GOVIND HANUMANTHA RAO DESAI versus NAGAPPA ALIAS NARAHARI LAXMAN RAO DESHPANDE AND & 7 ORS.

Citation: [1972] 3 S.C.R. 200 · Decided: 25-01-1972 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Dismissed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

200 
GOVIND HANUMANTHA RAO DESAI 
v. 
NAGAPPA ALIAS NARAHARI LAXMAN RAO DESHPANDE 
AND & 7 ORS. 
January 25, 1972 
(K. S. HEGDE, P. JAGANMOHAN REDDY AND D. G. PALEKAR, JJ.] 
Hindu Law-Adoption-Theory of relation hack-Adoption by widow 
of deceased coparcener-Before adoption partition of property b:y surviv-
ing coparceners-Share which adoptive son entitled to. 
The appellant was adopted in 1955 by R's widow after R's death in 
1912. In 1933, there was a partition between K (R's father) and his 
third son L, the only two coparceners existink at that time. Thereafter, 
K. bequeathed his properties by will to some of his relations. 
Later, 
there was a further partition between L and his son. 
L died in 1952. 
A suit was filed in 1956 by the-.appellant, claiming half of the family 
properties. The trial court granted the appellant half share in the family 
properties. The High Court reduced the share awarded to the appellant 
from 1/2 to 1/3 of the properties held by it to be partible. The High 
Court also set aside the trial court's decree awarding a sum of Rs. 1500 
to the appellant as his share of the consideration received under a · sale 
deed; 
In appeal to this Court the appellant contended that hl. adoption 
related back to the date of death of his adoptive father; by a fiction of 
law, be must he deemed to have been in existence when K and L divided 
the properties between them; the partition, having been effected without 
bis joinder, the same had to be ignored; and, therefore, he wa• entitled to 
a half share in the properties. Alternatively, it was urged that the appel-
lant was entitled to get by succession, half share of the properties that fell 
to the share elf K. 
Dismissing the appeal, 
HELD . ( i) The appellant must be deemed to have been adopted in 
1912 when R died. Therefore, he must he deemed to have·~ a co.-
parccner in his adoptive father's family when. K and L partitioned the pro-
perties in 1933. The partition having been effected without his consent, 
1t is not binding on him; but 'from this it cannot be said that K and L 
did not separate from the family. So far as the quantum of his share is 
concerned it must he determined after taking into consideration the fact 
that K & L separated from the family in 1933. The appellant can ignQre 
·the actual partition, by meters aild bounds effected by K and L and ask for 
a repartition of the properties but bis adoption by itself cannot reunite 
the divided family. The rights of an adopted son cannot be more than 
that df his adoptive father. 
The fiction that an adoption relates back to 
tho date of the death of the adoptive lathe\'. applies only wheo the claim 
of the adopted son relates to the estate of the adoptive father. 
H the 
appellant's adoptive father was alive in 1933, when the partition took pW:e, 
he could not have obtained anything more than I/3rd share in the family 
properties. Therefore, the ap_pellant's claim for a half share in the family 
properties is unsustainable. l204 O; 2<YT Bl 
A 
B 
c 
D 
E 
r 
G 
lll 
A 
B 
c 
GOVIND v. NAGAPPA (Hegde, J.) 
201 
The ;uternative claim of the appellant is also not tenable because K 
disposed his share by a will and secondly, even if he had not disposed 
of his share, tho. same would have developed on L by succession and the 
property once vested:,cannot be divested as in that property the plaintiff'• 
adoptive father had no right of his own. The doctrine of relation back 
is only a legal fiction. When K. died, plaintiff's adoption father was not 
alive. The devolution of K's property must be held to have taken place 
as soon as K died. The property could not have remained in a suspended 
animation till the appellant was adopted. ~204 G] 
Shrinivas 'Krishnarao Kango v. Narayan Devji Kango and ors., [1955] 
1 S.C.R. 1; Anaizt Bhikappa Patil, Minor v. Shankar Ramchandra Patil, 
70 I.A. 232; Baiirao and Ors. v. Ramkrishna, I.L.R. ~1941] Nag. 707 and 
K. R. Sankarali~am Pillai and Anr. v. Veluchaml Pillai, Minor, I.L.R. 
119431 Mad. 309, referred to, 
Ramachandra Srinivas v. Ramakrishna Krishna Rao, A.I.R. 1952 Bom. 
453, disapproved. 
(ii) Both the courts below found the sale in question valid as the 
same was effected to meet family necessities. 
As the appellant did not 
seek an accounting from the 2nd defendant, and as no case was made out 
for req_uiring the second defendant to account in respect of moneys ro-
D 
ceived by him as Karta and as the plaint did not state that there was any 
cash

Excerpt shown. Read the full judgment & AI analysis in Lexace.