N.J. Wadia, J.
1. This appeal arises out of a suit filed by the respondent to obtain a half share in the suit property together with mesne profits from 1916. His case was that the property originally belonged to one Rudragauda and his cousin Channappagauda. The genealogy of the family is given in the judgment of the trial Court. Rudragauda's great-grandfather was also called Rudragauda. He had two sons, Dodviranagauda and Sannaviranagauda. Dodviranagauda had a son, Sivanagauda, whose son was Rudragauda the adoptive father of the plaintiff. The original ancestor had a son Sannaviranagauda whose son was Channappagauda. Rudragauda, the plaintiff's adoptive father, had two sons, Dodviranagauda and Sannaviranagauda. The younger son Sannaviranagauda went in adoption to Channappagauda, the representative of the other branch, in the year 1897. He was defendant No. 1 in the suit and us the present appellant. The elder son Dodviranagauda died some time in July, 1916.
2. The plaintiffs adoptive father, Rudragauda, was murdered in the year 1909. Four persons were put up for trial for his murder, one of them being his elder son Dodviranagauda, who was tried along with two others for abetment of the murder which was said to have been committed by the fourth accused in that case. Dodviranagauda was found guilty by the Sessions Judge of Dharwar of conspiracy to murder his father Rudragauda and was convicted under Section 115 of the Indian Penal Code, and sentenced to rigorous imprisonment for seven years, in April, 1910. He served out his sentence and was released from jail in 1916. Soon after his release, he executed a gift-deed, on July 22, 1916, of his entire half share in the family property in favour of his natural brother Sannaviranagauda, the present defendant.
3. The plaintiff's case as stated in the plaint was an alternative one. He alleged that Rudragauda and his uncle Channappagauda had been divided, but that after Rudragauda's murder in 1909, and after Dodviranagauda had been sentenced, defendant No. 1 began to manage Rudragauda's property and mixed it up with his own properties with a view to defraud the plaintiff, and fraudulently got his own name entered in the Record of Rights. In paragraph 8 of his plaint, however, he said that he accepted the contention of defendant No. 1 that Rudragauda and Channappagauda had lived and died as members of a joint family and contended that as Dodviranagauda had lost all his rights in the ancestral property because he had got his father murdered and had become civilly dead, he had no power to make a gift of his share to Sannaviranagauda, and the plaintiff, who had been validly adopted by Rudragauda's widow Ningavva, on August 21, 1916, was entitled, as the adopted son, either to Rudragauda's separated share, or, if the defendant's contention that the family was joint was accepted, he was entitled to a half share of the entire family property on partition.
4. Defendant No. 1, Sannaviranagauda, disputed the plaintiff's adoption. He also contended that he himself had been adopted by Channappagauda in the year 1897, that neither he nor Channappagauda had ever been divided from Rudragauda, and that the family continued joint. He denied that Dodviranagauda had got his father murdered, and alleged that owing to pressure Dodviranagauda had given a confession in which he admitted the crime, and on the strength of that confession he was convicted, but that it was stated in the judgment that the charge of murder had not been proved. He contended that Dodviranagauda's rights in the family property had not become extinguished by his conviction, that Dodviranagauda, in consideration of what defendant No. 1 had done for him had conveyed his entire share to defendant No. 1 by the deed of gift of July 22, 1916, that though the deed was worded as a gift-deed it was really a deed of renunciation of his share in favour of defendant No. 1, that since that date the defendant had become owner of the property, and that even if the plaintiff's adoption was proved, he could get no rights in the property according to law. He further contended that mesne profits could not be claimed and the amount claimed was excessive. There were five other defendants in the suit who were alienees of the property. Defendants Nos. 3 and 6 claimed to have been alienees of three of the properties in suit from the plaintiff's father Rudragauda. The other defendants were alienees from defendant No. 1. None of them has been made a party to this appeal.
5. The learned trial Judge held, accepting the defendant's contention and the plaintiff's admission, that the branches of Rudragauda and Channappagauda were joint. He also held that the plaintiff's adoption had been proved and was valid, even though made by a widow in a joint family, according to the decision of the Privy Council in the case of Bhimabai v. Gurunathgouda Khandappagouda (1932) L.R. 60 IndAp 25 : S.C. 35 Bom. L.R. 200 : I.L.R. 57 Bom. 157. He further held that Dodviranagauda had brought about the murder of his father and had therefore lost his rights in the joint family property according to the ruling of the Privy Council in the case of Kenchava v. Girimallappa I.L.R. (1924) 48 Bom. 569 : 26 Bom. L.R. 779 : L.R. 51 IndAp 368, that he could not therefore convey any rights to the defendant by the gift-deed of July 22, 1916, and that the plaintiff was entitled by reason of his adoption to claim a half share in the joint family property. He held that the alienations made to defendants Nos. 2 to 6 were not binding upon the plaintiff as they had not been proved to have been made for legal necessity. He therefore made a decree in favour of the plaintiff for possession and mesne profits. He provided in the decree that in making the actual partition, as far as possible, the lands alienated to defendants Nos. 2 to 6 should be allotted to the share of defendant No. 1. He directed an enquiry with regard to past mesne profits from 1918 to the date of the suit, holding that although this was a partition suit and ordinarily mesne profits would not be awarded, in this case the plaintiff must be held to have been kept out of participation in the joint family property at least from 1918, when he filed a suit for partition through his guardian, and defendant No. 1 denied his adoption and his right to claim partition.
6. Defendant No. 1 has appealed against this decree. His principal contention is that Dodviranagauda had not been guilty of the murder of his father, that the judgment of the Sessions Judge in the case against Dodviranagauda does not justify the inference which the learned trial Judge has drawn that the murder of Rudragauda was committed in consequence of the conspiracy of which Dodviranagauda was found guilty, that therefore Dodviranagauda had not lost his share in the family property, and that by reason of the gift-deed or the deed of renunciation executed by him in favour of defendant No. 1 that property became the separate property of defendant No. 1 in which the plaintiff could not claim a share. It was also contended in the course of the arguments that by reason of the deed of renunciation there was a separation in interest between Dodviranagauda and defendant No. 1 and that the plaintiff could not therefore claim any share in the joint family property in the hands of defendant No. 1.
7. The learned Subordinate Judge has decided the case in favour of the plaintiff solely on the ground that Dodviranagauda had brought about the murder of his father and had therefore lost his right to share in the family property and had become civilly dead, and that he could not therefore validly transfer his share to defendant No. 1. He did not consider the question whether even if Dodviranagauda had not incurred any disqualification by reason of his conviction of the offence of conspiracy to murder his father, the plaintiff would still be entitled to a share in the property on the ground that the share which Dodviranagauda renounced in favour of defendant No. 1 continued to remain joint family property in the hands of defendant No. 1, and the plaintiff having been validly adopted into that family was entitled to claim a half share in it by partition.
8. I propose to deal first with the grounds on which the learned Judge has based his decision. Dodviranagauda was put up for trial along with three other persons for the murder of his father Rudragauda. The judgment in the case has been put in (exhibit 76) and both parties stated in the trial Court that they relied on that judgment alone for the decision of the question, whether Dodviranagauda had brought about the murder of his father and had incurred a disqualification. No other evidence was led on the point. The judgment says that the fourth accused in that case, Dodbasappa, was charged with the actual murder of Rudragauda, and that accused No. 1, Dodviranagauda, and two other persons, accused Nos. 2 and 3 were charged with having abetted the murder. Accused Nos. 1, 2 and 3 made confessions which they afterwards retracted. The learned Sessions Judge accepted the confession of accused No. 1 against him and held him guilty of the offence disclosed in that confession. But he held that the confessions of accused No. 1 and of the other accused were worthless as evidence against accused No. 4, the person actually charged with the murder, and holding that there was no sufficient evidence against him, he acquitted accused No. 4. He found that Rudragauda had been murdered by some person or persons unknown. As a result of this finding he also came to the conclusion that the murder had not been proved to have been committed in pursuance of the conspiracy, and it was on this account that he convicted accused No. 1 under Section 115 of the Indian Penal Code, that is, for abetment of an offence punishable with death or transportation for life if the offence is not committed in consequence of the abetment. The learned Subordinate Judge took the view that in spite of the express statement of the Sessions Judge that he was not prepared to hold that the murder had been brought home to any of the accused, or had been proved to have been committed in pursuance of the conspiracy, it was open to him to consider from the succession of events and the probabilities of the case based upon the findings of the Sessions Court, whether Dodviranagauda was responsible for that murder; and holding that Rudragauda had been murdered shortly after the conspiracy entered into by Dodvirangauda and others for murdering him, and that there was no allegation that any other person had abetted the murder, or had any motive for committing it, he held that it followed that Dodviranagauda had committed the murder by conspiring with accused Nos. 2 and 3 and had brought about the murder with the aid of some persons undetected. Although a judgment in a previous case not inter partes may be admissible under the provisions of Sections 13 and 43 of the Indian Evidence Act, as establishing a particular transaction, that is, the decision arrived at, the reasons upon which the judgment was founded are no part of the transaction and cannot be considered, nor can any finding of fact there come to, other than the transaction itself, be relevant evidence vide Gobinda Narayan Singh v. Sham Lal Singh : (1931)33BOMLR885 . In the present case, therefore, all that the judgment can be taken as proving is that Dodviranagauda was found guilty of having conspired to kill his father and that the murder of Rudragauda, had not been committed in pursuance of the conspiracy. I am unable to agree with the grounds on which the learned trial Judge, in spite of the Sessions Judge's finding, comes to the conclusion that on the evidence referred to in the Sessions Judge's judgment it was possible to infer, and in fact the only possible inference was, that Dodviranagauda had brought about the murder of Rudragauda. The view taken by the learned Judge is, in my opinion, wrong, and it cannot be held that Dodviranagauda had been proved to have brought about the murder of his father.
9. It was contended by the learned advocate for the respondent that even if it is held that Dodviranagauda's responsibility for the actual murder of Rudragauda has not been proved, the mere fact that he had been guilty of having conspired to murder him, even though the murder may not have been committed in pursuance of that conspiracy, would be sufficient to disqualify him from inheriting the property of his father or from taking a share in the joint family property on partition. In support of his view that Dodviranagauda has lost his rights because of his connection with the murder of Rudragauda the learned Judge has relied on the decision of the Privy Council in Kenchava v. Girimallappa. In that case the next reversioner to the estate of an intestate was convicted of the murder of the intestate's mother upon whose death the reversionary interest was expectant, and it was held by their Lordships of the Privy Council that even if Hindu Law did not disqualify the murderer from succeeding to the estate, he was so disqualified upon the principles of justice, equity and good conscience. In that case, however, the person who was held to have been disqualified had been convicted of the actual murder of the person who stood between him and the estate. No case has been cited to us in which it has been held that a mere conspiracy to murder is sufficient to disqualify the person so conspiring from succeeding to the inheritance, even though no murder may have been actually committed as a result of the conspiracy, or though, the murder actually committed may not have been connected with the conspiracy at all. The principle upon which the decision in Kenchava v. Girimallappa seems to have been based is that a man should not be allowed to take advantage of his own wrong, and it cannot be said that where the conspiracy has not resulted in the murder at all, or where the murder has taken place but not as a result of the conspiracy, the person conspiring has derived any benefit from the wrong which he committed by entering into the conspiracy. It was argued by Mr. Thakor for the respondent that even if it is held that on the principle laid down in Kenchava v. Girimallappa and similar cases, Dodviranagauda's act in conspiring to murder his father could not be considered sufficient to justify the Court in holding that he was disqualified from inheriting, such a disqualification could be based on the principles of Hindu Law, and he has referred us to a text of Narada (quoted in Mr. Gharpure's 'Collections of Hindu Law Texts' No. 2, Yajnavalkya, Verse 140) that 'An enemy to his father, an outcast, an impotent person, and one who is a sinner in art inferior degree, take no shares in the inheritance even though they may be aurasa sons'. It is true that in Kenchava's case their Lordships of the Privy Council, before whom it was contended that the Hindu Law made no provision disqualifying a murderer from succeeding to the estate of his victim, said that they did not take this view, and that there was much to be said for the argument of the Subordinate Judge in that case that the principles of jurisprudence which can be traced in Hindu law, would warrant an inference that according to that law a man cannot take advantage of his own wrong, and that if that case had come under consideration by the Hindu sages they would have determined it against the murderer : but they thought it unnecessary so to decide, and based their conclusion not upon the principles of Hindu Law, but upon the principles of equity, justice and good conscience. The text from Hindu Law relied on by the learned advocate for the respondent is so general as not to be capable of application in its entirety under present conditions, and no case has been cited before us in which it has been so applied. Kenchava's case was one of actual murder committed by the person who was held to have incurred the disqualification, and speaking for myself, I am not prepared to extend the principle laid down in that case to cases in which the person, whom it is sought to disqualify is not actually proved to have been guilty either of the murder or of the abetment of it. I am unable therefore to accept the finding of the learned Judge that Dodviranagauda had brought about the murder of his father and had therefore incurred disqualification and lost his right to take a share in the inheritance. In my opinion, however, in spite of the view which I take that Dodviranagauda has not been proved to have brought about the murder of his father, the plaintiff is nevertheless entitled to succeed.
10. As I have already stated, it was the defendant's own case that Rudragauda and his uncle Channappagauda were members of a joint family and that Dodviranagauda died in union with Channappagauda's adopted son, defendant No. 1. The plaintiff accepted this position, and the learned Judge has found that Dodviranagauda and defendant No. 1 were members of a joint family at the time of Dodviranagauda's death in July, 1916. Neither the factum nor the validity of the plaintiff's adoption is now challenged before us in the appeal. A feeble attempt was made to show that the deed of adoption executed by Ningavva in favour of the plaintiff made no reference to the plaintiff having been adopted to her deceased husband Rudragauda, and stated that Ningavva herself had taken the plaintiff in adoption with a view to continue her line and in order that she should attain salvation both in this world and the next. An adoption deed, however, is not necessary to prove an adoption. It may be satisfactorily proved by oral evidence. In this case the plaintiff had examined two witnesses who deposed to his adoption, and as the learned Judge has pointed out, these witnesses were not cross-examined with regard to the factum of the adoption. The adoption, therefore, must be held to have been satisfactorily proved, and in view of the decisions of the Privy Council in Bhimabai's case and other cases there can now be no question with regard to the validity of the adoption. The plaintiff must therefore be held to have been validly adopted into the joint family-of which defendant No. 1 was a coparcener.
11. An attempt was made to show that the coparcenery had come to an end on the death of Dodviranagauda because on his death defendant No. 1 was the last surviving member of the coparcenery. This contention is clearly unsustainable. The coparcenery cannot be said to be extinct till the death of the last surviving coparcener. In the recent full bench decision of this Court in Balu Sakharam v. Lahoa (1936) 39 Bom L.R. 382 : [1937] Bom. 508. it was held that where a coparcenery exists at the date of the adoption, the adopted son becomes a member of the coparcenery, and takes his share in the joint property accordingly, and that where the adoption takes place after the termination of the coparcenery by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a pre-deceased coparcener has not the effect of reviving the coparcenery, and does not divest the property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her. It is clear that so long as there is a single coparcener left, the coparcenery cannot be considered to be extinct. The coparcenery in this case was therefore in existence at the date of the plaintiff's adoption in August, 1916, and the plaintiff having been validly adopted would be entitled to a share in the joint family property.
12. It was contended on behalf of the appellant, however, that by reason of the deed of gift or renunciation executed by Dodviranagauda there was a separation in interest between Dodviranagauda and defendant No. 1, and that the plaintiff could therefore have no claim to the share which Dodviranagauda renounced in favour of defendant No. 1, since according to the contention that share became the separate property of Dodviranagauda and was gifted by him to defendant No. 1; nor could he claim any share in the property originally held by defendant No. 1 since that became defendant No. l's separate property.
13. Mayne in his Commentary on Hindu Law (9th edn., p. 502) in dealing with the right of a coparcener to make a gift of his share says:
The Bombay High Court, however, while favouring the rights of a purchaser for value, show no indulgence to a volunteer; they hold that an undivided coparcener cannot make a gift of his share, or dispose of it by will. In both points they agree with the High Court of Madras, no doubt on the ground that in the case of a gift there is no equity upon which a decree for partition would depend. The High Court, however, put their decision upon the simple ground that they were not disposed to carry the assignability of the share of a coparcener in undivided family property any farther than they felt compelled to do by the precedents referred to, and by the traditions of the Supreme Court and Sudder Adawlut in the Bombay Presidency. No decision has as yet been given by the Privy Council as to the validity of a gift of his share by a coparcener, though the leaning of their Lordships' minds seems rather to be against it.
In Kalu v. Barsu I.L.R. (1894) 19 Bom. 803 it was held by this Court that 'According to Hindu Law, under ordinary circumstances a gift by a coparcener of his undivided share irt immovable property is invalid.' The same view was taken by the Allahabad High Court in Chandar Kishore v. Dampat Kishore I.L.R. (1894) All. 369. It was held in that case that-
It is settled law so far as these Provinces are concerned, that in cases governed by the Mitakshara Law, one sharer has no authority without the consent of his co-sharers to dispose of his undivided share, except for the benefit of the joint family. No exception has been made in this rule as far as we are aware in favour of persons who transfer their undivided shares to one of the members of the coparcenary body without the consent of the rest. If the alienation be regarded as a surrender of the interest of the person making the alienation, it is a surrender to the whole of the coparcenary body and cannot enure to the peculiar benefit of one of them.
Gour in his 'Hindu Code,' 3rd edn., says that a coparcener cannot surrender his right to any one or more of his coparceners as distinct from the whole coparcenery. The gift or renunciation by Dodviranagauda in favour of defendant No. 1 could, therefore, at the most, be treated as a renunciation by Dodviranagauda of his share in the coparcenery in favour of the rest of the coparcenery represented in this case by defendant No. 1, but it cannot be regarded as changing the nature of the property so gifted or renounced in favour of defendant No. 1 and converting it into separate property. There is nothing in the evidence to support the contention of the appellant that the deed of renunciation by Dodviranagauda contained an implicit intention to separate. So far as the document itself is concerned it bears ample and unmistakable evidence that Dodviranagauda regarded himself as joint with defendant No. 1 and intended that the property gifted by him to defendant No. 1 should continue to be joint family property. At five different places in the gift-deed he refers to the fact that the family was joint. At one place he says : 'both your adoptive father (Channappagauda) and my father, i.e., your genitive father Rudragauda died in union. Even myself and yourself have both been staying joint', Later on he says : 'Even now too, you and I are living in union'. Again in a later paragraph he says : 'In our family properties described below, myself and yourself have each a half share and they are joint'. After giving the reasons for the gift he says : 'I am fully confident that hereafter, you alone would look after me affectionately till I survive; you alone would be the direct heir to all the properties mentioned below that are joint between yourself and myself.' Finally, after referring to the properties gifted he says : 'The said properties are at present in your possession as being joint and the said possession has been confirmed by (virtue of this) gift deed.' The sentence last quoted seems to leave no room whatever for doubt that the property was joint between Dodviranagauda and defendant No. 1 at the date of the partition and was intended by Dodviranagauda to remain joint. The fact that in the deed of gift Dodviranagauda provided that as defendant No. 1 was to become the owner of all the property of their family, he should maintain Dodviranagauda's step-mother Ningavva in a proper manner till her death, and provide for the marriage of Ningavva's daughter Gangavva, shows again that the parties intended that the coparcenery was to continue and that defendant No. 1 was to be responsible as a member of the coparcenery for the maintenance of Rudragauda's widow and the marriage of her daughter. There is therefore nothing in the deed which can give any support to the suggestion that the parties intended to separate.
14. It may be mentioned here that in the written statement which was put in by defendant No. 1 in an earlier suit, No. 458 of 1919, filed on behalf of the present plaintiff for partition, the defendant nowhere alleged that there had been a partition or separation in interest between him and Dodviranagauda. It was argued however that even though the deed of gift itself might not contain any reference to a separation in interest, such a separation must be inferred from the very fact of renunciation by Dodviranagauda of his share in favour of defendant No. 1. In support of this contention reliance was placed on the decision in Peddayya v. Ramalingam I.L.R. (1888) Mad. 406. That was a case of a joint Hindu family consisting of four brothers-A, B, C and D-of whom A and B obtained their shares by a partition suit. In the plaint they stated that they relinquished their shares of the moveable property in favour of C. In a suit by C against D to recover his share C claimed three-fourths of the moveable property. D contended that the release by A and B in favour of C could not, according to Hindu law, add to the share of C as a coparcener. It was held by the High Court that C was entitled to the share claimed. The case however is clearly distinguishable on the facts, since there was undoubtedly a separation in interest between the two relinquishing members of the coparcenery, A and B. The very fact that they had filed a suit for partition was a clear indication that there was a separation in interest between them and the other coparceners, and on those facts the Court was justified in holding as it did, that their act could be regarded as a severance of their interest coupled with a direction to make over their shares to the respondent when he should separate. Mr. Coyajee for the appellant relied on the following remarks made in the judgment (p. 407):
According to the Smritis, ...the renunciation operates as alienation of one coparcener's interest in favour of the others. If he can alienate in favour of the other coparceners as a body, there is no reason why he should not do so in favour of one of them, who alone may need such help.
15. These remarks however must be taken in conjunction with the facts of that particular case; and from the observations which follow the passage relied on by Mr. Coyajee, it is clear that the conclusion of the Court was based on the fact that there had been a clear declaration of an intention to separate, and it was on this account that they regarded the act of relinquishing as a severance of the interests of the relinquishing coparceners coupled with a direction to make over their shares to the respondent when he should separate. There is nothing in the case which can support the appellant's contention.
16. A reference was also made to a decision of the Privy Council in Rai Bishen Chand v. Mussumat Asmaida Koer I.L.R. (1888) Mad. 406. In my opinion, the facts of that case again are clearly distinguishable from the facts of the present case. In that case a Hindu governed by the Mitakshara Law executed a deed of gift of his ancestral immoveable estate (the family being joint) in favour of the children of U, his only son, who consented thereto, the deed being followed by mutation of names in favour of the only one of such children then born, under the guardianship of his mother. Both the grandfather and the grandchild died. In a suit by a judgment-creditor of U against the mother and heiress of the donee to avoid the gift deed and to make the land comprised therein available to answer U's debts, it was held that the deed having been made on good consideration and in good faith was valid, whether or not U's creditors were unpaid. In that case the High Court had taken the view that the transaction might in some sense be considered as a partition, Udey Narain, the son, being regarded as having received the value of his share, and as having been in effect bought out of the ancestral property. Their Lordships of the Privy Council thought that the transaction could not strictly be regarded as a partition, since, according to the Mitakshara, there can be no partition directly between grandfather and grandson while the father is alive. They regarded it as a family arrangement, partaking so far of the nature of a partition that Udey Narain, the son, received a portion and was thenceforth totally excluded, and quoad ultra Mata Dyal (his father) surrendered his interest to his grandson, who on a complete partition among the whole family would be entitled to one-fourth. The transaction in that case was, therefore, one in which both the grandfather and the son renounced their interest in the joint family property in favour of the grandson or grandsons, the grandfather by the deed of gift and the son by the consent which he gave to that deed. There is nothing in that case which would support the contention of the appellant that because of the gift or renunciation the nature of the property gifted to the grandson was changed and it ceased to be coparcenery property. The effect of a renunciation of his share of the coparcenery property by one coparcener was considered by the Privy Council in Alluri Venkatapathi Raju v. Dantuluri Venkatanarasimba Raju . It was held in that case that-
Although it is a settled rule that when the members of a Hindu family hold the family estate in defined shares they cannot be held to be joint in estate, no definement of shares need take place when a separating member does not receive any share in the estate but renounces his interest in the estate. His renunciation merely extinguishes his interest in the estate, but does not affect the status of the remaining members quo-ad the family property, and they continue coparceners as before. The only effect of renunciation is to reduce the number of persons to whom shares would be allotted if and when a division of the estate takes place.
There is, therefore, in the case before us, no express or implied intention to separate evidenced by the deed of gift, itself; nor is there any authority for the contention urged on behalf of the appellant that such an intention must be inferred from the very fact of renunciation. The only effect of Dodviranagouda's renunciation in favour of defendant No. 1 was that he went out of the coparcenery and his interest in it was extinguished ; but the property remained coparcenery property and defendant No. 1 remained a member of the coparcenery. There was therefore a coparcenery in existence at the time when the plaintiff was adopted in August, 1916, and the whole property of the family, both that which Dodviranagauda had renounced and that which defendant No. 1 had held before the deed of renunciation, continued to be coparcenery property. The plaintiff is therefore clearly entitled to a half share in that property. The decree made by the trial Judge in favour of the plaintiff as regards a half share in the property must therefore be confirmed.
17. It was contended that the order made with regard to mesne profits is erroneous and that mesne profits could not be claimed in a partition suit. It is true that ordinarily mesne profits cannot be awarded in a partition suit, but they can be awarded where it is shown that the plaintiff has been kept out of enjoyment of the coparcenery property, and it was admitted in this case by defendant No. 1 that the plaintiff never lived with him and that he did not admit the plaintiff's adoption. The plaintiff was therefore entitled to recover mesne profits from the year 1918 as ordered by the trial Court. The defendant has stated, and the statement has not been challenged in the cross-examination, that the plaintiff's adoptive mother Ningavva lived with the defendant and was maintained by him and that the marriage of Ningavva's daughter was performed by him. If the plaintiff had pressed the suit for partition which he brought in 1919 and had obtained a decree, the burden of maintaining Ningavva and of getting her daughter married would have been on him. Since this burden was discharged by defendant No. 1 it is only fair that he should be allowed to deduct from the mesne profits which will be found to be payable by him the amounts which may be proved to have been expended by him for the maintenance of Ningavva and the marriage of her daughter. He should be given credit for these amounts when calculating the mesne profits to be awarded to the plaintiff.
18. It was finally contended that the learned Judge was wrong in directing that in making the partition the properties alienated to defendants Nos. 2 to 6 should be allotted to the share of defendant No. 1. According to the allegations made by defendants Nos. 3 and 6 the three properties alienated to them, survey Nos. 452/2, 453 and 448, were alienated not by defendant No. 1 but by the plaintiff's adoptive father Rudragauda. There was therefore no reason why these properties should all be allotted to the share of defendant No. 1. The learned Judge states in his judgment that all the alienations are subsequent to the date of the plaintiff's adoption. That finding appears to be wrong, but since the alienees, defendants Nos. 2 to 6 have not been made parties to this appeal and any alteration in the order made might affect defendants Nos. 3 and 6 prejudicially, we see no reason for interfering with the order made by the learned Judge.
19. The appeal fails and is dismissed with costs. The decree of the trial Court will be amended by adding a direction that in calculating the mesne profits defendant No. 1 should be given credit for any amounts proved to have been spent by him in maintaining Ningavva and in performing the marriage of her daughter. The rest of the decree is confirmed.
Norman, J.
20. One probable result of the Privy Council decision in Bhimabai's case will be an increase in the practice of adoption among widows of coparceners. As the present case deals with the rights of sons so adopted and our decision may be of some importance, I wish to express my own view on that point very briefly.
21. It is obvious that if one coparcener can transfer his interest to another to the prejudice of a son subsequently adopted, the privilege secured to widows by the Privy Council decision referred to may be seriously affected. Two arguments were particularly pressed by Mr. Coyajee. The first is that the deed of gift operated as a severance of interest and the property so transferred was not a divided share. On that point I have nothing to add to the remarks of my learned brother.
22. The second argument is that a coparcener can make a gift of his undivided share with the consent of other coparceners, that Sannaviranagauda was the only other coparcener, and that by accepting the gift he showed his consent. I do not however find any binding authority in favour of the first part of this argument. Juttedromohun Tagore v. Ganendromohun Tagore : Ganendromohtm Tagore v. Juttendromohum Tagore (1872) L.R.IndAp 47. expressly laid down the law for Bengal only. Rai Bishen Chand v. Mussumat Asmaida Koer (1883) L.R. 11 IndAp 164 has been fully dealt with by my learned brother. That was not a case of simple gift but a case of family arrangement analogous to partition. In Chandar Kishore v. Dampat Kishore (1894) I.L.R. 16 All. 369 it was held that a coparcener could not make a gift of his share to another coparcener without the consent of the remaining coparceners, but the opposite proposition, viz., that he can make a gift without their consent was neither relevant nor affirmed. In Kalu v. Barsu I.L.R. (1894) 19 Bom. 803 it was held that a gift by a coparcener of an undivided share was not valid. I must concede however that in that case there was no question of consent as there was a minor coparcener who had not consented.
23. Further, if Mr. Coyajee is right and an undivided share can be transferred with the consent of the other coparceners, the rule must be founded on the doctrine of estoppel. But this doctrine cannot be applied to persons who become members of the coparcenery after the date of gift except on the theory of representation. And this theory I am not willing to apply when the sole representative of the coparcenery is the beneficiary under the gift himself. The matter can also be looked at in another way. The validity of a gift as against a coparcener coming in afterwards can only be supported on the assumption that the donor's share ceases by reason of the gift to be coparcenary property and becomes self-acquired property in the hands of the donee. But I do not think that coparcenery property can thus change its character except on partition, and if it can so change its character and if it was intended that the defendant should take the sole title to the property gifted to the exclusion of any subsequently adopted coparcener, then I think such an intention ought to have been clearly expressed in the instrument of gift. There is however nothing in the instrument of gift to suggest such an intention and it is extremely improbable that Dodviranagauda, when he made it, ever contemplated an addition to the coparcenery by adoption. In fact as the law in Bombay was then understood such an addition would have been impossible except with the defendant's consent. The gift therefore must be regarded as made to defendant in his capacity of a sole surviving coparcener, a presumption which is borne out by the references to their jointness in the deed of gift itself. It follows from this that Dodvirangauda's share in the hands of the defendant is still coparcenery property and that any person subsequently becoming a coparcener is entitled to his share thereof on partition.
24. On all other points I have nothing to add to the remarks of my learned brother with whose order I concur.