We are unable to
accept. this contention. The amount of maintenance to be
awarded would depend on the extent of the joint family
properties, and an issue was actually framed on that
question. Moreover, there was a prayer that the maintenance should be charged on the family properties,
and the same was granted. We are of opinion that
the jud gm en ts
are
admissible under section
13 of
the Evidence Act as assertions 'of ·Rukminibai that
the properties now m dispute belonged. to the joint
family.
~-"" r(.;.i;;.:.:J
-~-
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r
••
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. '
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)
S.C.R.
SUPREME. COURT REPORTS
11
But there is another difficulty in the' way of the reception of this evidence. It was contended
by the res•
pondents on the basis of the observations in the judgment of the High Court already extracted that the real
ground of rejection was that the documents were produced late. The order of the trial Court rejecting the
document has not been produced before us.
But there
is on the record a petition filed by the plaintiff
on 25th
July, 1946,
after the evidence was closed and before
arguments were addressed, for the admission of the 32
documents rejected on 17th July,
1946, and therein it
is stated that "they have been rejected on the ground
of late production." The defendants endorsed on this
petition that if the documents were
to be
admitted at
that stage, an opportunity would have to be given to
them to adduce evidence and the trial would have to
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 that
order and reopening the whole case.
This
ground of
objection must therefore fail.
Apart from the Watan lands which are admittedly
ancestral, and apart from
the purchases
made under
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
have been constructed. The contention of
the plaintiff is that they
are
ancestral
properties. The trial
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
generally that the evidence relating to the house ·sites
was not clear, "when they were acquired or by whom",
and that in the absence of evidence showing that they
formed part of the joint family · properties, they ni.ust
be held to be self-acquisitions. With respect; we are
unable to agree with 'this view.
While . it. is· noi:
2-86 S. C. India/ 59
1954
Shrinivas
Krishnarae
Kango
v.
Narayan Devji
Kan go and 0 tilers •
V enkatarama
AJyar J.
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,
a property. is found to have been in the possession of a
family from time immemorial, it is not unreasonable to
presume that it is ancestral and to throw the burden
on the party pleading self-acquisition to establish it.
It is necessary in this view to examine the evidence
relating to the several plots for which no title deeds
have
been
produced.
S. Nos. 634 and 635 form one
block, on which one of the houses has been constructed.
The sanads relating to them are Exhibits D-45 and
D-46, and they merely recite that the grantee was in
occupation of the plots, and that was confirmed. There is
reference in them to a previous patta granted by the
Government.
Exhibits 52 to 55
are
pattas showing
that the properties comprised therein had been acquired from the Government· If the identity of S. Nos.
634 and 635 with the properties comprised in these
documents had been established, the plea that they are
not ancestral would have been made out. But that has
not been done, and the presumption in favour of their
being ancestral property stands unrebutted. The claim
of the plaintiff to a half share therein must be allowed.
S. Nos. 639, 640 and 641 form one block, on which
there is another house standing. There is no title deed
for S. No. 639.
Exhibit D-47 is the sanad for S. No.
640, and it merely recognises the previous occupation
by the grantee, and that is consistent with its character
as ancestral property. Exhibit D-48
is
the sanad for
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.
The relative sanads are respectively Exhibits D-49,
D-50 and D-51. Their contents are similar to those .of
Exhibits D-45 and D-46, and for the same reasons,
these plots must be held to belong to .the joint family.
We have next S. No. ·622 on which there stands a house.
It is clear from Exhibit D-43 that this was purchased
by Devji at a Government auction in the year 1909.
The plaintiff can lay
no claim to it. Then there is
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•
S.C.R.
SUPREME COURT ;REPORTS
13
S. No. 643. The oral evidence relating to this is that a
family temple stands on it.
It cannot
be
partitioned.
In the result, it must be held that the plots, S. Nos.
634 and 635, S. Nos. 639, 640 and 641 and S. Nos. 642,
644 and 645
are ancestral properties,
and that the
plaintiff is entitled to a half share therein. As substantial superstructures
have
been
put
thereon,
the
appropriate relief to be granted to the plaintiff is that
he be given half the value of those plots as on the date
of the suit.
It remains to deal with the claim of the plaintiff for
possession of C Schedule· properties on the ground that
by adoption he became the preferential heir of Swamirao and is consequently entitled to divest Devji and hi~
successors of these properties.
The contention of the
appellant based on the decision of the Privy Council in
Anant Bhikappa Patil (Minor) v. Shankar Ramchandra
Patil (1 ) is that on adoption the adopted son acquires
all the rights of an aurasa son, that these rights relate
back to the date of the death of the adoptive father,
and that in consequence his right to share in the joint
family properties and to inherit from 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 relation back does not extend to properties which are
inherited from a collateral. The question thus raised
1s
one of considerable importance, and involves a
decision as to the correctness of the law as laid down in
Anant Bhikappa Patil (Minor) v. Shankar Ramchandra
Patil ( ).
Considering the question on principle, the ground on
which an adopted son is held entitled to take in defeasance 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 Shivsing v. Agarsingji Raisingji( 3 ),
(1) 70 I.A. 232.
(3) 46 I.A. 97 at 107.
(2) I.L.R. 1950 Born. 510.
1954
Shriniv11S
Krishnarao
Kango
v.
Narqyan Devji
Kango and Others.
V•nkatarama
AyyarJ.
1954
Shrinivds
Krishnarao
Kango
v.
Narayan Devji
Kango and Others.
Venkatarama
AyyarJ.
14
SUPREME cbtJRT REPORTS
[19551
·"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;
so ·far as' the
continuity of the line 'is concerned, . has' a retrospective
effect ; 'when ever the adoption ' may be
made'. there
is
no hiatus
in· the continuity' of the line.
In· fact,
as
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 continuation of the line by adoption impossible."
It is oh this principle that when a widow succeeds to
her husband's estate as · heir and then makes an adoption, the adopted son is ·' held entitled, ·as preferential
heir, to divest her of· the estate. · It is· on the
same
principle that
~hen a s011
dies u_nmarried · and his
mother succeeds to his estate as his heir; · and then
makes ·an adoption to ·her husband, that 'adopted
son
is held · entitled to divest her of the estate. (Vide
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.
If a joint family
consisted of two brothers A and B; and. A died leaving a
widow W and the ·properties were taken by survivorship by • B,
and then W took a boy X in adoption, the
question was whether the adopted
son could claim a
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 ieaving ·no .. son but a· widow· C and· the estate. ·devolves on
her; can .w thereafter make· an adoption ·so as to confer any ·rights on X to ·the estate 'in the .. hands of C ?
It was held in Chandm v. Gojarabai (
3
) that the power
to make an adoption so· as to confer
a• right on tl1e
adopted · . .-son . could be exercised only .so long as the
coparcenary of. "which the· adoptive .father .was a member subsisted, and that when' the.-last of ,the ·coparceners
died and the .. properties thereafter devolved on .his
(1) 4 I.A. 1.
. (3) rhR. '4 Born. 463.
(2) 30 I.A. 234.
_;
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S.C.R,.
15.
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 .the adopti_on would :be,,: vaJi9,:; bcl\t
that the .estate, 'Yhic;h had devolved,,. upon the heir.~oμlP,
not be .divested. In Ariant ,f3hikappa Pa#l CMitJor): .v.
Shankar Rarnr:handra._ Patil .{
4
) .,.the, Privy,, Council-... div
sented: from this view, · and
b;e~9· that, the,.copan:,enary
.... must be held .to . : subsist' so loI).g
as. . there, wa~ jp., existence : a widow of a, : cpparc.ener . ,capa,ble of . , bring "ii
son .. into existence by adqption,, and if sh~ ma,de ~n
adoption, the rights of. the adopted. son :would l;ie Ahe
same as if he had been ~n existence at. the time when
his adoptive Jathei; died, . ~n<:l that, :his . title ·<J.1i '. .copaFcener would prevail as against the title of any person
claiming as' hei'r "of· the. last·· toparcener. 'In · ·subsfance,
the estate in the hands !of such heir 'w'as treated as . impressed with
the 'character of< fopaicenaiy
pi;opetty : so
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). ·
· · ·: ·'
Thus .··far, "th~ ;~ope of. the prillclp1e. of rdatio~ . back
is clear. It applies only when 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 cnparceners is liable to increase ·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
(1) 46 LA. 97.
" ' ·(4) fo LA: 123cl.i ·
"
· ..
.. ":.'' -'
(2) So LA. 242.r
(:,).'A.LR. :i948•P,C:16s::50 Bom:1L.R;·63~',
1 '
(3) I.L.R. 1937,lloJ111508. :. .
.; ._.
·; · ··'
· •
Shrinivas
Krishnarao
Kango
v.
N ara)'an Devji
Kan go and 0 thers.
Venkatarama
Ayyar J.
1954.
Shriniuas
KrUhruriao
Kango
v.
N ar41an Devji·
Kango and Others.
Y enkatarama
AyytJT J.
16
SUPREKiE I COURT 'REPORTS.
[1955], J,
detetniination now is · whether this doctrine of
relation
back can be applied when the· daim made by the adopted son relates not to the estate of his ·adoptive father
but of a collateral. The theory on which this doctrine is
based is that there should be no hiatus in the continuity
of the line of the adoptive father. That, by its very
nature, ·can apply only to him and ·not to his collaterals.
In the Oxford Dictionary
the word . "collateral" is
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
until we come to the decision in Anant Bhikappa Patil
(Minor) v. Shankar Ramchandra Patil('), which applied
the theory of relation back ·to the properties
inherited
from collaterals. With reference to them, the governing principle
was
that · inheritance can never be in
abeyance, and that once it devolves on a person who
is the nearest heir under the law, it is thereafter not
liable to be divested. The law is thus stated in Mulla's
Hindu Law, 11th Edition, at pages 20 and 21 :
uon the death of a Hindu, the pers~n who is then
his
nearest heir becomes entitled ·at once
to the property 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 remain 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.
"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 the time of his . death, or by adoption in .
certain cases.of a son to'the deceased." ..
In.' Bhubaneswari .. Debi'v. Nilkomul Lahiri( 2 ), the
facts were·,, that .Chandmoni,. the .. widow of one Rammohun, ... died' on . '15th June,.
1867,
and , the estate
devolved
on his
nephew; Nilkomul as reversioner.
Subsequentlyr .. Bhubaneswari' Debi, the
widow . of a
(1) 70 I.A. 232.
(2) 12 I A. 'lg7.
;i
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"
S.C.R.
SUPREME COURT REPORTS
17
brother of
Rammohun called Sibnath, took a boy,
Jotindra, in adoption, and the suit was by him for half
a share in the estate. If his adoption could relate back
to the date of death of Sibnath, which was on 28th May,
1861,
Jotindra would
be entitled to share the inheritance equally 'with Nilkomul. That was the argument
put forward in support of his claim. (Vide page 139).
In negativing
this
.contention,
Sir
Barnes
Peacock
observed:-
"According to the law as laid down 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."
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
cases which the Privy Council had in mind was Kally
Prosonno Chose v. Gocool Chunder Mitter( 1 ), which was
relied on in the High Court. Vide Nilkomul Lahuri v.
Jotendro Mohan Lahuri( 2 ). There, it was held that an
adopted son could not claim the estate of· his adoptive
father's paternal uncle, which had devolved by inheritance
pnor to his
adoption.
In 1888
Golapchandra
Sarkar Sastri observed in his Tagore Law Lectures on
the Law of Adoption :
"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 relation, succession to which opened before . his adoption."
(Vide pages 413 and 414). The law was thus well
settled that when succession
to the properties of a
person other than an adoptive father
was involved,
the principle applicable was
not the rule of relatipn
back but the rule that . inheritance once vested could
no\ he divested .
. ,Before examining· the decision in Ana11t ·Bhikappa
Patil (Minqr) v. Shankfu Ramchandra Patil( ),. it . is
(1) I. L R. 2 Cal. 295, .
(3) 70 I.A. 232.
1
(2) J.L.R. 7 Cal. 178.
'
s
'
.
'
1954
SlwinivGS
Krishnar1111>
Kango
v.
Nart;Yan D"lfi
Kang• and Othm.
V enkatarnma
A»m].
1954
, Shrinivas
Krishnarao
Kango
v.
Narayan Devji
!fang() and Others.
Venkatarama
A)!:l'ar].
18
SW?REME ~OURT rui:P,Q~'.l!S
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
basis
,0£ 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 thakur. , . The last incumbent,. Kaliansiqg, .died ·issueless in October,
1903, leaving him surviving his- widow,
Bai Devla:
On.