04 March 1970
Supreme Court


Case number: Appeal (civil) 139 of 1967






DATE OF JUDGMENT: 04/03/1970


CITATION:  1970 AIR 1730            1970 SCR  (3) 894  1970 SCC  (1) 570  CITATOR INFO :  HO         1974 SC 878  (14)  RF         1991 SC1654  (27)

ACT: Hindu Law-Whether full ownership acquired by widow under  s. 14(1)  of Hindu Succession Act defeasible by  adoption  made after the enactment.

HEADNOTE: A  Hindu died leaving behind his widow and  daughters.   The properties left behind by the deceased were inherited by the widow,  and  they  were in her  possession  when  the  Hindu Succession  Act,  1956 came into force.  Subsequent  to  the enforcement  of  the Act, she adopted a son  and  thereafter settled a part of the property on one of the daughters.  The adopted  son challenged the validity of the settlement  deed contending  that the adoption must be deemed to relate  back to  the death of the widow’s husband and therefore  she  was incompetent to make the impugned alienation.  Rejecting  the contention this Court; HELD :-The rights conferred on a Hindu female under s. 14(1) of  the  Act are not restricted of limited by  any  rule  of Hindu  law.   The  section plainly says  that  the  property possessed  by a Hindu female on the date the Act  came  into force  whether acquired before or after the commencement  of the  Act  shall be held by her as full owner  thereof.   The provision  makes a clear departure from the Hindu law  texts or  rules.   Those  texts  or  rules  cannot  be  used   for circumventing the plain intendment of the provision. [897 F- G] The  fiction of relation back in the case of adoption  under Hindu  law  is based on Hindu law texts or rules or  at  any rate it is based on interpretation of Hindu law.  Therefore, by virtue of s. 4 of the Act that rule ceased to have effect from  the date the Act came into force with respect  to  any matter for which provision is made under the Act. [896, F-G] Yamunabai and Ant v. Ram Maharaj Shreedhar Maharaj and  anr. A.I.R. 1960 Bom. 463; approved. Shrinivas Krishanarao Kango v. Narayan Devji Kango and  ors. [1955] 1 S.C.R. p. 1; Krishnamurthi Vasudeorao Deshpande  v.



Dhruwaraj, [1962] 2 S.C.R. 813, referred to. Sukhram  and anr. v. Gauri Shankar and anr. [1968] 1  S.C.R. 476 referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 139 of 1967. Appeal from the judgment and Decree dated September 3,  1963 of the Madras High Court in Second Appeal No. 1021 of 1960. B.   Datta, for the appellant. M.   Srinivasan, K. N. Balasubramanian and Lily Thomas, for respondent No. 1. 8 9 5 The Judgment of the Court was delivered by Hegde,  J. The question for decision in this appeal by  cer- tificate is whether the full ownership conferred on a  Hindu female  under  s. 14(1) of the Hindu Succession Act  (to  be hereinafter  referred  to as the Act) is defeasible  by  the adoption  made by her to her deceased husband after the  Act came into force. The facts relevant for the purpose of deciding that question of  law may now be stated.  One Somasundra Udayar  of  Poon- gavur  village  in Tanjavoor District. died  prior  to  1937 leaving  behind him his widow Sellathachi and two  daughters Kappaimal  and  Punithavalli  Ammal.   The  properties  left behind by the deceased were inherited by his widow and  they were in her possession when the Act came into force on  June 17,  1956.   By virtue. of s. 14(1) of the  Act  Sellathachi became  the  full owner of the properties inherited  by  her from  her  husband.   On  July 13,  1956,  she  adopted  the plaintiff-1st respondent in this appeal.  Thereafter on June 19, 1957 she settled 9 acres 16 cents of land and half share in a house inherited by her from her husband on her daughter Punithavalli  Ammal,  the  appellant in  this  appeal.   The validity of this settlement deed was challenged by means  of a  suit  by  the adopted son even during the  life  time  of Sellathachi.   The  settlor  who was impleaded  as  the  1st defendant  to the action died soon after the institution  of the suit.  Various contentions were raised in defence but it is  unnecessary to go into them.  The trial court  dismissed the suit on the ground that in view of s. 14(1)  Sellathachi was  the full owner of the properties inherited by her  from her  husband  and hence the adopted son  cannot  impugn  the alienation made by her.  This decision was upheld in  appeal but in second appeal. a division bench of the High Court  of Madras  reversed that decision holding that the adoption  of the  plaintiff must be deemed to relate back to the date  of the  death of Somasundara Udayar and  therefore  Sellathachi was  incompetent  to  make  the-impugned  alienation.   This correctness of this_finding is in issue in this appeal. According  to Hindu law texts as interpreted by  courts,  on adoption by a Hindu widow, the adopted son acquires all  the rights of an aurasa son and those rights relate back to  the date  of  the  death of the  adoptive  father-see  Shrinivas Krishnarao Kango v. Narayan Devji Kango and ors. (1).  Hence the  estate  held by a widow was a defeasible  estate.   The same  is the case with a person possessing title  defeasible on  adoption; not only his title but also the title  of  all persons claiming under him will be (1)  [1955] 1 S.C.R. P. 1. 8 96 extinguished   on  adoption-see   Krishnamurthi   Vasudeorao Deshpande  v.  Dhruwaraf  (1) - In fact  under  the  Benaras School  of  Mitakshra rule where a male  coparcener  is  not



entitled to alienate, even for value his undivided  interest in the coparcenary property without the consent of the other coparceners,  the  alienation effected by a  sole  surviving male  coparcener can be successfully challenged by a  person adopted  subsequent  to  the  alienation.   The  fiction  of relation  back  has  been given full effect  by  courts  and consequences  spelled out as if the fiction is a fact.   The adopted son is deemed for all practical purposes, subject to some minor exceptions, to have born as an aurasa son on  the date  his  adoptive  father died.  Admittedly  but  for  the relevant  provisions in the Act the settlement in favour  of the appellant could have afforded no basis for resisting the claim of the adopted son.  Therefore we have to see  whether the  provisions of the Act have effected any change  in  the law as regards the fiction referred to.  Section 4(1) of the Act provides               "Save as otherwise expressly provided in  this               Act-               (a)   any  text,  rule  or  interpretation  of               Hindu  Law or any custom or usage as  part  of               that  law  in force,  immediately  before  the               commencement  of this Act shall cease to  have               effect  with respect to any matter  for  which               provision is made in this Act;               (b)   any  ’other  law  in  force  immediately               before the               commencement of this Act shall cease to  apply               to               Hindus  in so far as it inconsistent with  any               of the               provisions contained in this Act." It  is undisputed that the fiction of relation back  in  the case of adoption under Hindu law is based on Hindu law texts or  rule  or at any rate it is based  on  interpretation  of Hindu  law.  Therefore that rule ceased to have effect  from the date the Act came into force with respect to any  matter for which provision is made under the Act.  Hence we have to see whether the matter dealt with under s. 14(1) impinges on the  rule of adoption relating back to the date of death  of the adoptive father. Adoption  is a mode of affiliation which confers a right  of inheritance under Hindu law.  Under that law a widow in  the absence of any preferential heir succeeded to the estate  of her  deceased husband but she took only an estate  known  as widow’s  estate.  After her death the Property  devolved  on the nearest (1)  [1962] 2 S.C.R. 813. 89 7 reversioner  of her husband.  Section 14(1) of the Act  made an  important  departure  in  that  respect.   That  section provides               "Any  property  possessed by  a  female  Hindu               whether   acquired   before   or   after   the               commencement of this Act, shall be held by her               as  full  owner thereof and not as  a  limited               owner." The  explanation  to the section is not  necessary  for  our present   purpose.   It  was  conceded  at  the   bar   that Sellathachi was in possession of the property in dispute  on the  date  the  Act  came into  force.   By  virtue  of  the aforesaid  provision,  she  became the ’full  owner  of  the property  on that date From a plain reading of s. 14(1),  it is clear that the estate taken by a Hindu female under  that provision is an absolute one and is not defeasible under any circumstance.  The ambit of that estate cannot be cut by any



text, rule or interpretation of Hindu law.  The  presumption of continuity of law is only a rule of interpretation.  That presumption is inoperative if the language of the -concerned statutory  provision is plain and unambiguous.  The  fiction mentioned  earlier is abrogated to the extent  it  conflicts with  the rights conferred on a Hindu female under s.  14(1) of  the  Act.   In Sukhram and anr.  v.  Gauri  Shankar  and anr.(1) this Court held that though a male member of a Hindu family  governed  by  the Benaras School  of  Hindu  law  is subject  to restrictions qua alienation of his  interest  in the joint family property but a widow acquiring an  interest -in  that property by virtue of Hindu Succession Act is  not subject to any such restrictions.  This Court held in S.  S. Munna  Lal v. S. S. Rajkumar and ors. (2) that by virtue  of s. 4 of the Act the legislature abrogated the rules of Hindu law  on all matters in respect of which there is an  express provision  in the Act.  In our opinion the rights  conferred on  a  Hindu  female  under s. 14(1)  of  the  Act  are  not restricted or limited by any rule of Hindu law.  The section plainly  says that the property possessed by a Hindu  female on the date the Act came into force whether acquired  before or after the commencement of the Act shall be held by her as full owner thereof.  That provision makes a clear  departure from  the  Hindu law texts or rules.  Those texts  or  rules cannot be used for circumventing the plain intendment of the provision. In our judgment the learned judges of the Madras High  Court were not right in limiting the scope of s. 14:(1) by  taking the  aid  of  the fiction mentioned earlier.   That  in  our opinion  is  wholly  impermissible.   On  the  point  -under consideration the (1) [1968] 1 S.C.R.476. (2) [1962] 3 Supp.  S.C.R. 418. 8 98 decision  of  the Bombay High Court in  Yamunabai  and  anr. v.Ram  Maharaj Shreedhar Maharaj and anr. (1) lays down  the law correctly. In the result we allow this appeal and set aside the  decree and judgment of the High Court and restore that of the trial court but in the circumstances of the case we make no order as  to  costs.  The 1st respondent will pay  the  Court  fee payable by the appellant in this appeal. Appeal allowed. Y.P. (1) A.I.R. 1960 Bom. 463. 8 99