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PETITIONER: SITABAI & ANR.

       Vs.

RESPONDENT: RAM CHANDRA

DATE OF JUDGMENT: 20/08/1969

BENCH: RAMASWAMI, V. BENCH: 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

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retain   their  character  in the  hands  of  the  surviving brother,  as  the widow (the first appellant) of  the  eider 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]

JUDGMENT: 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  eider 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

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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.

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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

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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

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             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

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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:

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(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. J., 1 Sup CI/70---2 10