Bench:

• Aiyyar
• T.L Vekatarama

Issue:

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?

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Facts:

This appeal arises out of a suit for partition instituted by the appellant in the court of the Civil Judge Senior Division Bijapur.

In this case a petition was filed by an adopted child for a share in the property of his joint undivided property.

Siddopant and Krishnarao were members of a joint undivided family. Krishnarao died in 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, Lakahmibai, 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 Watan 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 represented by Swamirao, who was entitled for his half share 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 Ukamnal and to a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli.

Plaintiff's Contentions:

Siddopint 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 is 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.

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.

Defendant's Contentions:

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.

Judgement:

It was held by the court that in cases where a child was adopted, the effect of adoption is such that it creates a legal fiction and the child becomes the natural heir. Where an adoption is such that it relates back and makes him eligible for all the rights of a son from the date of death of the Father.

Relevant Paragraph:

It was further held that the effect of adoption is such that the son becomes eligible for the share in the properties of the adoptive father. But where a claim is made for the properties of someone else then the rule of adoption back is not followed. The rule which is followed in such cases is that the property which is one vested in someone cannot be divested.