Patna High Court
Santosh Kumar Jalan Alias Kanhaya Lal ... vs Chandra Kishore Jalan And Anr. on 11 August, 2000
Equivalent citations: AIR2001PAT125, AIR 2001 PATNA 125, (2003) 1 MARRILJ 149, (2002) 3 RECCIVR 826, (2001) 1 BLJ 142, (2001) 2 CIVLJ 479
JUDGMENT S.N. Jha, J.
1. This Second Appeal by the Defendant 1st Party of Title Suit No. 17 of 1983 of the Court of 5th Subordinate Judge, Munger is directed against the judgment and decree of the 12th Additional District Judge, Munger, upholding the judgment and decree of the trial Court, decreeing the plaintiff's suit. It may be mentioned here that the said suit was tried analogous with Title Suit No. 104 of 1984 instituted by the appellant. While Title Suit No. 17 of 1983 was decreed Title Suit No. 104 of 1984 was dismissed. It may also be mentioned here that the Second Appeal arising out of Title Suit No. 104 of 1984. which was disposed of by a common judgment, being Second Appeal No. 159 of 1993 has been dismissed by a learned Judge of this Court vide judgment reported in 1999 (3) Pat LJR 45. The question of law raised in this appeal being the same as in the other appeal, in the ordinary course this appeal should have been dismissed summarily as being covered by the interparty decision in the other appeal. Another learned Judge of this Court before whom this appeal came up for hearing under Order 41, Rule 11, CPC however referred it to a Division Bench noticing the conflict between the decisions of the Andhra Pradesh High Court and Bombay High Court in Yarlagadda Nayudamma v. Government of Andhra Pradesh, AIR 1981 Andh Pra 19 and Devgonda Raygonda Patil, v. Shamgonda Raygonda Patil, AIR 1992 Bombay 189, respectively, though without doubting the correctness of the decision of this Court in the other appeal so (sic). That is how this appeal came up before us.
2. Title Suit No. 17 of 1983 giving rise to the present appeal was filed by Chandra Kishore Jalan. who is respondent No. 1 in this appeal (to be referred hereinafter as 'the plaintiff), for declaration that the panchanama dated 16-11-1980 cancelling the adoption of defedant 1st party i.e. Santosh Kumar Jalan, appellant herein, by defendant second party Radha Krishna Jalan was illegal, inoperative, null and void and not binding on the parties. The plaintiff further sought declaration that defendant 1st party was member of the joint family of the defendant 2nd party by virtue of the adoption dated 17-2-1966. Title Suit No. 104 of 1984 was instituted by Santosh Kumar Jalan i.e. appellant herein for declaration that there had been previous partition of the suit properties or, alternatively, if his case of previous partition is not accepted, for a decree of partition of his half share in the property which is a house bearing Holding No. 152 standing on Municipal Plot No. 349A at Bekapur in Munger town. i.e.
3. So far as the facts of the case are concerned, for the purpose of second appeal it may suffice to state that the parties i.e. Chandra Kishore Jalan and Santosh Kumar Jalan were full brothers by birth. On 17-2-1966 their father Dwarika Prasad Jalan with the consent of his wife gave the latter in adoption to defendant 2nd party after performing ceremonies in presence of the relatives and friends.
The case of the plaintiff is that by virtue of adoption dated 17-2-1966 defendant 1st party became member of the joint family of his adoptive father and stood divested of his rights and obligations as member of the joint family of his natural father. After death of Dwarika Praaad Jalan in 1968 plaintiff thus alone injherited his estate. Defendant 2nd party had brought up defendant 1st party and got him settled in life as his son. In 1980, however, they fell apart and decided to end the relationship (of adoptive father and adopted son). A panchayati was held and on 16-11-1980 so-called panchanama was prepared to the effect that the adoption dated 17-2-1966 was invalid. The plaintiff in the circumstances filed the suit seeking declaration with respect to the panchanama and status of the defendant 1st party, as indicated above.
Defendant 1st party i.e. appellant herein thereafter filed Title Suit No. 104 of 1984 seeking relief as indicated above. Briefly stated his case is that adoption dated 17-2-1966 was not valid and he never ceased to be member of the family of his natural father. According to him. Dwarika Prasad Jalan i.e. his father had taken loan from Radha Krishna Jalan i.e. defendant 2nd party which he could not repay. He requested him to take defendant 1st party in lieu of the repayment of loan and that is how he came to be associated with defendant 2nd party.
The trial Court held that adoption of the appellant was valid and it could not be revoked, and being adopted son defendant 2nd party cannot claim any share in the suit property. On these findings it dismissed the suit instituted by the defendant 1st party i.e. Title Suit No. 104 of 1984 and decreed the plaintiff's suit i.e. Title Suit No. 17 of 1983. After the appeals preferred against the said judgment were dismissed by the lower appellate Court defendant 1st party came to this Court in Second Appeal No. 158 of 1993 i.e. instant appeal and Second Appeal No. 159 of 1993 (arising out of Title Suit No. 104 of 1984) which already stands dismissed as mentioned at the outset.
4. The only point raised in support of the appellant's case is that being a member of the Hindu Mitakshara coparcenery he had vested right in the suit property which could not be divested by virtue of the provisions of Section 12 (b) of the Hindu Adoptions and Maintenance Act, 1956 (in short 'Adoption Act'). The point was argued before the Courts below as well but the contention was negatived in favour of the plaintiff.
5. Though dispute involves Interpretation of only Clause (h) of Section 12 of the Adoption Act, in order to appreciate its true scope it may be useful to notice the whole of the Section as under :--
12. Effecls of adoption -- 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 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 obligations 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.
6. Section 12 which deals with the effects of adoption provides for severance of relationship with the family of birth of the adopted child and creation of a new relationship, which is the same which he had in his natural family, with the adoptive family. As a matter of fact, by virtue of adoption a child gets transplanted into a new family whereafter he or she is deemed to be member of that family as if he or she were born son or daughter of the adoptive parents having same right which natural son or daughter had. This transformation of rights from one family to the other family, however, is hedged in by three exceptions mentioned as provisos to Section 12. In terms of proviso (a) though the relationship of the adopted child with his or her natural family stands severed and he or she is treated as member of the adoptive family, he or she cannot marry any person to whom he or she could not have married if adoption had not taken place. Proviso (b) lays down that notwithstanding the adoption, if any property had vested in the adopted child before the adoption, subject to obligations if any attaching to the ownership of such property, the adoption would not divest him of that property. Proviso (c) lays down similarly that the property already vested in any person before the adoption shall not be affected and the person concerned shall not be divested of such property by reason of such adoption. It would thus appear that while provisos (a) and (c) create limitation on the rights of the adopted child, proviso (b) protects his rights in any property which had already vested in him before the adoption subject to certain obligations attached to the property notwithstanding the severance of his relationship with his natural family and becoming part of the adoptive family for all the purposes. Thus far there is no dispute. The dispute only is whether the rights of the adopted child in a coparcenery property in existence at the time of adoption is covered under proviso (b).
7. The right of a coparcener in a coparcenery property is undoubtedly a vested right, a right created by birth. However, interpreting the said proviso so as to include interest of the coparcener in the coparcenery property in my opinion would be contrary to the main provision. The object of proviso is to limit the application of the main provision and not to make it redundant. In Sawan Ram v. Mst. Kalawanti, AIR 1967 SC 1761, while dealing with the scope of the main provision the Apex Court observed. (Para 8) "The right, which the child had, to succeed to the property by virtue of being son of his natural father, in the family of his birth, is, thus, clearly to be replaced by similar rights in the adoptive family, and, consequently, he would certainly obtain those rights in the capacity of a member of that family as an adopted son........."
If an adopted child thus is to inherit the estate of adoptive parents, can he at the same time inherit his share in the estate of his natural parents after adoption? it would completely nullify the main provision of Section 12, such interpretation cannot be accepted.
8. The main provision of Section 12creales,in fact recognises, a legal fiction by which the adopted child is deemed to be the son or daughter of the adoptive parents and member of the new family of his adoptive parents. His previous relationship with the family of birth having come to an end, the interest which the adopted child had acquired by birth cannot continue after the adoption. Proviso (b) interjects to protect his rights in any property which stood vested before the adoption. But it does not mean that the adoptee will continue to have same interest in the estate of the natural family which he had acquired by birth even though he is legally deemed to be member of the new family. That could not be the intention of the Legislature. The Legislature is supposed to be aware of the principles of Hindu Mitakshara Law. If the Legislature had intended to protect even the coparcenery interest of the adopted child, perhaps, proviso (b) would have been couched in different language. As it is, the proviso protects only the property which had vested in the adopted child before the adoption.
9. What seems to create doubt, which in fact is the foundation of the appellant's case, is use of the word Vested' in the proviso. It is however noteworthy that the word "vested" is part of the clause "any property which vested". The question is whether the right of a coparcener in the coparcenery property vests in him any right in "any property". It is well settled that though a coparcener gets right by birth in the coparcenery property the said right or interest is liable to fluctuation increasing by death of a coparcener and decreasing by birth of another coparcener. A coparcener has right to partition of the coparcenery property, he can even bring about separation in status by unilateral declaration of his intention to separate from the family, and enjoy his share of the property after partition. But it is only after such partition that property Vests' in him. Till partition takes place he has only a right to joint possession and enjoyment of the property. There is community of interest between all members of the joint family and every coparcener is entitled to joint possession and enjoyment of the coparcenery property. The ownership of the coparcenery properly vests in the whole body of the coparceners and not in a member of the family. While the family remains undivided, one cannot predicate the extent of his share in the Joint and undivided family. Indeed, as stated above he has fluctuating interest in the property liable to being increased or decreased by deaths and births in the family. These are the fundamentals of the Mitakshara Law of Hindu Coparcenary which are not open to any doubt or debate. In these premises, whether it can be said that "any property" had vested in the coparcener so as to attract Proviso (b) to Section 12. The answer in my opinion must be in the negative. What is vested in a coparcener before adoption, is his right of Joint possession and enjoyment of the coparcenery property, I hardly need point out the distinction between the right to joint possession and enjoyment and the right to exclusive possession and enjoyment of a particular property. According to me, what is saved under Proviso (b) is a property which had already vested in the adoptee before adoption by, say, inheritance, partition, bequeath, transfer etc., which alone can be said to vest in him, to the exclusion of others. The vesting of that property is not affected by adoption.
10. The Bombay High Court in Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bombay 189, has taken the same view. As observed by the learned Judge in the aforesaid case, "in the context of Section 12, Proviso (b), 'vested property' means where indefeasible right is created i.e. on no contingency can be defeated; in other words, where full ownership is conferred in respect of a particular property, but that is not the position in the case of coparcenary property. The coparcenery property is not owned by a coparcener and never any particular property. All the properties vest in the joint family and are held by it."
11. The decision of the Andhra Pradesh High Copurt in Yarlagadda Nayudamma v. Government of Andhra Pradesh, AIR 1981 Andh Pra 19, which is sheet anchor of the appellant's case does lend support to his case. The learned Judges of the Andhra Pradesh High Court relied on S.V. Gupte's 'Hindu Law on Adoption and Maintenance, Minority and Guardianship' and Mayne's 'Hindu Law and Usage' and concluded "From the foregoing what becomes apparent is that notwithstanding the adoption, a person in Mitakshare family has got a vested right even in the undivided property of his natural family which on adoption he continues to have a right over it."
12. I regret my inability to accept this as the correct legal position. I have already stated above that though a coparcener has vested right of joint possession and enjoyment of the estate of his natural family. Proviso (b) refers to "any property which vested". As there is no vesting of "any property" and there is vesting of only community of interest with other coparceners, the proviso cannot be extended to cover such interest.
13. In Vasant v. Dattu, AIR 1987 SC 398, the Apex Court had occasion to consider the scope of Proviso (c) to Section 12 of the Adoption Act. If I may say so, in a sense, Proviso (c) contains provision converse to Proviso (b). While Proviso (b) protects the right of the adopted child in the property vested in him before adoption, Proviso (c) protects the right of any other person in whom any estate came to vest before adoption. It lays down that if any estate had already vested in any person before adoption, the adoption would not divest him of the same. The brief facts of the aforesaid case were that the plaintiff's claiming to be adopted sons of two widows had filed suit for partition and separate possession of their shares. One of the grounds on which the contesting defendants resisted their claim was that after the death of the husbands of the widows the properties had devolved on them i.e. contesting defendants by survivorship and the plaintiff's were not entitled to claim any share and Section 12 of the Adoption Act barred the plaintiff's from claiming any share in the properties. While rejecting the plea of the defendants the Apex Court observed that the property, no doubt, passes by survivorship, but there is no question of vesting or divesting of the property within the meaning of Section 12 of the Act. Interpreting Section 12 to include cases of such devolution by survivorship on the death of a member of the joint family would mean denying the effect of adoption. It would be useful to quote relevant observations from the judgments as under (At P. 399 of AIR) :--
"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.
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 Section 12 of the Act. To interpret Section 12 to include cases of devolution by survivorship on the death of a memeber 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."
14. Though the decision was rendered in the context of proviso (c), it provides sufficient light to the question involved in the present case. It is clear that Proviso have to be interpreted in the manner in which the very effect of adoption is not obliterated. As the Supreme Court has clarified adoption and birth stand on the same footing as regards legal consequences. Both result in decreasing the shares of the rest of the members of the joint family. Likewise, on the same analogy, adoption of a coparcener, like death, would result in increasing the shares of the remaining coparceners of the joint family of which he was a member before the adoption. How, then, it can be said that his interest as a coparcener in the joint family of his natural parents remains intact?
15. Counsel for the appellant referred to the passages from Salmond's jurisprudence and Mayne's 'Hindu law and Usage'. The former has absolutely no relevance to the issue involved. The latter does support the appellant's contention, as stated above. But for the reasons mentioned, it is difficult to agree with him. It would not be out of place to mention that the conclusion of Mulla (Principles of Hindu Law), another celebrated author on the subject, are different.
16. Adverting to the present case, in the light of the above discussions it is clear that by reason of the adoption dated 17-2-1966, which has been held to be valid by both the Courts below, which finding is not under challenge before this Court (and could not. be, on the death of the father the plaintiff being the sole survivor coparcener, alone was entitled to inherit his property and the defendant 1st party could not claim any share therein. His case that the adoption was invalid having been disbelieved and he being a member of the joint family of defendant 2nd party and proviso (b) to Section 12 not being applicable, he cannot claim any share in the suit property. The judgment and decree of the Court below therefore does not suffer from any error of law.
17. In the result I do not find any merit in this appeal which is accordingly dismissed with cost.
B.N. Singh "Neelam", J.
18. I agree.