JUDGMENT : K.R. Mohapatra, J. The unsuccessful plaintiff has filed this appeal assailing the judgment and decree dated 20.12.2011 and 2.01.2012 respectively passed by the learned 2nd Addl. Civil Judge (Senior Division), Cuttack in C.S. No. 46 of 1995 dismissing the suit filed for a preliminary decree for partition and other ancillary relief. 2. The case of the plaintiff, in short, is that one Binj Raj, the common ancestor, died leaving behind two sons, namely, Harmukh Rai and Ramkumar. Harmukh Rai died in the year 1930 leaving behind his widow, Sheo Bai and his son, Liladhar. Liladhar predeceased Sheo Bai in the year 1935 leaving behind his widow, Gomati Bai (defendant no.7). Sheo Bai died in the year, 1955. Likewise, Ramkumar died in the year, 1980 leaving behind his only son, Chhotelal (defendant no.1). During pendency of the suit, Chhotelal died leaving behind Gourisankar and Nandakishore (defendant nos. 2 and 3 respectively). The 3rd son of Chhotelal, namely, Kailash, died in the year, 1990 leaving behind his widow, Uma (defendant no. 4) and his sons, namely, Alok (defendant no. 5) and Aditya (defendant no. 6). It is the case of the plaintiff that Harmukh and Ramkumar were carrying on partnership business in Calcutta and Cuttack. Both of them jointly purchased the suit property ‘Schedule-A’ vide registered sale deed dated 20.9.1910 (Ext. 4) having undivided equal share in the said property. It is further case of plaintiff that after death of Harmukh, his son, namely, Liladhar, inherited ½ share in the suit property and after his death in the year, 1935, his widow, Gomati Bai and his mother Sheo Bai succeeded to the same as his legal heirs. Since Liladhar died issueless, Gomati Bai had adopted one Madanlal in the year, 1940, who died in the year, 1946. Thereafter, Gomati adopted Sheo Prakash (the plaintiff) in the year, 1965. Due to their helpless condition, Sheo Bai and Gomati Bai were depending upon Ram Kumar to look after them and to take care of their share in the suit property. Taking advantage of the illiteracy and innocence of Sheo Bai and Gomati Bai, defendant no. Thereafter, Gomati adopted Sheo Prakash (the plaintiff) in the year, 1965. Due to their helpless condition, Sheo Bai and Gomati Bai were depending upon Ram Kumar to look after them and to take care of their share in the suit property. Taking advantage of the illiteracy and innocence of Sheo Bai and Gomati Bai, defendant no. 1 (Chhotelal) enjoyed the entire suit property for which Gomati Bai had filed a suit in the High Court of Calcutta bearing Suit No. 188 of 1963 praying for a decree for declaration that she was the absolute owner of the undivided ½ share in the suit property and also for partition of the same by metes and bounds allotting ½ share to her along with other ancillary relief. The suit was decreed in favour of Gomati Bai on 17.5.1989 allotting 50% share in her favour. In that suit, the present plaintiff was impleaded as defendant no. 3. It was also held in the said suit that Kailash Prasad Jhunjhunwalla (defendant no. 4), the son of Chhotelal (defendant no. 1) was not the adopted son of said Gomati Bai. The suit property herein was also the subject matter of the said suit before Calcutta High Court. The suit land was a piece of Khasmahal leasehold property at Cuttack, which was leased out in favour of the father of plaintiff, namely, Liladhar and Ramkumar. After death of Liladhar, the name of Gomati Bai (defendant no. 7) was recorded as a lessee vide order dated 3.8.1951 of the Khasmahal Authority. The period of lease expired sometime in December, 1973. Taking advantage of the situation, said Ramkumar without informing either plaintiff or defendant no.7 (Gomati Bai) made an application before the Tahasildar, Sadar, Cuttack for renewal of the lease in his name. However, the prayer for renewal of the lease was not acceded to. But most mischievously, Ramkumar filed C.S. No. 30 of 1981 for partition and permanent injunction to deprive defendant No.7 from enjoying ‘A’ schedule property. An ex parte decree was also obtained by said Ramkumar in the suit. When defendant no. 7 came to know about the same, she filed an application under Order 9 Rule 13 C.P.C. to set aside the said decree. Khasmahal lease being heritable and transferable, plaintiff acquired title in respect of the share of his mother (defendant no. 7) in the suit property. When defendant no. 7 came to know about the same, she filed an application under Order 9 Rule 13 C.P.C. to set aside the said decree. Khasmahal lease being heritable and transferable, plaintiff acquired title in respect of the share of his mother (defendant no. 7) in the suit property. The plaintiff also challenged the legality and propriety of the lease granted in favour of defendant nos. 1 to 3 and late Kailash Prasad Jhunjhunwalla in Khasmahal Lease Case No. 1034 of 1974 on several grounds. Faced with the aforesaid situation and finding that his mother (defendant no. 7) was not in a position to fight out the litigation, plaintiff filed the suit for aforesaid relief to protect his interest in the suit land. 3. Defendant nos. 1 to 6 filed three sets of written statement challenging the maintainability of the suit on different grounds, out of whom defendant no. 6 being minor filed his written statement through GAL. While admitting the joint acquisition of the suit property by late Harmukh and Ramkumar, the defendant nos. 1 to 6 asserted that defendant no. 7 had never adopted the plaintiff. They also denied the adoption of Madanlal by defendant no. 7 in the year, 1940. The suit property was never considered as a separate property of any member of the family as Harmukh and Ramkumar constituted a Hindu joint family. It was the case of defendants that Harmukh and Liladhar having died prior to commencement of Hindu Women Right to Property Act, 1937, the widows, namely, Sheo Bai and Gomati Bai (defendant no. 7) could not have inherited the interest of Harmukh as well as Liladhar, who died in the year, 1930 and 1935 respectively. After the death of interest of Liladhar, his interest in the joint family property reverted back to Ramkumar, who was the sole reversioner at the relevant time. They further contended that Suit No. 188 of 1963 filed before the Calcutta High Court claiming half share in the property, which included the suit property herein, did not answer the issue of right, title and interest of defendant no. 7 in respect of properties situated at Cuttack (the suit property) and left it to be decided in the appropriate Court having jurisdiction over the aforesaid property. In the suit filed before Calcutta High Court, the father of defendant no. 7 in respect of properties situated at Cuttack (the suit property) and left it to be decided in the appropriate Court having jurisdiction over the aforesaid property. In the suit filed before Calcutta High Court, the father of defendant no. 1, namely, Ramkumar, was impleaded as a party and upon his death, the defendant no. 1 was substituted in his place. No other defendant in the present suit was impleaded as party to the said suit at Calcutta except Kailash Prasad Jhunjhunwalla (predecessor of defendant nos. 4 to 6). Though the suit land was a Khasmahal land and the same was leased out by the Tahasildar, Cuttack, the Government of Odisha was not impleaded as a party to the suit. Hence, the suit was bad for non-joinder of necessary party. Since the defendant no. 7 was a pre-Act widow, she had acquired no interest in the suit property after the death of her husband, namely, Liladhar. Thus, there was no necessity on the part of the defendants to intimate her (defendant no. 7) regarding renewal of Khasmahal lease. The plaintiff being not the adopted son of defendant no. 7 was not noticed in the Khasmahal lease proceeding. Kailash Prasad Jhunjhunwalla (predecessor of defendants nos. 4, 5 and 6) was one of the applicants in the said lease proceeding. The petition under Order 9 Rule 13 C.P.C. filed by defendant no. 7 was rejected and the preliminary decree passed in T.S. No. 30 of 1981 was made final. The said decree having not been challenged reached its finality and cannot be reopened in the present suit. Impletion of plaintiff as a party to the suit before the High Court of Calcutta has got no bearing either in T.S. No. 30 of 1981 or in the present suit. The defendants were not precluded from challenging the right of plaintiff to bring the present suit for partition. Even for the sake of argument, if it is assumed that the plaintiff was adopted by defendant No.7, which took place in the year, 1965, he cannot succeed to the interest of Liladhar, the husband of defendant no. 7, who died in the year, 1935 and the plaintiff cannot succeed to the interest of Liladhar during the lifetime of defendant no. 7. After the death of Liladhar in the year, 1935, the defendant no. 7, who died in the year, 1935 and the plaintiff cannot succeed to the interest of Liladhar during the lifetime of defendant no. 7. After the death of Liladhar in the year, 1935, the defendant no. 7 being a pre-Act widow could not have acquired any interest in the suit property. After expiry of the Khasmahal lease in December, 1973, the Khasmahal Authority granted fresh lease exclusively in favour of defendant nos. 1 to 3 and late Kailash Prasad Jhunjhunwalla by dint of separate lease deeds. Since the lease granted by Khasmahal Authority was not challenged in appropriate forum, plaintiff is estopped from changing the same in the suit contending it to be void and non est in the eyes of law. Defendant no. 7 had filed the suit before Calcutta High Court in Suit No. 188 of 1963 and also filed MJC No. 398 of 1985 to set aside the ex parte decree in T.S. No. 30 of 1981 and pursued the proceedings personally. Thus, it cannot be said that she was not capable of managing the affairs of the suit property. Therefore, the defendant nos. 1 to 6 prayed for dismissal of the suit. 4. Taking into consideration the rival pleadings of the parties, learned trial court framed following issues: (1) Whether the suit is maintainable in its present form? (2) Whether the plaintiff has got valid cause of action to bring this suit in this court? (3) Whether the plaintiff is entitled to inherit the suit property as the adopted son of defendant no. 7 (now deceased)? (4) Whether the plaintiff is entitled to get a preliminary decree for partition of the suit property against the defendants? (5) To what other relief the parties are entitled to? 5. In order to substantiate their respective cases, plaintiff examined only himself as P.W. 1 and relied upon Exts. 1 to 30. On the other hand, defendants examined defendant no. 3 only as their witness and relied upon Exts. A to E in support of their case. 6. Considering the materials available on record and the rival pleadings of the parties, learned trial court dismissed the suit for which this appeal has been filed. However, learned Civil Judge, while answering Issue Nos. On the other hand, defendants examined defendant no. 3 only as their witness and relied upon Exts. A to E in support of their case. 6. Considering the materials available on record and the rival pleadings of the parties, learned trial court dismissed the suit for which this appeal has been filed. However, learned Civil Judge, while answering Issue Nos. 3 and 4, recorded certain findings in favour of plaintiff (appellant herein) with regard to the right of Gomati Bai in respect of the share of her husband in the suit property; adoption of plaintiff by Gomati Bai (defendant no. 7); applicability of theory of relation back to the adoption of plaintiff by Gomati Bai and the right of plaintiff to inherit to the property of Liladhar. Assailing the said findings, defendant no. 1-respondent no. 1 filed cross-objection under Order XLI Rule 22 C.P.C. Hence, both appeal and cross-objection are taken up together for adjudication. 7. Before delving into rival contentions raised by the parties, it would be profitable to indicate relevant undisputed factual position for adjudication of the appeal. One Binj Raj, the common ancestor, had two sons, namely, Harmukh Rai and Ramkumar. Harmukh died in the year, 1930 leaving behind his widow, namely, Sheo Bai and one son, Liladhar. Said Liladhar died issueless in the year, 1935 leaving behind his widow, Gomati Bai (defendant no. 7). Defendant no. 7 had adopted one Madanlal in the year, 1940, who died in the year, 1946. After 19 years of first adoption, the defendant no. 7 (Gomati Bai) adopted Sheo Prakash (the plaintiff) in the year, 1965, who is the appellant in this appeal. Likewise, Ramkumar died in the year, 1980 leaving behind his only adopted son, namely, Chhotelal (defendant no. 1). Chhotelal died leaving behind Nandakishore (defendant no.2), Gourishankar (defendant no. 3) and Kailash Prasad respectively. Kailash Prasad died in the year, 1990 leaving behind his widow, Uma (defendant no. 4) and his sons, namely, Alok (defendant no. 5) and Aditya (defendant no. 6). Plaintiff claims his interest in the suit property through Gomati Bai and Liladhar. Admittedly, Hindu Women Right to Property Act, 1937 came into force after Gomati Bai became a widow. Thus, defendant No.7 was a pre-Act widow. 4) and his sons, namely, Alok (defendant no. 5) and Aditya (defendant no. 6). Plaintiff claims his interest in the suit property through Gomati Bai and Liladhar. Admittedly, Hindu Women Right to Property Act, 1937 came into force after Gomati Bai became a widow. Thus, defendant No.7 was a pre-Act widow. There is also no dispute to the fact that the suit property was purchased jointly by Harmukh and Ramkumar, who constituted a Hindu undivided family and the same was being possessed and enjoyed jointly by the members of the joint family. 8. Mr. R.K. Mohanty, learned Senior Advocate appearing for plaintiff-appellant contended that from the pleadings of the parties and respective cases made out, it can be safely said that there was no existence of coparcenary. Thus, the contention of the defendant Nos. 1 to 6 that the suit property was a coparcenary, is not sustainable. He also submitted that the entire case hinges around one issue as to whether the defendant no. 7 (Gomati Bai) would succeed to Liladhar or the suit property would revert back to the reversioner, Ramkumar. 9. On analysis of materials available on record, it is crystal clear that the suit property was being acquired and enjoyed jointly by Harmukh and Ramkumar, who constituted a joint Hindu family. After death of Harmukh, the suit property was also being enjoyed jointly by the family members including the coparceners. There is no material on record to show that Harmukh and Ramkumar had sufficient personal income to acquire the suit property. Plaintiff in his evidence also admitted that he had no knowledge as to whether Harmukh Rai and Ramkumar had sufficient income of their own to purchase the suit property. The partnership business, namely, M/s. Binj Raj Harmukh Rai and Ramkumar, was the source of income of the joint family. Thus, the suit property acquires the character of Hindu joint family property. In the case of Sher Singh and others –v- Gamdoor Singh, reported in AIR 1997 SC 1333 , it has been held that a coparcenary is a creature of law. It cannot be created by the parties. Article 210 of Old Hindu Law (by Mulla) defines ‘Joint Hindu Family’. It broadly speaks that a joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. It cannot be created by the parties. Article 210 of Old Hindu Law (by Mulla) defines ‘Joint Hindu Family’. It broadly speaks that a joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. But, ‘Hindu Coparcenary’ as defined under Article 211 of Old Hindu Law, is a much narrower body than the joint family. It includes only those persons who acquire, by birth, an interest in the joint or coparcenary property. In other words, ‘Coparcener’ is a member of the joint Hindu family, who can claim for partition of the joint family property during lifetime of his father or ancestor, as the case may be. Thus, the contention of Mr. Mohanty has to be tested keeping the aforesaid principles in mind. Law is trite that a person who claims a property being ‘self acquired’ or ‘separate’ has to plead and prove the same. There is neither any evidence nor materials on record to come to a conclusion that the suit property was acquired through the separate income of Harmukh and Ramkumar and not from joint family nucleus. Thus, the suit property was a Hindu Joint Family property. There can be no second opinion on that. 10. Another aspect which is essential for determination is the validity of adoption of Sheo Prakash (the plaintiff) by Gomati Bai (defendant no. 7). Mr. Y. Mohanty, learned Senior Advocate also raised objection to the validity of such adoption in his cross-objection. It is the case of the plaintiff that he was taken in adoption by Gomati Bai in the year, 1961 and a deed acknowledging such adoption was executed and registered on 11.02.1965 (Ext.6). Defendant no. 1 raised objection to such execution on the ground of fraud and fabrication. In his cross-examination, the plaintiff (P.W.1) admitted that neither the executants nor the attesting witnesses had signed on each page of Ext. 6 except the last page. Some portions of Ext. 6 were typed out in a different typewriter (marked Ext.A). The same was not authenticated by the parties to Ext.6. The L.T.I. of Kasturi Bai (the natural mother of plaintiff) was not attested. She was also not present at the Sub-Registrar’s office at the time of registration of Ext.6. Hence, the defendants contended that no reliance can be placed on Ext.6. Ext.6 is a deed of acknowledgement of the adoption. The same was not authenticated by the parties to Ext.6. The L.T.I. of Kasturi Bai (the natural mother of plaintiff) was not attested. She was also not present at the Sub-Registrar’s office at the time of registration of Ext.6. Hence, the defendants contended that no reliance can be placed on Ext.6. Ext.6 is a deed of acknowledgement of the adoption. The defendants except denying the adoption have not taken any specific plea of fraud in their respective written statements. They tried to develop their case at the stage of leading evidence, which is not permissible in law. Moreover, Section 16 of the Hindu Adoptions and Maintenance Act, 1956 attaches a presumption of genuineness to a registered deed of adoption. No pleading assailing the genuineness of Ext.6 is available in the written statements of defendants. Further, Gomati Bai accepting plaintiff to be her adopted son impleaded him as a party to the suit before Calcutta High Court. In view of the above and more particularly when Gomati Bai herself accepted plaintiff as her son (adopted) and a registered instrument is available in support of the same, I proceed with the discussion treating plaintiff to be the adopted son of Gomati Bai. 11. The next contention of Mr. Mohanty, i.e., whether Gomati would succeed to the interest of Liladhar or the interest of Liladhar, after his death, had reverted back to the reversioner, Ramkumar, has to be analyzed. At the time of death of Liladhar in the year, 1935, the widow of Harmukh, namely, Sheo Bai and widow of Liladhar, namely, Gomati were alive. Sheo Bai died in the year, 1955. Before commencement of Hindu Women’s Right to Property Act, 1937 (for short ‘the Act, 1937’), a female Hindu in the joint family had only the right of maintenance in the joint family property. It is by operation of Section 3(1) of Act, 1937, a widow of a Hindu dying intestate become entitled to a share, as that of a son, in the interest of her husband in the joint family property. Before commencement of the Act, 1937, a widow had absolutely no share in the Hindu Joint Family property even if she was in possession of the same or any part thereof, as her possession did not confer any title. Before commencement of the Act, 1937, a widow had absolutely no share in the Hindu Joint Family property even if she was in possession of the same or any part thereof, as her possession did not confer any title. Moreover, it has been held by a Full Bench of this Court in the case of Radhi Bewa and another –v-Bhagaban Sahu and others, (AIR 1951 Orissa 378), that the provisions of the Act, 1937 have no retrospective effect so as to apply to the case of a widow whose husband had died prior to the date of commencement of the Act, 1937. Further, the ratio decided in the case of Eramma –v- Veerupana and others, reported in AIR 1966 SC 1879 , paragraph-7 of which has relevance for the purpose of our discussion, reads as follows: “7. It is true that the appellant was in possession of Eran Gowdas's properties but that fact alone is not sufficient to attract the operation of S. 14. The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to S. 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however, restricted the nature of her interest may be. The words "as full owner thereof and not as a limited owner" as given in the last portion of sub-s. (1) of S. 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, S. 14(1) of the Act contemplates that a Hindu female (who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. In other words, S. 14(1) of the Act contemplates that a Hindu female (who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called limited estate or 'widow's estate' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. The Explanation to sub-s. (1) of S. 14 defines the word 'property' as including "both movable and immovable property acquired by a female Hindu by inheritance or devise........... Sub-section (2) of S. 14 also refers to acquisition of property. It is true that the Explanation has not given any exhaustive connotation of the word 'property' but the word 'acquired' used in the Explanation and also in sub-s. (2) of S. 14 clearly indicates that the object of the section is to make a Hindu female a full owner of the property which she has already acquired or which she acquires after the enforcement of the Act. It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words, the provisions of S. 14(1) of the Act cannot be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the 'date of the commencement of the Act when she is only a trespasser without any right to property.” 12. In view of the law laid down in the aforesaid case law, it is manifest that Section 14 of Hindu Succession Act, 1956 (for short ‘the Act, 1956’) does not in any way confer any title of the property of joint Hindu family on a female Hindu, where she did not, in fact, possess any vestige of title prior to commencement of the Act, 1956 on it. It flows therefrom that Section 14 of the Act, 1956 cannot be interpreted to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words, the provision of section 14(1) of the Act, 1956 cannot be attracted in the case of a female Hindu, who is in possession of the property of the last male holder on the date of commencement of the Act, 1956 without semblance of right to property. In the case at hand, Gomati Bai being a pre-Act, 1937 widow had no right to the property of Liladhar (her husband). The aforesaid view of Hon’ble Supreme Court was also followed by this Court in the case of Sulabha Gouduni and others Vs. Abhimanyu Gouda and others, reported in AIR 1983 Orissa 71. Further, the Full Bench of this Court in the case of Radhi Bewa (supra), held that the provisions of Act, 1937 have no retrospective application to entitle a widow an interest in the joint family property of her husband, who died prior to the date of commencement of the Act, 1937. However, in the case of Jamunabai Bhalchandra Bhoir and others Vs. Moreshwar Mukund Bhoir, reported in AIR 2009 Bombay 34, while interpreting Section 3 (1) of the Act, 1937, it is held that if a Hindu male dies intestate leaving behind separate property, the same shall devolve upon his widow along with the lineal descendants subject to the provisions of sub-section (3) of Act, 1937. Sub-section (2) of Section 3 provides that if a Hindu governed by Mitakshara School of Law dies intestate having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. Sub-section (3) provides that the interest was to be limited interest known as Hindu Women’s estate. Section 4 of the Act, 1937, however, provides that nothing in the said Act (Act of 1937) shall apply to the property of any Hindu dying intestate before the commencement of this Act (Act of 1937). Thus, a Hindu widow could claim share in the property under Section 3 of the Act, 1937 if death of her husband occurred after commencement of the said Act. Thus, a Hindu widow could claim share in the property under Section 3 of the Act, 1937 if death of her husband occurred after commencement of the said Act. It is further held in the said case law that before commencement of the Act, 1937, a widow was not entitled to any right or share in the joint family property or even in the separate property of her husband. She had only the right of maintenance in the said property. A mere right of maintenance without actual acquisition of title, in any manner, is not sufficient to attract Section 14(1) of the Act, 1956. Thus, the pre-Act, 1937 widow cannot have any right or interest in a Hindu joint family property or coparcenary (See Controller Of Estate Duty Madras vs Alladi Kuppuswamy, reported in AIR 1977 SC 2069 ). Similar view has also been taken in AIR 1994 Orissa 10 and 2013 (II) OLR 634 . 13. In view of the discussions made above, there can be no second view that Gomati Bai had acquired no right in the suit property on the death of Liladhar. 14. It is the case of the plaintiff that Gomati Bai had adopted one Madanlal in the year 1940, who died as a bachelor in the year 1946. Effect of such adoption in the joint family property (suit land) is a vital question for determination of the right of the parties. Prior to commencement of the Hindu Adoptions and Maintenance Act, 1956, a Hindu woman did not have any right to adopt. Only a male Hindu had the right to adopt. However, Article 450 of the Old Hindu Law provides that every Hindu of sound mind, who has attained the age of discretion, could authorize his wife (except in Mithila) to adopt a son to him after his death, even if he had not attained the age of majority. The authority to adopt could be given by the husband, even if he was a member of a Mitakshara joint family at the time of his death. Further, Article 451 of the Old Hindu Law provides that the authority to adopt could be given to the widow alone, and not to any other person, nor could it be given to the widow conjointly with another. Further, Article 451 of the Old Hindu Law provides that the authority to adopt could be given to the widow alone, and not to any other person, nor could it be given to the widow conjointly with another. If a Hindu widow adopts a son with the authority of the husband or consent of sapindas, it relates back to the date of death of adoptive father (adoptive widow’s husband) and the adopted son in that case must be deemed, by a fiction of law, as the son of the adoptive father living at the time of latter’s death. The principle of relation back is subject to certain limitation and exception: firstly, that any lawful alienation effected by a male or female heir, since the death of the adoptive father, and before the date of adoption, would be binding on the adopted son; secondly, that if the property by inheritance goes to a collateral and a son is adopted after the death of the collateral, the adoption does not divest the property, which has vested in the heir of the collateral; and thirdly that the principle of relation back applies only when the claim is made in respect of the estate or interest of the adoptive father, and does not apply when the claim relates to the estate of a collateral. (See AIR 1954 SC 379 ). 15. In the case at hand, Madanlal was adopted in the year, 1940 i.e. prior to the death of Ramkumar in the year, 1980. Thus, while accepting that the theory of relation back is applicable to the adoption of Madanlal by Gomati Bai, I hold that the limitations to the principles of relation back, as stated above, does not apply to this case. 16. It is next submitted by Mr. R.K. Mohanty, learned Senior Advocate that adoption of Madanlal by Gomati Bai in the year, 1940 related back to the death of Liladhar. Thus, after the death of Liladhar, his interest in the joint family property devolved upon Madanlal. Upon the death of Mandanlal in the year, 1946, his property devolved upon his heirs in accordance with law of succession prevailing then. Thus, the restrictions of the Act, 1937 is not applicable to the case at hand, because succession after the death of Madanlal could only be governed under the provisions of Entry 7 to Article 43 of Old Hindu Law. Per contra, Mr. Thus, the restrictions of the Act, 1937 is not applicable to the case at hand, because succession after the death of Madanlal could only be governed under the provisions of Entry 7 to Article 43 of Old Hindu Law. Per contra, Mr. Y. Mohanty, learned Senior Advocate submitted that the devolution of the property of a male Hindu under Mitakshara School of Law is made under Article-34 of the Mulla’s Hindu Law. He further submitted that the provisions under Article 43 of the Old Hindu Law are only applicable to the self-acquired or separate property of a male Hindu dying intestate. In view of the above, it would be appropriate to go through the provisions of Articles 34 and 43 of the Old Hindu Law, which reads as follows: “34. DEVOLUTION OF PROPERTY ACCORDING TO MITAKSHARA LAW:- In determining the mode in which the property of a Hindu male, governed by Mitakshara law, devolves on his death, the following propositions are to be noted: (1) Where the deceased was, at the time of his death, a member of joint and undivided family, technically called coparcenary, his undivided interest in the coparcenary property devolves on the coparceners by survivorship (see Act XVIII of 1937 and 35). (2) (i) even if the deceased was joint at the time of his death, he might have left self-acquired or separate property. Such property goes to his heirs by succession according to the order given in Article43, and not to his coparceners; (ii) if the deceased was at the time of his death, the sole surviving member of a coparcenary property, the whole of his property, including the coparcenary property, will pass to his heirs by succession according to the order given in Article 43. (iii) if the deceased was separate at the time of his death from his coparceners, the whole of his property, however acquired, will pass to his heirs by succession according to the order given in Article 43. (3) If the deceased was re-united at the time of his death, his property will pass to his heirs by succession according to the rule laid down in Article 60 below. 43. ORDER OF SUCCESSION AMONG SAPINDAS:- The sapindas succeed in the following order: (1-3) Son, grandson (son’s son) and great-grandson (son’s son’s son), and (after 14 April 1937) widow, predeceased son’s widow, and predeceased son’s predeceased son’s widow. xxx xxx xxx 4. 43. ORDER OF SUCCESSION AMONG SAPINDAS:- The sapindas succeed in the following order: (1-3) Son, grandson (son’s son) and great-grandson (son’s son’s son), and (after 14 April 1937) widow, predeceased son’s widow, and predeceased son’s predeceased son’s widow. xxx xxx xxx 4. Widow…….. 5. Daughter ………. 6. Daughter’s son ……… 7. Mother ………” 17. Thus, it is abundantly clear that Article 43 is applicable only to succession of self-acquired and separate property of a male Hindu dying intestate and not to the coparcenary or joint family property. Succession to joint family property or coparcenary, was being governed under Article 34 of Old Hindu Law before commencement of Act, 1956. In the case at hand, I have already held that the suit property is a joint family property. Entry (2) (i) and (ii) of Article-34 makes it further clear that the provisions under Article 43 are only applicable for succession to the self-acquired and separate property of a male Hindu dying intestate as well as a male Hindu who died as the sole coparcener. In the case at hand, Liladhar had no self acquired or separate property. In that view of the matter, the adoption of Madanlal in the year, 1940 and his death in the year, 1946 did not in any way affect devolution of interest of Liladhar in the undivided property of the family and thus Gomati Bai did not acquire any interest in the suit property on the death of Madanlal by operation of Entry-7 to Article 43 of Old Hindu Law. Consequently, upon death of Liladhar, his interest in the suit property reverts to Ramkumar. Although after adoption of Madanlal, the interest of Liladhar was divested of Ramkumar, it again reverted back to Ramkumar after death of Madanlal. 18. Mr. R.K. Mohanty, learned Senior Advocate appearing for the appellant argued in vehemence that after the death of Madanlal in the year, 1946, the defendant no. 7 (Gomati Bai) being the mother is entitled to succeed to the interest of Mandanlal in the coparcenary being her sapinda. Thus, the limited right of defendant no. 7 over the suit property becomes absolute after commencement of the Hindu Succession Act, 1956 by operation of Section 14 thereof. The interest of defendant no. 7 (Gomati Bai) in the property of the joint family becomes her Stridhan and she becomes the absolute and full owner in respect of the same. Thus, the limited right of defendant no. 7 over the suit property becomes absolute after commencement of the Hindu Succession Act, 1956 by operation of Section 14 thereof. The interest of defendant no. 7 (Gomati Bai) in the property of the joint family becomes her Stridhan and she becomes the absolute and full owner in respect of the same. In view of the aforesaid discussion, the submission of Mr. R.K. Mohanty, learned Senior Advocate has no force. 19. In order to establish, Gomati Bai had acquired interest in the suit property, Mr. Mohanty further referred to the decision of Calcutta High Court in Suit No. 188 of 1963 (Ext. 2) wherein it has been held that Gomati Bai is entitled to 50% share in the property of the joint family at Calcutta. Hence, he submitted that the decision of Calcutta High Court in respect of the interest of defendant no.7 in the joint family property is binding on the parties, as both Ramkumar and Chhotelal were parties to the said suit and such finding operates res judicata in the present suit. Further, the concept of coparcenary, if at all, was in existence at any point of time, stands obliterated by such adjudication severing the half share of Gomati and the theory of survivorship comes to an end and succession will be governed by inheritance. He relied upon the decision in the case of Kalyani (Dead) by Lrs. vs. Narayanan And Ors, reported in AIR 1980 SC 1173 , in paragraph 10 of which it has been held as follows:- “10. The next stage in the unfolding of the case is whether Ext. P-l is effective as a partition. Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Approviar v. Rama Subha Aiyar (1886) 11 M. I. A. 75 quoted with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and Ors, [1980] 1 SCR 161. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv 41 I.A. 151. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.” 20. Per contra, Mr. Y. Mohanty, learned Senior Advocate for the respondents submitted that the person, who has a semblance of right over the property can seek for severance of status and not a stranger to the property. In the case at hand, Gomati Bai had no semblance of right or title in the suit property. Thus, the case law cited has no application to the case at hand. Further, the suit before Calcutta High Court though filed in respect of the properties at Calcutta, Rajasthan and Cuttack, the Calcutta High Court decided the right of the parties in respect of the properties at Calcutta only and left it to Gomati Bai to get her right decided in appropriate forum in respect of the properties at Rajasthan and Cuttack. Further, the suit before Calcutta High Court though filed in respect of the properties at Calcutta, Rajasthan and Cuttack, the Calcutta High Court decided the right of the parties in respect of the properties at Calcutta only and left it to Gomati Bai to get her right decided in appropriate forum in respect of the properties at Rajasthan and Cuttack. The property at Calcutta was in respect of a rental house and the property at Cuttack is in respect of the undivided property of the joint family acquired jointly by the ancestors of the parties to the suit. The nature of interest of the parties in the properties involved in the suit at Calcutta and Cuttack are distinctly separate. Further, in view of the decree passed in the suit at Calcutta, giving liberty to the parties to raise their claim in respect of the property at Cuttack before the appropriate forum/court, the finding of Calcutta High Court with regard to the interest of defendant no. 7 (Gomati Bai) in the joint family property cannot operate as res judicata in the present suit. 21. I have already held that Gomati Bai had not acquired any right or succeeded to the interest of either Liladhar or Madanlal in the suit property. Thus, Gomati Bai having no interest and no right to claim for partition of the suit property, her claim for partition can’t severe the status of the parties in respect of the suit property. Further, the property involved in the suit before Calcutta High Court was taken on rent by both Harmukh and Ramkumar, whereas the properties involved in the present suit are Khasmahal leasehold property purchased under Ext. 4. Moreover, the Calcutta High Court while adjudicating the suit categorically refused to give any opinion with regard to the properties at Cuttack and Rajasthan and left it open to Gomati Bai (plaintiff therein) to establish her right, title and interest in a proper Court of Law. Thus, the findings with regard to the share of Gomati Bai cannot at all operate as res judicata, more particularly when the Calcutta High Court had left the issue open to be decided in proper Court of law. 22. The next issue which arises for consideration is the effect of adoption of Sheo Prakash (the plaintiff) by defendant no. Thus, the findings with regard to the share of Gomati Bai cannot at all operate as res judicata, more particularly when the Calcutta High Court had left the issue open to be decided in proper Court of law. 22. The next issue which arises for consideration is the effect of adoption of Sheo Prakash (the plaintiff) by defendant no. 7 (Gomati Bai) on succession to the suit property, after commencement of the Hindu Adoptions and Maintenance Act, 1956 and his renunciation of the world by snapping social ties and adopting Sanyas. 23. There is no dispute to the fact that Sheo Prakash (the plaintiff) after filing of the suit renounced the world and entered into a religious order. He was examined as P.W. 1 in the suit. He in his evidence at paragraph-24 deposed that “Presently I am residing at Swargashram at Rishikesh.” At paragraph-50 of his deposition he stated that ” After I took Sanyasa in the year 200I have not acquired any property. I am living at Rishikesh in the Ashram of my Gurudev Swami Dasarathananda.” Further, in paragraph-46, he deposed that “I had not performed ‘SUDHIKRIYA’, i.e., (obsequies ceremony) on her death. I had not performed her yearly Sradha Ceremony. After taking Sanyas, I had not performed Sradha Ceremony of late Leeladhar also”. Further, he at paragraph-56 of his deposition stated that “My new name after taking Sanyas is given by my Guru Swamy Dasarathananda as ‘Sudamananda Tirtha’ ”. 24. The learned trial court has also taken these statements of plaintiff (P.W.1) into consideration and after scrutinizing the same, observed that plaintiff is still coming to his family members and residing with them at Cuttack and also taking care of his family as well as pursuing this case. Hence, it was opined that in the instant suit, the plaintiff’s right as was existing on the date of filing of the suit is required to be examined and therefore, the argument that after taking Sanyas as per the Sastric law, the plaintiff is not entitled to any right over the property has got not much significance. Mr. R.K. Mohanty while supporting the said observation and finding of the learned trial court contended that burden lies on the defendants to prove that the plaintiff was a Sanyasi on the date of filing of the suit. Mr. R.K. Mohanty while supporting the said observation and finding of the learned trial court contended that burden lies on the defendants to prove that the plaintiff was a Sanyasi on the date of filing of the suit. He relied upon the case of Krishna Singh –v- Mathura Ahir and others, reported in AIR 1980 SC 707 . The Hon’ble Supreme Court at para-64 of the said judgment laid down as follows: “64. In order to prove that a person has adopted the life of a sanyasi, it must be shown that he has actually relinquished and abandoned all worldly possessions and relinquished all desire for them or that such ceremonies are performed which indicate the severance of his natural family and his secular life. It must also be proved, in case of orthodox sanyasis, that necessary ceremonies have been performed, such as Pindadana or Birajahoma or Prajapathiyesthi without which the renunciation will not be complete.” 25. In the instant case, the pleadings of the defendants are conspicuously silent on this aspect. In the written statement, there is not even a word spelt out about the plaintiff taking Sanyas. A relevant fact must be pleaded and proved. Renouncing the world by entering into the religious order, being relevant for adjudication of the issue of right of the plaintiff to succeed to the suit properly, must be pleaded and proved by the party (defendants-respondents), who seeks to derive benefit out of it. In absence of any pleading to that effect by the contesting defendants 1, 2 & 4 and only by relying upon the so called admission of the plaintiff at paras-24, 46, 50 and 56 of his depositions, it would not be safe to treat him as a Sanyasi to non-suit him, in view of the law laid down by the Hon’ble Supreme Court. As laid down at para-31 of the said decision to the effect that after entering into a religious order, a person severs all his connection with the members of the natural family but before coming to such a conclusion, it must be pleaded and proved that the plaintiff-appellant had, in fact, entered into a religious order in the manner laid down under the aforesaid decision and not a ‘Sanyas’ as per common parlance. Visiting of religious places or Ashrams (Rishikesh in the instant case) and staying there for some days does not by itself lead to a conclusion that the plaintiff had adopted Sanyas. Moreover, nonperformance of Sudhikriya or Shradha of his mother (defendant no. 7) and annual Sradha of Liladhar by the plaintiff is inconsequential to come to a conclusion that the plaintiff had entered into the religious order. There being no pleading or issue to the effect that the plaintiff has entered into religious order by taking Sanyas, the plea of the defendants to the effect that the plaintiff has adopted the life of a Sanyas by entering into the religious order is not acceptable. Further, right to relief must be judged as on the date the suitor institutes the legal proceeding. It is also held in AIR 1975 SC 1409 and followed in AIR 1976 SC 49 as follows: “8. In P. Venkateswarlu v. Motor & General Traders, AIR 1975 SC 1409 , 1410, this Court dealt with the adjectival activism relating to post-institution circumstances. Two propositions were laid down. Firstly, it was held that 'it is basic to our procedural jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding'. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right because, as explained earlier, had the court found his facts to be true the day he sued he would have got his decree. The Court's procedural delays cannot deprive him of legal justice or rights crystallized in the initial cause of action. This position finds support in Bhajan Lal v. State of Puniab, 1971 (1) SCC 34 .” 26. The learned trial court has rightly held that when the plaintiff has himself filed the suit and has deposed in his evidence that he is looking after and managing the affairs of his family, it cannot be said that he has entered into religious order by renouncing the world. The plaintiff was adopted by defendant no. 7 in the year, 1961 and a deed of acknowledgement of adoption was executed on 11.2.1965 by defendant no. 7 (Ext.6). The plaintiff was adopted by defendant no. 7 in the year, 1961 and a deed of acknowledgement of adoption was executed on 11.2.1965 by defendant no. 7 (Ext.6). In view of the provisions under Section 12 of the Hindu Adoptions and Maintenance Act, 1956, the adoption of the plaintiff by defendant no. 7 can take effect only from the date when he (plaintiff) was adopted. The theory of relation back is not applicable to the adoption of the plaintiff by defendant no.7. Hence, the plaintiff would only be entitled to the interest of defendant no. 7, if any, in the suit property. 27. Thus, the plaintiff is not entitled to inherit any interest in the suit property through Gomati Bai (defendant no.7). Moreover, the suit land is a Khasmahal Kisam of land and it was purchased jointly by Harmukh and Ramkumar in the year, 1910. The Khasmahal authority granted the lease in the name of defendant no. 7 along with others in respect of the suit property on 3.5.1951. But, defendant no.7 never signed the lease deed. Section 107 (iii) of the Transfer of Property Act, 1882 mandates that where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both lesser and lessee. Gomati Bai (defendant no. 7) had not signed on the lease deed. P.W.1 (the plaintiff) also admitted the same in paragraph-40 of his deposition. Moreover, lease granted in favour of defendant no. 7 (Gomati Bai) had expired since, 1973. Thereafter, the defendant nos. 1 to 3 and the husband of defendant no. 4 applied for fresh lease in their favour, which has been granted by the Khasmahal authority. The lease was granted in favour of defendant nos. 1 to 3 and husband of defendant no.4 pursuant to the decree passed in T.S. No. 30 of 1981. Defendant no.7 had never applied for recording of her name in respect of the suit property nor had she ever challenged the lease granted in favour of defendant nos. 1 to 3 and the husband of defendant no. 4. The decree passed in T.S. No 30 of 1981 also remained un-assailed. No doubt, Khasmahal lease is heritable and transferable, but a fresh right has been created by the Khasmahal authority in favour of defendant nos. 1 to 3 and the husband of defendant no. 4. The decree passed in T.S. No 30 of 1981 also remained un-assailed. No doubt, Khasmahal lease is heritable and transferable, but a fresh right has been created by the Khasmahal authority in favour of defendant nos. 1 to 3 and the husband of defendant no. 4 by executing fresh lease deeds in their favour. The same having reached its finality is binding on defendant no.7. The plaintiff has no independent right in the suit property. He all-throughout claims right over the suit property through Gomati Bai (defendant no.7), his mother. When defendant no.7 has no right over the suit property, the plaintiff can not claim any right over the same. Further, findings to the effect that in absence of minor (defendant no. 6) whose deletion was sought for by the plaintiff and because of non-substitution of the legal heirs of defendant no. 7, the suit was not maintainable, are not sustainable in the eye of law, inasmuch as the sole legal heir of defendant no. 7 is the plaintiff and the defendant no. 6 has not raised any objection till date with regard to his right. Thus, the contention of Mr. R.K. Mohanty, learned Senior Advocate appearing for the appellant to the effect that the suit was maintainable is accepted. 28. Taking into consideration the totality of the facts, circumstances, arguments advanced and discussion made above, I am of the considered view that the plaintiff has no interest in the suit property. 29. Accordingly, the judgment and decree dated 20.12.2011 and 2.01.2012 respectively passed by the learned 2nd Addl. Civil Judge (Senior Division), Cuttack in C.S. No. 46 of 1995 are confirmed to the extent stated above. Thus, the appeal being sans merit is dismissed and the cross-objection is allowed to the extent stated above. But, in the circumstances, there shall be no order as to costs.