IN-Abs/train-data/summary/3047.txt

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 existing 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 his adoption related back to the date of death of his adoptive father; by a fiction of law, he must be deemed to have been in existence when K and L divided the properties between them; the partition, having been effected without his joinder, the same had to be ignored; and, therefore, he was entitled to a half share in the properties.
Alternatively, it was urged that the appellant was entitled to get by succession, half share of the properties that fell to the share of K. Dismissing the appeal, HELD.
(i) The appellant must be deemed to have been adopted in 1912 when R died.
Therefore, he must be deemed to have been a coparcener in his adoptive father 's family when K and L partitioned the properties in 1933.
The partition having been effected without his consent, it 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 be determined after taking into consideration the fact that K & L separated from the family in 1933.
The appellant can ignore the actual partition,by meters and bounds effected by K and L and ask for a repartition of the properties but his adoption by itself cannot reunite the divided family.
The rights of an adopted son cannot be more than that of his adoptive father.
The fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adopted son relates to the estate of the adoptive father.
If the appellant 's adoptive father was alive in 1933, when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties.
Therefore, the appellant 's claim for a half share in the family properties is unsustainable.
T204 G; 207 B] 201 The alternative 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, the same would have developed on L by succession and the property once vested cannot be divested as in that property the plaintiffs 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 revolution 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.
[2O4G] Shrinivas Krishnarao Kango vs Narayan Devji Kango and ors.
; , ; Anant Bhikappa Patil, Minor vs Shankar Ramchandra Patil, 70 I.A. 232; Bajirao and Ors.
vs Ramkrishna, I.L.R. and K. R. Sankaralingam Pillai and Anr.
vs Veluchami Pillai, Minor, I.L.R. , referred to.
Ramachandra Srinivas vs 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 requiring the second defendant to account in respect of moneys received by him as Karta and as the plaint did not state that there was any cash in the hands of the 2nd defendant, the High Court was justified in reversing the decree of the trial court directing the payment of Rs. 1500 to the appellant.
[203 E]