Sitabai & ANR Vs. Ram Chandra
[1969] INSC 194 (20 August 1969)
20/08/1969 RAMASWAMI, V.
RAMASWAMI, V.
SHAH, J.C. (CJ) GROVER, A.N.
CITATION: 1970 AIR 343 1970 SCR (2) 1 1969
SCC (2) 544
CITATOR INFO:
R 1985 SC 716 (7) R 1988 SC 845 (7)
ACT:
Hindu Law-Joint family properties in the
hands of sole surviving coparcener-If properties lose their character of joint
family property.
Hindu Adoption and Maintenance Act (78 of
1956) ss. 11 to 14-Adoption by widow-Deceased husband, if deemed to be father.
Madhya Bharat Land Revenue and Tenancy Act
(M.B. Act 66 of 1950), s. 86-Tenancy right of ordinary tenant, if heritable-
Heritability governed by personal law.
HEADNOTE:
Two brothers were in possession of ancestral
properties consisting of a house and tenancy rights of an ordinary tenant in
agricultural lands. The eider brother died in 1930 leaving a widow, the first
appellant. The first appellant continued to live with the younger brother and
had an illegitimate son by him, the respondent. In March 1958, she adopted the
second appellant, and some time later, the surviving brother died. After his
putative father died the respondent took possession of all the joint family
properties. The two appellants thereupon filed a suit for ejectment. The trial
court decreed the suit. The first appellate court found that a will executed by
the respondents father (the younger brother) was valid in so far as his half
share in the house was concerned and therefore modified the decree by granting
a half-share of the house to the respondent. In second appeal, the High Court
held that the appellants were: not entitled to any relief and that there suit
should be dismissed, on the grounds that: (1) the joint family properties
ceased to have that character in the hands of the surviving brother when he
became the sole surviving coparcener and (2) the second appellant did not
become, on his adoption, a coparcener with his uncle in the joint family
properties.
In appeal to this Court.
HELD: (1) The joint family properties
continued to retain their character in the hands of the surviving brother, as
the widow (the first appellant) of the elder brother was still alive and
continued to enjoy the right of maintenance out of the joint family properties.
[5 B] Gowli Buddanna v.C.I.T. Mysore, 60 I.T.R. 29.3 (S.C.), followed.
A. G. of Ceylon v.A.R. Arunachalam Chettiar
[1957] A.C. 540, applied.
(2) The scheme of ss. 11 and 12 of the Hindu
Adoptions and Maintenance Act, 1956, is that in the case of adoption by a widow
the adopted child becomes absorbed in the adoptive family to which the widow
belonged. Though s. 14 of the Act does not expressly state that the child
adopted by a widow becomes the adopted son of her deceased husband, it is a
necessary implication of ss. 12 and 14 of the Act.
That is why, s. 14(4) provides that when a
widow adopts a child and subsequently marries, that husband becomes the step-father
of the adopted child. There- 2 fore, in the present case, when the the second
appellant was adopted by the first appellant he became the adopted son of the
first appellant and her deceased husband, namely, the elder brother, and' hence
became a coparcener with the surviving brother in the joint family properties;
and, 'after the death of the surviving brother the second appellant became the
sole surviving coparcener entitled to the possession of all the joint family
properties except those bequeathed under the will, that is, except the half
share of the house. [7 D--G; A--B] Arukushi Narayan v. Janabai Sama Sawat, 67
B.L.R. 864, approved.
(3) Section 86 of the Madhya Bharat Land
Revenue and Tenancy Act, 1950 'applies to the rights of an ordinary tenant in
agricultural lands which were therefore heritable.
In the absence of any special statutory
provision, the heritability is governed by the personal law of the tenants.
Therefore, the second appellant was entitled
to the tenancy rights of his uncle on his death. [8 G--H; 9 C--D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 856 of 1966.
Appeal by special leave from the judgment and
decree dated September 7, 1965 of the Madhya Pradesh High Court, Indore Bench
in Second Appeal No. 275 of 1962.
M.C. Chagla and A. K. Nag, for the
appellants.
K. A. Chitale and R. Gopalakrishnan, for the
respondent.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought by special leave from the judgment of the
Madhya Pradesh High Court dated September 7, 1965 in Second Appeal No. 275 of
1962.
Dulichand and Bhagirath were brothers and the
properties concerned are, according to the written statement of the defendant
himself, ancestral. Plaintiff Sitabai is the widow of Bhagirath, who predeceased
Dulichand, his elder brother sometime in 1930. It is the admitted case of both
the parties that after Bhagirath died, the plaintiff Sitabai was living with
Dulichand as a result of which connection an illegitimate child defendant
Ramchandra was born in 1935.
Dulichand died on March 13, 1958. Sometime
before his death Sitabai adopted plaintiff no. 2 Suresh Chandra and an adoption
deed was executed on March 4, 1958. After the death of Dulichand Ramchandra
took possession of the joint family properties. The plaintiff therefore brought
the present suit for ejectment of the defendant Ramchandra, the illegitimate
son of Dulichand from the disputed properties.
The suit was contested by the defendant on
the ground that Dulichand had in his lifetime surrendered the lands to the
Jagirdar who made resettlement of the same with the defendant. As regards the
house the contention of the defendant was that Dulichand had executed a will
before his death making a bequest of his house entirely to him. The trial court
decided all the issues in favour of the plaintiff and 3 granted the plaintiffs
a decree for possession with regard to the land and the house. The defendant
took the matter in appeal to the District Judge who modified the decree.
The District Judge took the view that the
will executed by Dulichand was valid so far as half of his share in the house
was concerned and, therefore, defendant was entitled to claim half the share of
the house in dispute. The defendant preferred a second appeal before the Madhya
Pradesh High Court which reversed the decree of the lower courts and held that
the plaintiff was not entitled to any relief and the suit should be dismissed
in its entirety. The High Court held that plaintiff no. 2 became the son of
plaintiff no. 1 in 1958 from the date of adoption and did not obtain any
coparcenary interest in the joint family properties.
The High Court thought that on the date of
adoption Dulichand was the sole coparcener and there was nobody else to take a
share of his property and plaintiff no. 2 had no concern with the coparcenary
property in the hands of Dulichand.
The first question to be considered in this
appeal is whether the High Court was right in holding that plaintiff no. 2
Suresh Chandra at the time of his adoption by plaintiff no. 1 did not become a
coparcener of Dulichand in the joint family properties. It is the admitted case
of both the parties that the properties consisted of agricultural land and a
house jointly held by Bhagirath and Dulichand. After the death of Bhagirath,
Dulichand became the sole surviving coparcener of the joint family. At the time
when plaintiff no. 2 Suresh Chandra was adopted the joint family still
continued to exist and the disputed properties retained their character of
coparcenary properties. It has been pointed out in Gowli Buddanna v. Commissioner
of Income-tax, Mysore(1) that under the Hindu system of law a joint family may
consist of a single male member and widows of deceased male members and that
the property of a joint family did not cease to belong to a joint family merely
because the family is represented by a single coparcener who possesses rights
which an absolute owner of property may possess. In that case, one Buddappa,
his wife, his two unmarried daughters and his unmarried son, Buddanna, were
members of a Hindu undivided family.
Buddappa died and after his death the
question arose whether the income of the properties held by Buddanna as the
sole surviving coparcener was assessable as the individual income of Buddanna
or as the income of the Hindu Undivided Family.
It was held by this Court that since the
property which came into the hands of Buddanna as the sole surviving coparcener
was originally joint family property, it did not cease to belong to the joint
family and income from it was assessable in the hands of Buddanna as income of
the Hindu Undivided Family. As a pointed out by the Judicial Committee in
Attorney General of Ceylon v.A.R. Arunachalam Chettiar(2) it is only by
analysing (1) 60 I.T.R. 293 (S.C.). (2) [1957] A.C.
540.
4 the nature of the rights of the members of
the undivided family, both those in being and those yet to be born, that it can
be determined whether the family property can properly be described as 'joint
property' of the undivided family. In that case one Arunachalam Chettiar and
his son constituted a joint family governed by the Mitakshara school of Hindu
law. The father and son were domiciled in India and had trading and other
interests in India, Ceylon and Far Eastern countries. The undivided son died in
1934 and Arunachalam became the sole surviving coparcener in the Hindu
undivided family to which a number of female members belonged. Arunachalam died
in 1938, shortly after the Estate Ordinance no. 1 of 1938 came into operation
in Ceylon. By s. 73 of the Ordinance it was provided that property passing on
the death of a member of the Hindu undivided family was exempt from payment of
estate duty. On a claim to estate duty in respect of Arunachalam's estate in
Ceylon, the Judicial Committee held that Arunachalam was at his death a member
of the Hindu undivided family, the same undivided family of which his son, when
alive, was a member and of which the continuity was preserved after
Arunachalam's death by adoption made by the widows of the family and since the
undivided family continued to persist, the property in the hands of Arunachalam
as a single coparcener was the property of the Hindu undivided family.
The Judicial Committee observed at p. 543 of
the report.
" ...... though it may be correct to
speak of him as the 'owner', yet it is still correct to describe that which he
owns as the joint family property. For his ownership is such that upon the
adoption of a son it assumes a different quality; it is such, too, that female
members of the family (whose members may increase) have a right to maintenance
out of it and in some circumstances to a charge for maintenance upon it. And
these are incidents which arise, notwithstanding his so-called ownership, just
because the property has been and has not ceased to be joint family property.
Once again their Lordships quote from the judgment of Gratiaen, J. To my mind
it would make a mockery of the undivided family system if this temporary
reduction of the coparcenary unit to a single individual were to convert what
was previously joint property belonging to an undivided family into the
separate property of the surviving coparcener. To this it may be added that it
would not appear reasonable to impart to the legislature the intention to
discriminate, so long as the family itself subsists, between property in the
hands of a single coparcener and that in the hands of two or more
coparceners." 5 The basis of the decision was that the property which was
the joint family property of the Hindu undivided family did not cease to be so
because of the "temporary reduction of the coparcenary unit to a single
individual". The character of the property, viz. that it was the joint
property of a Hindu undivided family, remained the same. Applying the principle
to the present case, after the death of Bhagirath the joint family property
continued to retain its character in the hands of Dulichand as the widow of
Bhagirath was still alive and continued to enjoy the right of maintenance out
of the joint family properties.
The question next arises whether Suresh
Chandra, plaintiff no. 2, when he was adopted by Bhagirath's widow became a
coparcener of Dulichand in the Hindu joint family properties. The High Court
has taken the view that Suresh Chandra became the son of plaintiff no. 1 with
effect from 1958 and plaintiff no. 2 would not become the adopted son of
Bhagirath in view of the provisions of the Hindu Adoptions and Maintenance Act,
1956 (Act 78 of 1956). It was argued on behalf of the appellant that the High
Court was in error in holding that the necessary consequence of a widow
adopting a son under the provisions of Act 78 of 1956 was that the adopted
would be the adopted son of the widow and not of her deceased husband. In our
view the argument put forward on behalf of the appellant is well-founded and
must be accepted as correct. Section 5(1) of Act 78 of 1956 states:
"(1) No. adoption shall be made after
the commencement of this Act by or to a Hindu except in accordance with the
provisions contained in this chapter ...... " Section 6 deals with the
requisites of a valid adoption and provides:
"No adoption shall be valid unless-- (i)
the person adopting has the capacity, and also the right, to take in adoption.
(ii) the person giving in adoption has the
capacity to do so;
(iii) the person adopted is capable of being
taken in adoption; and (iv) the adoption is made in compliance with the other
conditions mentioned in this Chapter." Sections 7 and 8 relate to the
capacity of a male Hindu and a female Hindu to take in adoption Under s. 7 any
male Hindu who is of sound mind and is not a minor has the capacity to take a
son or a daughter in adoption. If he is married, requires the consent of his
wife in connection with the adoption. A person 6 having more than one wife is
required to have the consent of all his wives. Under s. 8 any female Hindu, who
is of sound mind and not a minor is stated to have capacity to take a son or a
daughter in adoption. The language of this section shows that all females
except a wife have capacity to adopt a son or a daughter Thus,, an unmarried
female or a divorcee or a widow has the legal capacity to take a son or a
daughter in adoption. Section 11 relates to "other conditions for a valid
adoption".
Clause (vi) of s. 11 states:
"(vi) the child to be adopted must be
actually given and taken in adoption by the parents or guardian concerned or
under their authority with intent to transfer the child from the family of its
birth to the family of its adoption." Section 12 enacts:
"An adopted child shall be deemed to be
the child of his or her adoptive father or mother for all purposes with effect
from the date of the adoption and from such date all the ties of the child in
the family of his or her birth shall be deemed to be severed and replaced by
those created by the adoption in the adoptive family; Provided that-- (a) (b)
(c) the adopted child shall not divest any person of any estate which vested in
him or her before the adoption." Section 14 provides:
"( 1 ) Where a Hindu who has a wife
living adopts a child, she shall be deemed to be the adoptive mother.
(2) Where an adoption has been made with the
consent of more than one wife', the senior-most in marriage among them shall be
deemed to be the adoptive mother and the others to be step-mothers.
(3) Where a widower or a bachelor adopts a
child any wife whom he subsequently marries shall be deemed to be the
step-mother of the adopted child.
(4) Where a widow or an unmarried woman
adopts a child, any husband whom she marries subsequently shall be deemed to be
the step-father of the 7 adopted child." It is clear on a reading of the
main part of s. 12 and sub-s. (vi) of s. 11 that the effect of adoption under
the Act is that it brings about severance of all ties of the child given in
adoption in the family of his or her birth.
The child altogether ceases to have any ties
with the family of his birth. Correspondingly, these very ties are
automatically replaced by those created by the adoption in the adoptive family.
The legal effect of giving the child in adoption must therefore be to transfer
the child from the family of its birth to the family of its adoption. The
result is, as mentioned in s. 14(1) namely where a wife is living, adoption by
the husband results in the adoption of the child by both these spouses; the
child is not only the child of the adoptive father but also of the adoptive
mother. In case of there lying two wives, the child becomes the adoptive child
of the senior-most wife in marriage, the junior wife becoming the step-mother
of the adopted child. Even when a widower or a bachelor adopts a child, and he
gets married subsequent to the adoption, his wife becomes the step-mother of
the adopted child. When a widow or an unmarried woman adopts a child, any
husband she marries subsequent to adoption becomes the step-father of the
adopted child. The scheme of ss. 11 and 12, therefore, is that in the case of
adoption by a widow' the adopted child becomes absorbed in the adoptive family
to which the widow belonged. In other words the child adopted is tied with the
relationship of sonship with the deceased husband of the widow. The other
collateral relations of the husband would be connected with the child through
that deceased husband of the widow. For instance, the husband's brother would
necessarily be the uncle of the adopted child. The daughter of the adoptive
mother (and father) would necessarily be the sister of the adopted son, and in
this way, the adopted son would become a member of the widow's family, with the
ties of relationship with the deceased husband of the widow as his adoptive
father. It is true that s. 14 of the Act does not expressly state that the
child adopted by the widow becomes the adopted son of the husband of the widow.
But it is a necessary implication of ss. 12 and 14 of the Act that a son
adopted by the widow becomes a son not only of the widow but also of the
deceased husband. It is for this reason that we find in sub-s. (4) of s. 14 a
provision that where a widow adopts a child and subsequently marries a husband,
the husband becomes the "step-father" of the adopted child. The true
effect and interpretation of ss. 11 and 12 of Act No. 78 of 1956 therefore is
that when either of the spouses adopts a child, all the ties of the child in
the family of his or her birth become completely severed and these are all
replaced by those created by the adoption in the adoptive family. In other
words the result of adoption by either spouse is that the 8 adoptive child
becomes the child of both the spouses. This view is borne out by the decision
of the Bombay High Court in Arukushi Narayan v. Janabai Sama Sawat(1). It
follows that in the present case plaintiff no. 2 Suresh Chandra, when he was
adopted by Bhagirath's widow, became the adopted son of both the widow and her
deceased husband Bhagirath and, therefore, became a coparcener with Dulichand
in the joint family properties. After the death of Dulichand, plaintiff no. 2
became the sole surviving coparcener and was entitled to the possession of all
joint family properties. The Additional District Judge was, therefore, right in
granting a decree in favour of the plaintiff no. 2 declaring his title to the
agricultural lands in the village Palasia and half share of the house situated
in the village.
It is contended on behalf of the respondent
that the rights of the Inamdar's tenants were not heritable under the Madhya
Bharat Land Revenue and Tenancy Act, 1950 (Act no. 66 of 1950) and therefore
the plaintiffs could not claim to become the Inamdar's tenants after the death
of Dulichand in the absence of a contract between the Inamdar and themselves.
Reference was made to ss. 63 to 88 dealing with the rights of pakka tenants and
it was argued that there was no provision in the Act dealing with the rights of
an ordinary tenant. Section 87 states:
"An ordinary tenant is entitled to hold
the land let to him in accordance with such terms as may be agreed upon with
the person from whom he holds, provided that they are not inconsistent with the
provisions of this Act." Section 89 deals with the rights of sub- tenants
and reads:
"( 1 ) A sub-tenant is entitled to hold
the land let to him in accordance with such terms as may be agreed upon with
the person from whom he holds, subject to his compliance with the general
conditions of tenancy as laid down in section 55, provided that he shall, in no
circumstances, lease out the land to any person." It is not possible to
accept the argument advanced on behalf of the respondent that under the scheme
of Act 66 of 1950 the rights of ordinary tenant are not heritable. It is true
that there are special provisions with regard to heritability as regards pakka
tenant. But in the absence of any special statutory provision, the heritability
of ordinary tenancies must be governed by the personal law of the tenants
concerned. Section 86 of the Act contains provisions with regard to mutation of
names. Sub-section (1) of s. 8 6 states:
(1) 67 B.L.R. 864 9 "When a holder of
land, other than an assignee of proprietary rights, loses his rights, in any
land in a village by death or by surrender of abandonment of the land or by
transfer of his rights to any other person, or by dispossession or otherwise,
the patwari of the village in which the land is situated shah forthwith report
the fact to the Tehsildar intimating the name of the new holder and the grounds
on which the latter claims to succeed to the title of the former holder. Any
person claiming to succeed to the title of the former holder may also apply to
the Tehsildar for the mutation of his name within a period of two years from
the date the last holder loses his rights." The section applies to all
classes of tenants and contemplates heritability and transferability of the
rights of a tenant or a subtenant. We accordingly reject the argument of the
respondent that the rights of Dulichand were not heritable.
It is also urged on behalf of the respondent
that the jurisdiction of the Civil Court was barred by the provisions of the
Madhya Bharat Land Revenue Administration and Ryotwari Land Revenue and Tenancy
Act, 1950 (Act no. 66 of 1950). This issue was decided against the respondent
in the trial court and also in the first appellate court. The decision of the
lower courts on this point was not challenged in the High Court and it is not
permissible for the respondent to raise this question at this stage.
For the reasons already given we hold that
the judgment and decree of the High Court of Madhya Pradesh dated September 7, 1965 in Second Appeal no. 275 of 1962 should be set aside and the judgment
and decree of the Additional District Judge, indore dated April 21, 1962 in First Appeal No. 26 of 1961 should be restored. This appeal is accordingly allowed
with costs.
V.P.S. Appeal allowed.
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