Whether an Adoption after the Death of Collateral entitles, the Adopted son to come in as heir of the Collateral

In Anant v. Shankar, AIR 1943 PC 196, the facts would be clear from the genealogy given below:

Kesav died unmarried in 1917. He had inherited prior to his death, certain property from his paternal uncle Narayan who died in 1908. This property was watan lands from which by custom female heirs were excluded. On Kesav’s death in 1917 this property devolved upon his heir who was collateral by name Shankar. Kesav’s mother adopted Anant in 1930.

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Anant brought the suit claiming that by virtue of his adoption he could divest the estate vested in Shankar. By the fiction of posthumous sonship he could claim to be in existence even in 1905 when Bhikappa (husband of Gangabai) died. So he was notionally in existence in 1917 when Kesav died. As brother of Kesav he was a nearer heir to Kesav than the distant collateral Shankar.

It was held by the Privy Council that Anant was entitled to divest Shankar not only of the joint family property which Kesav got from Bhikappa but also from the property which Kesav had obtained by inheritance from Narayan, divided brother of Bhikappa; both of which properties had devolved by heirship upon Shankar.

So far as the property of Bhikappa, the adoptive father, is concerned, decision of the Privy Council is perfectly justified. The doctrine of relation back is designed to maintain the continuity of the line. For this purpose the father’s property must be in his line and come to the son adopted by the widow. A collateral, however, is one “descended from the same stock but not in the same line”. So there is no need to extend the doctrine of relation back to collateral succession.

This was pointed out by Venkatarama Ayyar, J, Srinivas v. Narayan, AIR 1954 SC 379, where on this point Anant v. Shankar, AIR 1943 PC 196, was overruled by the Supreme Court.

In the case before the Supreme Court, the genealogy is as under:

In 1903 Devji inherited certain property of a collateral relation by name Swamirao. On Devji’s death this property devolved upon his sons D1, D2, and D3. Although Srinivas was adopted only in 1944 he claims that in 1903 he should be deemed to be a preferential heir to the property of Swamirao. The claims of both Devji and Srinivas to heirship to Swamirao are founded upon their relationship to the common ancestor X.

Srinivas is an agnate of 3rd degree while Devji is an agnate of 4th degree (counting X as one degree) from X. So Srinivas would be nearer. Had he been adopted before 1903 he would undoubtedly have succeeded to Swamirao’s property. Can he by virtue of adoption in 1944 claim to divest D1, D2, and D3 or even Devji? If Anant v. Shankar, AIR 1943 PC 196, is sound law, he would be able to do so.

But the Supreme Court overruled that case and held that the doctrine of relation back should not be extended to property inherited from collaterals. The rule to be applied here is that inheritance can never be in abeyance and that once it has devolved upon a particular person it cannot be divested by the subsequent emergence of nearer heirs.

This is the normal principle and this should be applied when the adopted son claims property inherited by others from collaterals and not from his own adoptive father. The credit for limiting this doctrine and saving parties from ruinous litigation and uncertainty of legal title goes to the Supreme Court and that learned Judge, Venkatarama Ayyar, J, who delivered the judgment of the Supreme Court in Srinivas v. Narayan, AIR 1954 SC 379.


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