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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. 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

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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 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.

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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 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

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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