Full Judgment Text
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6076 OF 2010
KASABAI TUKARAM KARVAR & ORS. APPELLANT(S)
VERSUS
NIVRUTI (DEAD) THROUGH LEGAL HEIRS & ORS. RESPONDENT(S)
J U D G M E N T
K. M. JOSEPH, J.
By the impugned judgment, the High Court has allowed
the Second Appeal No.299 of 2000 filed by defendant No.1.
The Second Appeal arose out of R.C.S No.91 of 1986 filed
by the first appellant ( Kasabai since deceased). The said
Suit was filed seeking partition of the plaint schedule
properties. The genealogy of the parties is admitted and
Signature Not Verified
is as follows:-
Digitally signed by
JAGDISH KUMAR
Date: 2022.07.27
16:58:16 IST
Reason:
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Kushaba (Died in 1948)
'
'
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' ' '
' ' '
Taibai Dhondabai Bhagubai Bhagubai
(Ist Wife) (IInd wife) (IIIrd wife)
(Died issueless) ' '
' '
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' ' ' ' '
' ' ' ' '
Sakhubai Thakubai Muktabai Kasabai Nivrutti
(Daughter) (Daughter) (Daughter) (Daughter) (adopted son)
2. The first appellant ( Kasabai since deceased) was the
plaintiff. Nivrutti , in other words is the adopted son and
referred to as the first defendant. The father of the
plaintiff and the first defendant and other family members
th
passed away on 16 March, 1948. We have already noticed
that the father had married on three occasions. The first
marriage did not produce any issues. The second marriage
produced defendant Nos. 4 to 6 in the present suit. The
third marriage entered by the father with Bhagubai (third
wife) produced one issue, namely, Kasabai. The plaintiff
was born, in fact, after 10 days of passing away of her
father. It is again not in dispute that the first defendant
was adopted by the widow on 17.11.1949 by a registered
deed. There is also no dispute that the adopted son
instituted a suit claiming right over the plaint schedule
properties impleading defendant Nos.4 to 6. Defendant Nos.
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4 to 6 are step sisters born to the second wife (Dhondabai)
and their father Kushaba. The said suit was decreed. In
the appeal, there was a compromise. On the strength of
the said compromise, the step sisters instituted a suit -
R.C.S. No. 53 of 1984. The said suit has been decreed
finally as we can notice by the dismissal of the Second
Appeal No.233 of 2000, as can be discerned from the common
judgment which is the impugned judgment in this case also.
3. The present civil appeal arises, however, from the
common judgment by which the High Court has allowed the
Second Appeal No.299 of 2000. The Second Appeal No.299 of
2000 arises from the suit for partition which we have
noticed was filed by the plaintiff. As far as the lis
between the step-sisters (defendant Nos. 4 to 6) and the
plaintiff is concerned, it has been given a quietus by the
common judgment.
4. As far as the cause of action relevant to the present
civil appeal is concerned, the plaintiff proceeded on the
basis that the plaint schedule properties are joint family
properties. It is the further case of the plaintiff that
the plaintiff being the daughter was entitled to share
along with the adopted son. Their mother also got a share
and remarried. The result of the remarriage has been found
by the Trial Court in favour of the plaintiff that her
share would vest in the legal heirs. Resultantly, both the
plaintiff and the first defendant (adopted son) would get
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1/2 share. This view also found acceptance in the hands
of the First Appellate Court. It is this concurrent finding
which has been reversed by the High Court in the Second
Appeal by the impugned judgment.
5. The High Court has found that in view of the adoption
made of a son by the widow, namely, the mother of the
plaintiff and the first defendant, the adoption would
relate back to the time of the death of the father- Kushaba
on 16.03.1948. The further consequence of the doctrine of
relation back being applied was that the adopted son would
emerge as the sole and exclusive heir and he would divest
the plaintiff of her rights.
6. It is also found by the High Court that the case of
the plaintiff that she was in joint possession of the plaint
schedule properties, did not inspire the confidence of the
Court. The said version was also disbelieved. This
necessarily resulted in the dismissal of the suit filed by
the plaintiff after reversing the concurrent findings.
7. We have heard learned counsel for the plaintiff and
learned counsel for the first defendant.
8. Learned counsel for the plaintiff would raise a
controversy as to the applicability of the doctrine of
relation back. He would further contend that the impugned
judgment results in the exclusion of the daughter who was
in the womb even when the father was alive and born
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immediately after the death of the father. She is entitled
to her rightful share. It is further pointed out with
reference to what is stated in Mulla on Hindu Law, 23rd
Edition Section 72 of Part I, that the daughter in the
region from which the parties hailed (the Bombay region)
would get the right as a heir. It is further contended
that upon remarriage of her mother, the plaintiff, as a
legal heir, would get, at any rate, a part of her right
and would be entitled to a share out of the estate of the
mother along with the adopted son.
9. Per- contra, the learned counsel for the adopted son
(first defendant) supports the impugned judgment. He would
submit that the High Court is right in applying the doctrine
of relation back. With reference to the discussion to be
found in Mulla on Hindu Law 23rd Edition relied upon by
the appellant, he would contend that the son would exclude
the daughter once it is found that there is valid adoption
and doctrine of relation back applies. Even the subsequent
divesting of the right of the mother would not enure to
the benefit of the plaintiff who is a daughter in view of
the subsequent adoption which relates back to the date of
death of the father.
10. As far as the doctrine of relation back goes, we need
only notice decisions of this Court in Govind Hanumantha
Rao Desai versus Nagappa alias Narahari Laxman Rao
Deshpande and Sever Others, (1972) 1 SCC 515 and Shripad
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Gajanan Suthankar versus Dattaram Kashinath Suthankar and
Others, (1974) 2 SCC 156. We may only further expatiate
by referring to paragraphs 6, 7 and 9 of Shripad Gajanan
Suthankar and Others (Supra) .
" 6. It is established law that the adoption by
a widow relates back to the date of the death of
the adoptive father, which, in this case, took
place in 1921. Indeed, the complexity of the
present case arises from the application of this
legal fiction of “relation-back” and the
limitations on the amplitude of that fiction vis-
a-vis the partition of 1944, in the light of the
rulings of the various High Courts and of the
Judicial Committee of the Privy Council, and of
this Court, the last of which is Govind v. Nagappa .
According to the appellant, the rights of the
adopted son, armed as he is with the theory of
“relation-back”, have to be effectuated retro-
actively, the guidelines wherefor are available
from the decided cases. It is no doubt true that
“when a member of a joint family governed by
Mitakshara law dies and the widow validly adopts
a son to him, a coparcenary interest in the joint
property is immediately created by the adoption
co-extensive with that which the deceased
coparcener had, and it vests at once in the adopted
son”. (See Mulla on Hindu Law , 13th Edn.p. 516.)
The same author, however, points out that:
“the rights of an adopted son arise for the first
time on his adoption. He may, by virtue of his
rights as adopted son, divest other persons in whom
the property vested after the death of the adoptive
father, but all lawful alienations made by previous
holder would be binding on him. His right to
impeach previous alienations would depend upon the
capacity of the holder who made the alienation as
well as on the nature of the action of alienation.
When the holder was a male, who had unfettered
right of transfer, e.g., the last surviving member
of a joint family, the adopted son could not
impeach the transfer. In case of females who had
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restricted rights of transfer even apart from any
adoption, the transfers would be valid only when
they are supported by legal necessity”. ( ibid , pp.
516-517; para 507.)
“An adopted son is bound by alienations made by
his adoptive father prior to the adoption to the
same extent as a natural-born son would be. ( ibid ;
p. 517: para 508.)
7. It is settled law that the rights of an
adopted son spring into existence only from the
moment of the adoption and all alienations made by
the widow before the adoption, if they are made for
legal necessity or otherwise lawfully, such as with
the consent of the next reversioners, are binding
on the adopted son. The narrow but important
question that arises here is as to whether the
adoption made in 1956 can upset the partition of
1944, validly made under the then conditions, and
the gift by Mahadev of properties exclusively set
apart to him and, therefore, alienable by him, could
be retro-actively invalidated by the plaintiff on
the application of the legal fiction of “relation-
back”. It is unlikely that a similar question will
arise hereinafter since Section 4 of the Hindu
Succession Act, 1956 has practically swept off
texts, rules and the like in Hindu Law, which were
part of that law in force immediately before the
commencement of the Act, if provisions have been
made for such matters in the Act. Since on the
husband's death the widow takes an absolute estate,
questions of the type which engage us in this appeal
will be stilled for ever. Of course, we need not
investigate this aspect of the matter as the present
case relates to a pre-statutory adoption. Even
Section 12 of the Hindu Adoptions and Maintenance
Act, 1956, makes it plain that 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.
9. The plaintiff, as the adopted son, for
secular and spiritual purposes continues the line
of the adoptive father and when the widow adopts,
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the doctrine of “relation-back” makes sonship
retroactive from the moment of death of the late
husband. The new entrant is deemed to have been born
on the date of death of the adoptive father.
Supposing there was an undivided family in existence
when the adoptive father died, how far can the legal
fiction of anterior sonship disrupt the doings
between notional birth and actual adoption? Mulla
sums up the result of the rulings thus: (p. 496)
“If, therefore, there was a coparcenary in
existence when the adoptive father died, then
whether it came to an end by the death of the last
surviving coparcener or by subsequent partition
among the remaining members, an adoption validly
made by the widow of the deceased coparcener would
have the effect of divesting the estate in the hands
of the heir to the last surviving coparcener in the
first case and of putting an end to the partition
in the second and enabling the adopted son to claim
a share in the family properties as if they were
still joint.”
11. In this case, there is no dispute about the adoption
or about the validity of the adoption. It is, in fact,
the case of the plaintiff that the first defendant was the
adopted son. On the said basis, the further conclusion is
inevitable that on applying the doctrine of relation back,
it would be deemed that as on the date of the death of
their father, the first defendant was very much notionally
alive and he would become the sole coparcener. It is
indisputable that there can be no vacuum or break in vesting
of title on the death of a person. We must further bear
in mind that this is a case where succession opened up
admittedly prior to the Hindu Succession Act, 1956 coming
into force.
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12. The learned counsel for the plaintiff, no doubt,
relied upon Section -72 of Part-I, Chapter VI-Order of
Succession to Males in the Bombay State in Mulla on Hindu
Law, 23rd Edition which is reproduced below:-
72. Order of succession in cases governed by
Mitakshara- The following is the order of succession
to males among sapindas in the Bombay State in cases
governed by Mitakshara :
(1-6) Son, son's son (whose father is dead) and
son's son's son (whose father and grandfather are both
dead). These inherit simultaneously. Under Act XVIII
of 1937, the widow, the predeceased son's widow, and
the widow of a predeceased son of a predeceased son,
are also recognised as heirs.
xxxxxx
(7) Daughter
xxxxx
In the Bombay State, daughter do not take as joint
tenants with benefit of survivorship, but they take as
tenants-in-common. Further, a daughter in that State
does not take a limited estate in her father's
property, but takes the property absolutely. Thus, if
Hindu governed by the Bombay School dies leaving two
daughters, each daughter takes an absolute interest in
a moiety of her father's estate, and holds it as her
separate property, and on her death her share will pass
to her own heirs as her stridhana.
xxxxx
13. There are other heirs but they are not being referred
to. We must, in the facts of this case, proceed on the
basis that the adopted son (first defendant), being a son
on applying the doctrine of relation back, would exclude
the daughter. This result flows from the statement that
the persons in serial Nos.1 to 6, namely, son, son's son
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(whose father is dead) and son's son's son (whose father
and grandfather are both dead) inherit simultaneously.
14. We would hold that if there is a son, the
daughter would not be entitled to share along with the son.
The daughter, in other words, would not be a legal heir
who would take simultaneously with the son. The example
which, in fact, has been set out and which we have extracted
would only be applicable in a situation where there were
only daughters and no son.
15. It is, undoubtedly, true that in view of the
Hindu Women's Rights to Property Act, 1937 (XVIII of 1937) ,
the widow, inter-alia , is also recognized as an heir. There
was, as on the date when the succession opened, in this
case in the year 1948, the daughter (the appellant) who
would not have any right. The daughter would not be a
coparcener which she, undoubtedly, is under the present
dispensation in view of the sweeping developments which
took place in the matter of succession which have been
ushered in as a result of the Hindu Succession Act and the
changes that have been engrafted therein. The plaintiff
daughter would not be an heir, in view of the notional
existence of the adopted son by virtue of the doctrine of
relation back.
16. As far as the effect of remarriage of the mother
of the plaintiff and the first defendant is concerned,
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again, in view of the fact that in the presence of the son,
the daughter may stand excluded, it would again result in
no right accruing to the plaintiff-daughter as a result of
the remarriage. In other words, the first defendant, as
son, would become the sole owner of the property.
17. Aid is sought to be drawn from the terms of the
compromise entered into between the adopted son (first
defendant) and the step-sisters in a proceeding to which
the plaintiff was admittedly not a party. We are not even
called upon to decide a case that estoppel, as such, would
arise in favour of the plaintiff.
18. In view of the aforesaid discussion, the appellants
have not made out a case for any interference. The appeal
stands dismissed.
No order as to costs.
Pending application(s), if any, stand disposed of.
……………………… ………………………………………J.
[K.M. JOSEPH]
……………………… ………………………………………J.
[HRISHIKESH ROY]
New Delhi;
July 20, 2022.
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