Dharma
Shamrao Agalawe Vs. Pandurang Miragu Agalawe & Ors [1988] INSC 49 (22 February 1988)
Venkataramiah,
E.S. (J) Venkataramiah, E.S. (J) Singh, K.N. (J)
CITATION:
1988 AIR 845 1988 SCR (2)1077 1988 SCC (2) 126 JT 1988 (1) 376 1988 SCALE
(1)365
ACT:
Hindu
Adoptions and Maintenance Act, 1956-Section 12- Proviso (c)-Interpretation
of-Whether a person adopted by a Hindu widow can claim share in the joint
family property which had devolved on a sole surviving coparcener on the death
of the husband of the widow who took him in adoption- Whether it bars filing of
a suit for that purpose.
Hindu
Law-Mitakshara School-Joint family property devolving on a sole
coparcener-Whether remains joint family property-Distinction between powers of
manager of joint family property and sole surviving coparcener-Whether a person
adopted by a widow after the Hindu Adoption and Maintenance Act, 1956 came into
force can claim share in the joint family property which had devolved on a sole
coparcener prior to the Act.
HEAD NOTE:
% A
person had two sons, the appellant-Dharma and another Miragu. Miragu died
issueless in 1928 leaving behind his widow, respondent No. 2. The Joint family
property devolved on the appellant as sole surviving coparcener. The appellant
disposed of certain properties. In 1956 the Hindu Adoptions and Maintenance
Act, 1956 came into force. In 1968 the widow took respondent No. 1 in adoption.
Respondent Nos. 1 and 2 filed a suit for partition and separate possession of
one- half share in the property of the joint family. Trial Court dismissed the
suit. Respondent Nos. 1 and 2 filed an appeal which was allowed by the District
Judge and a preliminary decree for partition and separate possession was
passed. The appellant filed an appeal before the High Court and the High Court
affirmed the decree passed by the District Judge.
Hence this
appeal by special leave. The contention of the appellant was that respondent
No. 1 could not divest him of any part of the estate which had been vested in
him before the adoption of respondent No. 1 in view of clause (c) of the
proviso to section 12 of the Act. Dismissing the appeal, this Court, ^
HELD:
The Joint family property does not cease to be joint family property when it
passes to the hands of a sole surviving coparcener.
1078
If a son is born to the sole surviving coparcener, the said properties become
the joint family properties in his hands and in the hands of his son. The only
difference between the right of a manager of a joint Hindu family over the
joint family properties where there are two or more coparceners and the right
of a sole surviving coparceners in respect of the joint family properties is
that while the former can alienate the joint family properties only for legal
necessity or for family benefit, the latter is entitled to dispose of the coparcenary
property as if it were his separate property as long as he remains a sole
surviving coparcener and he may sell or mortgage the coparcenary property even
though there is no legal necessity or family benefit or may even make a gift of
the coparcenary property.
If a
son is subsequently born to or adopted by the sole surviving coparcener or a
new coparcener is inducted into the family on an adoption made by a widow of a
deceased coparcener an alienation made by the sole surviving coparcener before
the birth of a new coparcener or the induction of a coparcener by adoption into
the family whether by way of sale, mortgage or gift would however stand, for
the coparcener who is born or adopted after the alienation cannot object to
alienations made before he was begotten or adopted. [1085G-H; 1086A-C] In the
instant case the joint family properties which belonged to the joint family
consisting of Dharma-the appellant and his brother Miragu continued to retain
the character of joint family properties in the hands of Dharma- the appellant
as Champabai, the widow of Miragu was still alive and continued to enjoy the
right of maintenance out of the said joint family properties. Pandurang-the 1st
respondent on adoption became the adopted son of Miragu and became a coparcener
with Dharma-the appellant in the joint family properties. When once he became a
member of the coparcenary which owned the joint family properties he was
entitled to institute a suit for partition and separate possession of his
one-half share in the joint family properties, of course, except those which
had been alienated in favour of third parties before the adoption by Dharma-the
appellant. [1084E-G] Clause (c) to proviso of section 12 of the Act would not
be attracted in the instant case since there was no 'vesting' of joint family
property in Dharma-the appellant which took place on the death of Miragu and no
'divesting' of property took place when Pandurang-the first respondent was
adopted. [1086D-E] The Joint family properties continued to remain in the hands
of Dharma-the appellant as joint family properties and that on his adoption Pandurang-the
1st respondent became a member of the coparce- 1079 nary entitled to claim
one-half share in them except those items which had been sold by Dharma-the
appellant. [1086F] Y.K. Nalavade and Ors. v. Anand G. Chavan and Ors., A.I.R.
1981 Bombay 109, approved.
Sawan
Ram & Ors. v. Kala Wanti & Ors., [1967] 3 S.C.R.
687; Sitabai
and Anr. v. Ram Chandra, [1970] 2 S.C.R. 1, referred to.
Narra Hanumantha
Rao v. Narra Hanumayya and Ors., [1964] 1 Andhra Weekly Reporter 156-I.L.R.
1966 A.P. 140, overruled.
Gowli Buddanna
v. Commissioner of Income Tax, Mysore Bangalore, [1966] 3 S.C.R. 224; Vasant and Anr.
v. Dattu and Ors., A.I.R. 1987 S.C. 399, followed.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 906 of 1984.
From
the Judgment and Order dated 8.7.1980 of the Bombay High Court in Second Appeal
No. 663 of 1971.
V.N. Ganpule
for the Appellant.
S.V. Deshpande
for the Respondent.
The
Judgment of the Court was delivered by VENKATARAMIAH, J. The short question
which arises for consideration in this case is whether a person adopted by a
Hindu widow after the coming into force of the Hindu Adoptions and Maintenance
Act, 1956 (hereinafter referred to as 'the Act') can claim a share in the
property which had devolved on a sole surviving coparcener on the death of the
husband of the widow who took him in adoption.
One Shamrao,
who was governed by the Mitakshara Hindu Law died leaving behind him two sons
Dharma (the appellant in this appeal) and Miragu. Miragu died issueless in the
year 1928 leaving behind him his widow Champabai-respondent No. 2. The
properties owned by the joint family of Dharma and Miragu passed on to the
hands of Dharma who was the sole surviving coparcener on the death of Miragu.
Under the law, as it stood then, Champabai had only a right of maintenance in
the joint family properties. The Act came into force on 1080 21st December, 1956. On 9.8.1968 she took Pandurang,
the 1st respondent, in adoption and immediately thereafter a suit was filed by Pandurang
and Champabai in Regular Civil Suit No. 457 of 1968 on the file of the Civil
Judge, Junior Division, Barsi for partition and separate possession of one-half
share in the properties of the joint family of which Dharma, the appellant
herein, and Miragu were coparceners. Before the said adoption took place, two
items of the joint family properties had been sold in favour of Defendant Nos.
3 and 17 for consideration. Champabai had instituted a suit for maintenance
against Dharma and obtained a decree for maintenance. Dharma resisted the suit
on the ground that Pandurang was not entitled to claim any share in the
properties which originally belonged to the joint family in view of clause (c)
of the proviso to section 12 of the Act and the properties which had been sold
by him in favour of third parties could not in any event be the subject-matter
of the partition suit.
The
Trial Court dismissed the suit. Pandurang and Champabai filed an appeal against
the decree of the Trial Court before the District Court, Sholapur in Civil Appeal No. 222 of 1970.
The learned District Judge allowed the appeal and passed a preliminary decree
for partition in favour of Pandurang and Champabai and separate possession of
one-half share of the joint family properties except the two fields which had
been sold earlier in favour of third parties. Aggrieved by the decree of the
District Judge, the appellant filed an appeal before the High Court of Bombay
in Second Appeal No. 663 of 1971. The High Court affirmed the decree passed by
the learned District Judge following the decision of that Court in Y.K. Nalavade
and Others v. Anand G. Chavan and Others, A.I.R. 1981 Bombay 109 in which it
had been held that clause (c) of the proviso to section 12 of the Act was not a
bar to such a suit for partition. This appeal by special leave is filed by the
appellant against the judgment of the High Court of Bombay.
The
only question urged on behalf of the appellant before us is that the suit for
partition should have been dismissed by the High Court as the 1st respondent-Pandurang
could not divest Dharma-the appellant of any part of the estate which had been
vested in him before the adoption in view of clause (c) of the proviso to
section 12 of the Act.
Section
12 of the Act reads thus:
12. 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 1081
deemed to be severed and replaced by those created by the adoption in the
adoptive family:
Provided
that- (a) the child cannot marry any person whom he or she could not have
married if he or she had continued in the family of his or her birth;
(b)
any property which vested in the adopted child before the adoption shall
continue to vest in such person subject to the obligations, if any, attaching
to the ownership of such property, including the obligation to maintain
relatives in the family of his or her birth;
(c)
The adopted child shall not divest any person of any estate which vested in him
or her before the adoption." It is argued that Pandurang became the child
of the adoptive mother for all purposes with effect from the date of the
adoption and only from that date all the ties of Pandurang in the family of his
birth should be deemed to have been severed and replaced by those created by
the adoption in the adoptive family and, therefore, Pandurang, the adopted son
could not claim a share in the joint family properties which had devolved on
the appellant by survivorship on the death of Miragu. In support of this
contention the appellant relied upon the decision of this Court in Sawan Ram
& Others v. Kala Wanti & Others, [1967] 3 S.C.R. 687. The facts
involved in that case were these. A widow, whose husband had died before the
Hindu Succession Act came into force, adopted the second respondent in that
case after the commencement of the Act. On the widow's death the appellant in
that case, claiming to be the nearest reversioner of her husband, filed a suit
challenging the adoption. The Trial Court dismissed the suit and the decree of
the Trial Court was affirmed by the High Court. Against the decree of the High
Court the appellant therein filed an appeal by special leave before this Court.
In that appeal, the appellant contended that (i) the adoption was invalid under
clause (ii) of section 6 read with section 9(2) of the Act as the son was given
in adoption by his mother, even though the father was alive, and (ii) since
under the Act an independent right of adoption had been given to Hindu female,
if a widow adopted a son, he could become the adopted son of the widow only and
could not be considered to be the son of her deceased husband also. This Court negatived
both the contentions. We are not 1082 concerned with the first ground for
purposes of this case.
On the
second contention this Court held that the provision in section 12 of the Act
made it clear that the adopted son of a Hindu female, who had been married, was
in fact the adopted son of her husband also. That decision was sufficient to
dismiss the suit filed by the appellant as the adopted son in that case being
the nearest heir was entitled to claim the properties involved in the suit to
the exclusion of the appellant therein who was a more distant heir was not,
therefore, entitled to lay claim to any part of the suit properties. In the
course of the said decision a decision of the Andhra Pradesh High Court in Narra
Hanumantha Rao v. Narra Hanumayya and Others, [1964] 1 Andhra Weekly Reporter
156-I.L.R. 1956 A.P. 140 had been cited before this Court. In that case the
High Court of Andhra Pradesh had taken the view that clause (c) of the proviso
to section 12 of the Act laid down explicity that the adoption of a son or
daughter by a male or female Hindu was not to result in the divesting of any
estate vested in any person prior to the adoption and that clause (c) also
applied to the interest which passed on by survivorship on the death of a
coparcener to the remaining coparceners. As pointed out earlier the said
question did not actually arise in the appeal before this Court. This Court,
however, observed as follows:
"It
may, however, be mentioned that the conclusion which we have arrived at does
not indicate that the ultimate decision given by the Andhra Pradesh High Court
was in any way incorrect. As we have mentioned earlier, the question in that
case was whether E, after the adoption by D, the widow of B, could divest C of
the rights which had already vested in C before the adoption. It is significant
that by the year 1936 C was the sole male member of the Hindu joint family
which owned the disputed property. B died in the year 1924 and A died in 1936.
By that time, the Hindu Women's Rights to Property Act had not been enacted and
consequently, C, as the sole male survivor of the family became full owner of
that property. In these circumstances, it was clear that after the adoption of
E by D, E could not divest C of the rights already vested in him in view of the
special provisions contained in clause (c) of the proviso to section 12 of the
Act. It appears that, by making such a provision, the Act has narrowed down the
rights of an adopted child as compared with the rights of a child born
posthumously. Under the Shastriclaw, if a child was adopted by a widow, he was
treated as a natural-born child 1083 and, consequently, he could divest other
members of the family of rights vested in them prior to his adoption. It was
only with the limited object of avoiding any such consequence on the adoption
of a child by a Hindu widow that these provisions in clause (c) of the proviso
to section 12, and section 13 of the Act were incorporated. In that respect,
the rights of the adopted child were restricted. It is to be noted that this
restriction was placed on the rights of a child adopted by either a male Hindu
or a female Hindu and not merely in a case of adoption by a female Hindu. This
restriction on the rights of the adopted child cannot, therefore, in our
opinion, lead to any inference that a child adopted by a widow will not be
deemed to be the adopted son of her deceased husband. The second ground taken
on behalf of the appellant also, therefore, fails." It is no doubt true
that the above observations appear to support a case of the appellant but since
we are of the view that these observations were not necessary for deciding the
case which was before the Court they have to be held obiter dicta.
In Sitabai
& Anr. v. Ram Chandra, [1970] 2 S.C.R. 1 which was again decided by a bench
of three Judges, this Court was called upon to decide a case which was more or
less similar to the one before us. In that case the facts were these. Two
brothers were in possession of ancestral properties consisting of a house and
tenancy rights of an ordinary tenant in agricultural lands. The elder brother
died in 1930 leaving a widow, the first appellant therein.
The
first appellant continued to live with the younger brother and had an
illegitimate son by him, the respondent therein. In March, 1958, she adopted
the second appellant, and some time later, the surviving brother died. After
his putative father died, the respondent who was the illegitimate son 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 held
that a will executed by the respondent's 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 their suit should be dismissed on two grounds, namely, (i) 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 copar- 1084 cener with his uncle
in the joint family properties. In this Court the appellants in that appeal
questioned both the conclusions reached by the High Court. On the first
contention, this Court held that 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 following the
decision of this Court in Gowli Buddanna v. Commissioner of Income Tax, Mysore, Bangalore, [1966] 3 S.C.R. 224. On the second contention this Court
held that the scheme of sections 11 and 12 of the Act was that in the case of
adoption by a widow the adopted child became absorbed in the adoptive family to
which the widow belonged.
It
further observed that though section 14 of the Act did not expressly state that
the child adopted by a widow became the adopted son of her deceased husband, it
was a necessary implication of sections 12 and 14 of the Act and that was why
section 14 of the Act provided that when a widow adopted a child and
subsequently married, that husband became the step-father of the adopted child.
Therefore, when 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. Applying the above decision
it has to be held in the case before us that the joint family properties which
belonged to the joint family consisting of Dharma-the appellant and his brother
Miragu continued to retain the character of joint family properties in the
hands of Dharma- the appellant as Champabai, the widow of Miragu was still alive
and continued to enjoy the right of maintenance out of the said joint family
properties. It should also be held that Pandurang-the 1st respondent on
adoption became the adopted son of Miragu and became a coparcener with Dharma-
the appellant in the joint family properties. When once he became a member of
the coparcenary which owned the joint family properties he was entitled to
institute a suit for partition and separate possession of his one-half share in
the joint family properties, of course, except those which had been alienated
in favour of third parties before the adoption by Dharma-the appellant.
The
effect of section 12 of the Act again came up for consideration before this
Court in Vasant and Another v. Dattu and Others, A.I.R. 1987 S.C. 399. In that
case interpreting clause (c) to the proviso 1085 of section 12 of the Act Chinnappa
Reddy, J. who spoke for the Court observed that in a case of this nature where
the joint family properties had passed on to the hands of the remaining members
of the coparcenary on the death of one of the coparceners no vesting of the
property actually took place in the remaining coparceners while their share in
the joint family properties might have increased on the death of one of the
coparceners which was bound to decrease on the introduction of one more member
into the family either by birth or by adoption. In the above connection, the
Court observed thus:
"4.
We are concerned with proviso (c) to section 12. The introduction of a member
into a joint family, by birth or adoption, may have the effect of decreasing
the share of the rest of the members of the joint family, but it certainly does
not involve any question of divesting any person of any estate vested in him.
The joint family continues to hold the estate, but, with more members than
before. There is no fresh vesting or divesting of the estate in anyone.
5. The
learned Counsel for the appellants urged that on the death of a member of a
joint family the property must be considered to have vested in the remaining
members by survivorship.
It is
not possible to agree with this argument.
The
property, no doubt passes by survivorship, but there is no question of any
vesting or divesting in the sense contemplated by s. 12 of the Act. To
interpret s. 12 to include cases of devolution by survivorship on the death of
a member of the joint family would be to deny any practical effect to the
adoption made by the widow of a member of the joint family. We do not think
that such a result was in the contemplation of Parliament at all." We
respectfully agree with the above observations of this Court in Vasant's case
(supra). The joint family property does not cease to be joint family property
when it passes to the hands of a sole surviving coparcener. If a son is born to
the sole surviving coparcener, the said properties become the joint family
properties in his hands and in the hands of his son. The only difference
between the right of a manager of a joint Hindu family over the joint family
properties where there are two or more coparceners and the right of a sole
surviving coparcener in respect of the joint family properties is that while
the former can alienate the joint family properties only for legal necessity or
for family benefit, the latter is entitled to dispose of the coparcenary pro-
1086 perty as if it were his separate property as long as he remains a sole
surviving coparcener and he may sell or mortgage the coparcenary property even
though there is no legal necessity or family benefit or may even make a gift of
the coparcenary property. If a son is subsequently born to or adopted by the
sole surviving coparcener or a new coparcener is inducted into the family on an
adoption made by a widow of a deceased coparcener an alienation made by the
sole surviving coparcener before the birth of a new coparcener or the induction
of a coparcener by adoption into the family whether by way of sale, mortgage or
gift would however stand, for the coparcener who is born or adopted after the alientation
cannot object to alientations made before he was begotten or adopted.
The
decision of the High Court of Bombay in Y.K. Nalavade's case (supra) which was
followed by the High Court in dismissing the appeal, out of which the present
appeal arises, has been rightly given. We agree with the reasons given by the
High Court of Bombay in that decision for taking the view that clause (c) to
proviso of section 12 of the Act would not be attracted to a case of this
nature since as observed by this Court in Vasant's case (supra) there was no
'vesting' of joint family property in Dharma- the appellant took place on the
death of Miragu and no 'divesting' or property took place when Pandurang-the
first respondent was adopted. The decision of the Andhra Pradesh High Court in Narra
Hanumantha Rao's case (supra) which takes a contrary view is not approved by
us. It, therefore, stands overruled.
The
joint family properties continued to remain in the hands of Dharma-the
appellant as joint family properties and that on his adoption Pandurang-the 1st
respondent became a member of the coparcenary entitled to claim one-half share
in them except those items which had been sold by Dharma-the appellant.
In the
result this appeal fails and it is dismissed.
There
is no order as to costs.
H.S.K.
Appeal dismissed.
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