Full Judgment Text
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PETITIONER:
DHARMA SHAMRAO AGALAWE
Vs.
RESPONDENT:
PANDURANG MIRAGU AGALAWE & ORS.
DATE OF JUDGMENT22/02/1988
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
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.
HEADNOTE:
%
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
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surviving coparcener.
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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
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Ors., A.I.R. 1987 S.C. 399, followed.
JUDGMENT:
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
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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.
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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
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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
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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
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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
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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
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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.
1087