Karnataka High Court
Babu Ningappa Yalgundri And Ors. vs Arunkumar Alias Basappa And Ors. on 12 October, 1987
Equivalent citations: AIR1988KANT139, ILR1987KAR3590
JUDGMENT Chandrakantaraj Urs, J.
1. This appeal is by defendants 1, 2, 4, 5 and 6 who are appellants 1 to 5 this Court. They have suffered a Judgment and Decree in O.S.No. 41/1966 on the file of the Principal Civil Judge, Belgaum. The suit was filed by the plaintiff who is respondent - 1 in this appeal seeking partition of the suit joint family properties. The plaintiff's claim was allowed with costs decreeing that the plaintiff respondent had half share in Schedules A, B, F and G properties and 3/16 th share in the lands mentioned in Schedules C and D as for mesne profits from the date of filing of the suit till date of delivery of possession of his share in the suit properties. The plaintiff was directed to file a separate application for ascertaining the mesne profits.
2. In the course of this judgment, we will refer to the parties by the ranks assigned to them in the trial Court for convenience.
3. The facts leading to this appeal may be stated and they are set out in brief hereafter. The plaintiff alleged that one Rayappa was the preposit us of the said joint family. Rayappa had two sons, namely, Ningappa and Satteppa. Satteppa pre-deceased Rayappa leaving behind him his widow Chandrawwa and, a (laughter Laxinibai, Rayappa died in the year 1937. After Rayappa's death his sole surviving son Ningappa came in possession of the joint family properties as manager. His name was entered in the Record of Rights and Katha. Ningappa died on IG-11-1956 leaving behind him his widow Nemakka (defedant-2), a son, Babu (defendant-l) and three daughters namely, Akkawwa (dcferidant-3), Ratnawwa (defendant-4) and Ammawwa (Defendant-5) and a grandson-Bharatesh (Deiendant-6) the son of a pre-deceased daughter Champakka. The plaintiff further averred that the entire properties mentioned in Schedules A, B, E, F and 6/16th share in the properties mentioned in Schedules C and D to the plaint are the ancestral properties of the joint family consisting of the plaintiff and defendants I and 2. He further averred that all the properties except Schedule-E property are in possession of defendant-I as the manager of the joint family. The property mentioned in Schedule-G, though purchased in the name of defendant-2 is in fact property purchased with joint family funds and therefore treated as the joint family property. That property also is in the possession, of defendant-1 as the manager of the joint family. The property shown in Schedule-E was given to Chandrawwa, widow of Sattepp4 for her maintenance which is now in the possession of defendant-7 who is the lessee of Chandrawwa.
4. It is the case of the plaintiff that Chandrawwa widow of Sattappa the predeceased son of took the plaintiff in adoption on 15-7-1965 after performing all the necessary religious ceremonies, giving and taking etc., according to the custom prevailing in Jain community to which parties to the suit belong. On the same adoption deed was executed by Chandrawwa and was got registered. Chandrawwa died on 1-8-1965 i.e., about a fortnight after the adoption. The plaintiff asserted that by Virtue of the adoption he became a coparcener in the joint family of defendants 1 and 2 and therefore was entitled to claim half share in the joint family properties described in the Schedules. He also asserted that he is in constructive possession of the suit properties as the member of the joint family by virtue of his adoption. He further asserted that defendant-l Babu Ningappa was not properly managing the properties and has disposed of considerable portions of the moveable properties without any legal necessity and without benefit to the joint family arid therefore the plaintiff is constrained to file the suit through his genitive father or natural father as the next friend for partition as he was only 17 years old on the date of suit.
5. The defendants resisted the suit. Defendants 1, 2 and 4 in their written statement contended that S. No. 6/4 of Murgundi village described in Schedule-G is not the joint family property. They asserted that the joint family had no sufficient nucleus. It had no sufficient fund or income to purchase the said property. It is asserted in the written statement that the said property was the self acquired property of defendant-2, she having purchased it from her own funds. She claimed that to be in her possession since 11-4-1965. It was asserted that defendant-2 is not a member of the joint family which came to an end on the date of death of Ningappa in the year 1956 and therefore the plaintiff had no right to a share in the said S. No. 6/4 of Murgundi village. It is further asserted in the written statement that the joint family was extinguished and the shares of defendants 1 and 2 were determined arid they have been in possession of the suit properties excepting S.No. 6/4 of Murundi village as tenants in common having distinct share; and not as members of the joint family, It is asserted that defendant-I was never the manager of the joint family. Defendants-1. 2 and 4 denied the adoption of plaintiff Chandrawwa. They contended that there was no giving and taking Ceremony and other necessary ceremonies to be performed at the time to adoption. They also denied the execution and registration of the adoption deed dated 1-7-1965. They asserted that Chandrawwa lost her husband in the year 1914. She never had any intention to adopt any one and therefore it was highly improbable that she would entertain the idea or adopting the plaintiff after the lapse of half a century from the time of the death of her husband. The adoption deed had been obtained fraudulently with the intention of swallowing the property of defendant-1. Chandrawwa was suffering from cancer since a long time prior to her death and at the time of adoption she was not in a sound state of mind and she was not i n a position to understand the nature and effect of the alleged adoption. The natural parents of the plaintiff have fraudulently brought up the document of adoption taking Chandrawwa to Athani without intimating her about the alleged adoption deed. They asserted that the plaintiff is not a coparcener. Satteppa son of Rayappa died in the year 1914. Rayappa himself died in 9-1-1937. Rayappa's widow pre-deceased his surviving son. Ningappa died on 10-11-1956 after the commencement of the Hindu Succession Act. Satteppa, Rayappa and Ningappa having died when the family was joint, governed by Mitakshara School, Nirgappa at the time of his death had 1/3rd interest in the Coparcenaries properties and the same had devolved upon his heirs by succession. On his death, the coparcenaries came to an end on account of the notional petition affected and severance of joint status of the family; the properties ceased to be the coparcenaries properties and the members ceased to be the members of the joint Hindu family. 1 and 2 became entitled to 1/3rd share each in, the suit schedule properties other than' S. No. 6/4. They became full arid absolute owners of their respective 1/3rd share and their shares had vested in them as their separate property even before the time of the alleged adoption of the plaintiff. The defendants contended that the coparcenaries once extinguished could not be revived by adoption. His right, if any, was prospective from the date of adoption and therefore the plaintiff could not divest defendant-I or defendant-2 of properties, which had vested in them before the alleged, adoption. Chandrawwa was only entitled to maintenance as her husband died in the year 1914 before the Hindu Women's Right to Maintenance Act came into force. She had no interest in the joint family properties. As such the plaintiff was not entitled to any share in the suit properties. Chandrawa obtained a decree for maintenance against her brother-in-law Ningappa father of defendant-I as well as her father-in-law Rayappa. As a result of the award passed in the said suit, she was given right of residence in a portion of the suit house at Mahishwadgi and was put in possession of S. No. 192 of the same village described in Schedule-F to the plaint. The decree passed was limited and was only given in lieu of her maintenance, it only created life estate in her and it was to revert to defendant-1 and his father according to the terms of the decree. The defendants, however, contended that the land in S. No. 192 was wrongly in the possession of defendant-7 who is not a tenant of the land. Chandrawwa gave a false wardi to delay and defeat the reversionary rights of def endant-1 and thus brought about a false tenancy in favor of defendant-7 who is the grandson through her daughter. Therefore, it was contended that defendant-7 is only a trespasser and has no interest in the land. They disputed the valuation of the suit in the Court below. The defendants prayed for dismissal of the suit.
6. On such pleadings, as many as 15 issues were framed as well as an additional issue and they are as follows:
(1) Whether the plaintiff proves that after the death of Rayappa, his son Ningappa became the sole surviving coparcener and the manager of the joint Hindu family?
(2) Whether the plaintiff proves that the properties set out in Schedule-A, B, E and F and 6/16th share in the properties in Schedules C and D are the ancestral properties of the joint Hindu family consisting of the plaintiff and defendants 1 and 2?
(3a) Whether the property in Schedule-C was purchased with the joint family fund?
(3b) If so, whether the plaintiff proves that it is a joint family property?
OR (3c) Whether the second defendant proves that it is her self-acquired property?
(4a) Whether the plaintiff proves that after the death of Ningappa, Ist defendant Babu came to be in possession of t1fe alleged joint family properties as manager?
OR (4b) Whether the defendants 1,2 and 4 prove that the joint family status was extinguished after the death of Ningappa?
5. Whether the plaintiff proves his adoption by Chandrawwa widow of Satteppa, as alleged in Para (4) of the plaint?
6. Whether the plaintiff proves the adoption deed dated 15-7-1965 is legal and valid?
7. Whether the defendants 1, 2and 4 prove that the adoption deed dated 15-07-1965 is a fraudulent and false document?
8. Whether the 7th defendant is a lessee of S No: 192 of Mahishwad (Schedule-E in the plaint) as alleged by plaintiff?
9. Whether the plaintiff is entitled to one half in the properties mentioned in Schedules A. B, F and G of the plaint?
10. Whether the plaintiff is entitled to3/16th share in the lands shown in Schedules C and D of the plaint?
11. Whether the plaintiff is entitled to symbolical possession of one-half share in t he land shown in plaint Schedule-E?
12. Whether defendants 1 and 2 have become entitled to one-third share each in the properties concerned as alleged in Para (8) of their written statement, as class I heirs of deceased Ningappa under the Hindu Succession Act, 1956?
13. Whether the plaint is property valued for purpose of Court-fee?
14. Whether the prayer for partition would offend the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947?
15. Whether the plaint has to be rejected under S. 132 of the Mysore Land Revenue Act, 1964 for non-production of Record of Rights extracts?
Additional issue:
16. Whether suit is not maintainable without seeking declaration in regard to the factum and validity of the plaintiffs alleged adoption by Chandrawwa?
7. On the above issues, parties went to trial. The plaintiff examined six witnesses including his genitive or natural father and got several documents marked. The oral evidence was necessarily tendered to discharge the burden of proof cast on the plaintiff in regard to the validity of ad option in the light of the specific stand taken by the contesting defendants in their written statement. The defendants who contested also led evidence both par6le (oral) and documentary supporting their case. After analyzing and discussing the evidence, the trial Court has decreed the suit as prayed for declaring the plaintiff to be entitled to half share in the Schedules A, F and G properties and 3/16th share in the lands mentioned in Schedules C and D together with mesne profits from the date till date of delivery of possession of his share in the suit properties.
8. Before us, Mr. N. A. Mandgi, leaned Counsel appearing for the contesting defendants, has contended as follows:
(1) That unless a male Hindu is a de facto adoptive father or law of adoption invent, a fictitious adoptive father such male cannot become a father of a child by adoption and similarly unless a female Hindu is a de facto adoptive mother or law of adoption invents a fictitious adoptive mother, she can never become an adoptive mother.
(2) That from fly of adoption is with reference to the adoptive parents who are qualified to adopt under Ss. 7 and 8 of the Hindu Adoptions and Maintenance Act, 1956, (hereinafter referred to as the Act).
(3) That the adoptive family means the family of blood or consanguinity of the adoptive father or mother.
(4) That interest of the coparcener including a sole surviving coparcener cannot be divested by a n adoption after the coming into force of the Act.
9. We have noticed the above contentions in the very language, which the learned Counsel employed while making his submissions. But they are at variance in language with the written propositions the learned Counsel had submitted. We have therefore understood the oral submissions in the light of the written propositions though first of the submissions extracted above does not make sense.
10. He has drawn our attention to several decisions, to which we will advert to in the course of this judgment, apparently, support of the contentions advanced for the, appellants. We must, however, notice that in advancing the above contentions he has not disputed the finding of facts recorded by the trial Court. For appellants, the case in this Court is rested entirely on the propositions of law and according to Mr. Mandgi, the effect that follows from the provisions of the Act and the various decisions.
11. He first drew our attention to the case of Sivagami Achi v. Somasundaram Chettiar, AIR 1956 Mad 323. In the said case, a Bench of five Judges after considering several earlier decision of that High Court as some Decisions of the Privy Council and the Supreme Court of India ruled that the adoption is admittedly not to the wife but to the husband and whether tile husband is alive, it can take effect only from the date of adoption and it cannot be said that it becomes valid from the date of his wife's death. It was held that' an adoption by a widow of a son should be deemed to have come into existence on the date of the death of the husband. Referring to the texts the Full Bench held that the text did not contemplate a deceased wife as a receiving mother either literally or by fiction and the expression Prathigraheethri ya matha in S. 6 of the placitum 50 of the Dattak Mimamsa could refer only to a living wife. On the facts of that case, they proceeded to hold that it was not open to a widower whose two wives had already died to adopt a boy and nominate or designate the deceased second wife as the adoptive mother and it further held that such an adopted son cannot divest the heirs of his adoptive mother who had already succeeded to the estate before the adoption took place.
12. We do not see any starting departure from the customary or statutory law in the propositions laid down by the Full Bench. No doubt, in the course of the judgment, their Lordships, did observe that the cardinal Principle to be observed was that neither Dattaka Mirnamsa nor Dattaka Chandrika contemplated laying down rules of inheritance. We find from the facts of Sivakami Achi's case nothing useful to favour the appellants. There, the proposition was solely to advance the contention that an adoption by a widower by fiction createsfor the adopted son an adoptive mother who had died before the adoption. The full thrust of the argument in the said case was to seek inheritance to the estate of a female Hindu by adoption made by her husband who survived such female Hindu. Wedonotnotice anything useful to assist us with reference to the facts of this case particularly the propositions or contentions advanced for the appellants. Here the adoptioft is by a widow of a deceased Mitakshara coparcener. It cannot be disputed even on the classic exposition of the customary Hindu law that when a widow makes an adoption, she makes that adoption for the deceased husband and not for herself.
13. In fact, Mr. Mandgi, has strenuously contended that this position in customary Hindu law has stood altered on account of the enactment of the Act. He has specially drawn our attention to S. 4 of the Act which in unequivocal terms states that all texts, rules or interpretations of Hindu law or customs or usage as parts of such laws in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act and such laws cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. Therefore, it is stated for the appellants that by virtue of S. 8 of the Act, a female Hindu is conferred statutory right to make an adoption and as such when she makes the adoption, she makes it for herself and not for her husband and in that sense adoption made by Chandrawwa of plaintiff in the instant case should be considered an adoption made by herself for herself and not an adoption made for her husband. That way, it is argued, reading Ss. 4 and 8 of the Act together leads to the inevitable conclusions that adoption of the plaintiff by Chandrawwa well after the coming into force of the Act is an adoption made by a female Hindu and should be considered an adoption made for herself and not for the husband's family and therefore question of treating such an adopted son as the coparcener in the family of the deceased husband would be contrary to the express provisions of the Act. This argument is advanced in support of the first of the contentions, which we have extracted in the language of the Counsel earlier. Unfortunately, this view does not find support in the judicial decisions rendered after the coming into force of the Act.
14. One cannot quarrel with the proposition that the Act makes for reaching changes in the customary Hindu law in so far as it relates to adoption. The effect of S. 8 of the Act is to give female Hindu the right to adopt even if she is not married, even if she is divorced or the marriage has been otherwise dissolved or who is a widow and who has not renounced the world or who has not been declared by a Court of competent jurisdiction to be of unsound mind and if such fernale is not a minor. The effect is'that by adoption a Hindu female may alter the course of succession that would have followed in accordance with the provision of the Hindu Succession Act if she died intestate in regard to what constitutes her own absolute estate. The section must be read not in terms of a widow who has an interest in the properties of a joint Hindu family under the customary law, but with reference to the rights of a female Hindu dehors the Mitkshara joint Hindu family system, who may pass on her absolute estate, to her adopted child. Therefore, we are satisfied that prima facie contention advanced with reference to Ss. 4 and 8 of the Act, is not of any help to the appellants.
15. The trial Court essentially placed reliance on the decisions of the Supreme Court. In the case of Smt, Sitabai v. Ramachandru, to come to the conclusion that adoption made by Chandrawwa of the plaintiff dated back to a time immediately before the death of her husband and therefore the plaintiff would become a member of the adoptive family of the deceased coparcener and as such entitled to a share. We will make a further reference to this decision later in the course of this judgment. It hits been now referred to for the limited purpose of noticing the argument of Mr.Mandgi in further support of his contention that the adoption was so made by Chandrawwa in 1965 in exercise of her right under S. 8 of the Act and therefore question of doctrine of relating back to the date of her husband's death would not arise. For that he placed reliance on thedecisionof the Supreme Court in the case of Punithavalli Ammal v. Rarnafingam, . In thatcase, the Supreme Court expressly overruled the decision, of the Division Bench of the Madras High Court which had held oncertain facts that an adoption made in July, 1956 by a Hindu female widow of Mitakshara school would date back to a date immediately before the death of her husband and therefore any disposition of property by such widow in favor of a daughter would be bad as against the claims of the adopted son as the disposition took place after that son had become the coparcener of the joint Hindu family of her deceased husband. The facts of that case were as follows. The sole surviving coparcener died prior to 1937 leaving behind him his widow. The widow had two daughters. One of them was Punithavalli Ammal. The widow inherited the property of her husband and was in possession of the same when the Hindu Succession Act, 1956 came into force. By virtue of S. 14(1) of the Act, her limited estate became a full and absolute estate and she became the full owner of the properties. It was thereafter that on 13-7-1956. She adopted Ramalingam Approximately a year after the adoption, 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 settlement deed was challenged by the adopted son Ramalingam. The trial Court dismissed the suit holding that the widow had become the full owner under S. 14(1) of the Hindu Succession Act 1956 and therefore the deed of settlement in favor of her daughter Punithavalli Ammal was valid and the adopted Son could not question the same. On appeal, the High Court of Madras took a different view holding that since the adoption dated back to the time of the death of the husband of the widow, he would be the own a of the property. In reversing the view of the Madras High Court, the Supreme Court did no more than lay emphasis on the effect of S. 14(1) of the Hindu Succession Act. If S. 14(1) of the Hindu Succession Act was not there then the conclusion of the Madras High Court on appeal would have been correct and in accordance with the customary Hindu law, as well as the Act. The adopted son would have become the owner of the, property of her deceased husband as the widow would only be a limited owner under, customary Hindu law and after adoption the son would be the sole surviving coparcener. Even before the adoption took place in 1956 the coparcenaries property had vested in the widow as the absolute estate of the widow after the coming into force of the Hindu Succession Act in terms of S. 1411 of the Act. Therefore, the rights conferred by S. 14(1) of the Hindu Succession Act on a female Hindu could not be defeated by any rule or principle of succession or inheritance under the customary Hindu law. In that sense, the ruling of the Supreme Court on the question of the doctrine of relating back in Punithavalli Ammal's case would not be of any assistance to the appellants here.
16. No doubt, it has been contended that on the death of Ningappa in 1955 the property had vested absolutely in his widow and his son Babu defendant-I and therefore adoption by Chandrawwa in 1965 did not affect that vesting. We will deal with, that a little later. But the question is whether at all the decision in Punithavalli Ammal's case , should be read as laying down the proposition of law that there is no question of the adoption relating back to a date immediately before the death of the deceased husband, a coparcener in a Mitakshara family, when the adoption is made by his widow later. Our answer would be an emphatic No. What the Supreme Court was concerned in that case was the effect of S. 14(1) of the Hindu Succession Act and the full effect being given to the right conferred by that section on the Hindu female. Once by operation of law the property had vested in the widow, she was free to make disposition of those properties in a particular manner, which would certainly affect the customary Hindu law as that was the Legislative intent. The whole exercise of conferment of right on the female Hindu under S. 14(1) of the Hindu Succession Act was itself a departure from the customary law and therefore the conclusion of the Supreme Court that the interpretation put by the Madras High Court was erroneous.
17. In each of the enactments that constituted the Hindu Code now, provision corresponding to S. 4 of the Act is made and therefore contents of each of the enactments must be construed harmoniously to avoid repugnancy and conflict. As pointed out by us earlier right conferred on the female Hindu under S. 8 of the Act must be so read as to confine it to such female's own estate in the matter of succession and not to affect the structure of the Mitakshara joint Hindu family.
18. The submission which we have extracted earlier in the language of the learned Counsel for the appellants by themselves do not convey much to us. We have understood them only in the light of the arguments submitted by Mr. Mandgi, the, learned Counsel.
19. He was unable to point out to us how the Court below erred when it did no more than follow what the Supreme Court had laid down in the case of Govind Hanumantha Rao Desaiv. Nagappa Alias Narahari Laxman Rao Deshpande, . The facts of that case are very similar to the facts of the case, which is now under consideration by us. We are of the view that the ratio decidendi in Hanumantha's case applies with all vigor and on all fours to the case of the plain tiff-respondent before us. Therefore, it will be useful to state the facts of that case. One Krishna Rao Deshpande was the propositus in Hanumantha's case. He had three sons through his wife Radha Bai. They were Ranga Rao, Hanumantha Rao and Lakshmana Rao. Krishna Rao Deshpande died in 1934. Radha Bai died in 1935. First son Ranga Rao had died in 1912. Hunamantha Rao was adopted out of the family. Lakshmana Rao, the 3rd son, married two wives and he died on 6-9-1952. His first wife Venku Baihad pre-deceased him in 1940. His second wife Amba Bai had only a daughter while the deceased first wife had a son, namely, Nagappa. Nagappa in turn had three children namely, Krishnaji, Lakshmana and Gundappa. Ranga Rao who had died in 1912 was married to Seetha Bai and she adopted a son on 18-9-1955 and that was Govinda, the plaintiff. Similarly, in the case with which we are concerned, Rayappa the propositus died in 1937. He had two sons namely, Ningappa and Satteppa. Setteppa had died some 45 years before the institution of the suit and in evidence it was brought that the died on 4-11-1914 very similar to the death of Ranga Rao in Hanumanthas case. Same as Ranga Rao, he was also married to Chandrawwa the mother of the plaintiff who made the adoption. The first son Ningappa died only on 10-11-1956 leaving behind him his wife Nemakka defendant-2 and four daughters namely Akkawwa, Rathanawwa, Ammawwa and Charnpakka (since deceased) and Babu Ningappa the son. Champakka, the deceased daughter, had left behind her one Bharatesh while Babu was defendant-1, Nemakka, his mother was defendant-2, and the daughters were defendants 3, 4 and 5 and Bharatesh son of a pre-deceased daughter of Ningappa was defendant-6. Defendant-7 was only a pro forma defendant. Adoption took place in both the cases when there was only one sole surviving coparcener. In our case it was Babu. In Hanumantha's case it was Nagappa. We need not seriously concern ourselves with Nagappa's children who could only claim through him. The important facts to be noticed is that plaintiff in Hanu man that case was adopted on 18-9-1955 and the Supreme Court ruled following the earlier decision in Srinivasa Krishnarao Kango v. Narayana Devji, . The ratio decided in the said case was relied upon to establish the fiction that adoption dates back to the date of the death of the adoptive father. But the only difference between that case and the case. on hand is that, there, the plaintiff who was the adopted son, Govinda Hanurnantha Rao Desai claimed more than his 1/3rd share. In declining to grant him more than 1/3rd share, the Supreme Court ruled as follows:
This Court in Shrinivas Krishnarao Kango's case, (supra) has laid down that the fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the estate of the adoptive father. But where the succession to the propertv of a person other than the adoptive father is involved,,.the princi le pplicable is not the rule of relation back but the rule that inheritance once vested the question that arose for decision in that case was whether an adoptive son can claim to succeed to a collateral's estate, divesting the property that had already vested in someone else. But the rule laid down by this Court in that case is much wider than the limited question that arose for decision and the reasons given in support of that rule support our conclusion., The rights of an adopted son cannot be more than ' that of his adoptive father. If the plaintiff's adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties.
20. From the above it is clear that as long as the adoption of the plaintiff - Banappa alias Arunkumar made on 15-7-1965 is held to be valid, that he was not born at all or that his adoptive father had died as far back as in the year 1914, would not alter the position as long as the adoption is to the family of his adoptive father and who at the time of the fictional date of adoption had remained undivided. In that sense, as there is no plea of partition between Rayappa and Ningappa or Ningappa and Babu before Rayappa or Ningappa died, then the adoption made on 15-7-1965 to the family of Satteppa the predeceased coparcener rest Anted alias Arunkumar, the plaintiff, becoming by adoption a coparcener in the family of Rayappa.
21. Therefore, in the light of the ruling of the Supreme Court, it is futile to contend that the fiction of relation back to the date of the death of the adoptive father has undergone any change by the provisions made by the Act must be rejected by us.
22. In the case of Sawan Ram v. Smt. Kalawanti, , S. 12 of the. Act fell for direct consideration by the Supreme Court. It was therein held that adoption by a widow will be adoption not only to herself but also to her husband and the adopted son is to be deemed to be a member of the family of the deceased husband of the widow. It was held further that he lost all his rights in the family of his birth and acquired the rights in the family of his adoptive father. It will be useful to extract the following passage from Sawan Ram's case :
"The section, in its principal clause, not only lays down that the 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, but, in addition, goes on to define the rights of such an adopted child. It lays down that 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. A question naturally arises what is the adoptive family of a child who is adopted by a widow, or by a married woman whose husband has completely and finally renounced the world or has been declared be of unsound mind even though alive. It is well recognized that, after a female is married, she belongs to the family of her husband. The child adopted by her must also, therefore, belong to the same family. On adoption by a widow, therefore, the adopted son is to be deemed to be a member of the family of the deceased husband of the widow. Further still, he loses all his rights in the family of his birth and those rights are replaced by the rights created by the adoption in the adoptive family. The right, which the child had, to succeed to property by virtue of being the 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 of the deceased husband of the widow ..................... That really settles the law in so far as Sec. 12 of the Act is concerned.
23. Mr.: Mandgi, learned Counsel for appellants, has contended that once it is established that Ningappa died on 10-11-1956 after the coming into force of the Hindu Succession Act, his interest in the undivided coparcenaries would devolve not by survivorship but by inheritance in accordance with the proviso to Sec. 6 of the said Act and therefore it must be held that the nature of t he family ceased to be that of a joint Hindu family because Nemikka being a female heir qualified under the proviso to Sec. 6 of the Hindu Succession Act inherited her husband's estate along with her son Babu and the joint family therefore came to an end. In order to support that contention he relied upon some observations in Sawan Ram's case supra. But those observations were made with reference to Sec. 12(c) of the Act which lays down exceptions to the rights of the adopted child in the adoptive family and we are of the view that those observations do not have any application to the facts of this case.
24. It is nobody's case that there was a partition in the family of Rayappa at any time before or after his death. Therefore, that entire proviso to Sec. 6 of the Hindu Succession Act provides for is the mode in which The shares of the heirs may be ascertained and in itself does not have the effect of dividing the property. In Sawan Ram's case there was clear evidence that partition had taken place in the joint Hindu family and the surviving coparceners on the date of partition had been put in possession of the properties and therefore the vesting was complete and a subsequent adoption by one of the widows of the pre-deceased coparcener would not have the effect of divesting such vesting having regard to clause (c) of Sec. 12 of the Act.
25. Mr. Mandgi, next placed reliance on the decision of the Supreme Court in the Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, . In the said case, it has been observed that the widow's share in the coparcenaries property must be ascertained by adding the share to which she is entitled at a notional partition during her husband's lifetime and the share which she would get in her husband's interest upon his death. It was further laid down that in order to ascertain the share of the heirs in the property of deceased coparcener, it was necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenaries property. For, by doing that alone could one determine the extent of the claimant's share. Explanation I to Sec. 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death.
26. That does not amount to ruling that on the death of the Mitakshara coparcener it does so facto, follow that a partition has taken place immediately prior to his death and his interest must devolve by succession or inheritance and not by survivorship. The ruling does no more than lay down the procedure by which the quantum of share of heirs including female heirs may be ascertained if the proviso is given effect to Sec. 6 of the Hindu Succession Act.
27. Sec. 6 of the Hindu Succession Act and the explanations thereto indicates the mode of ascertainment of shares or extent of shares and no more. This becomes clear by the very language of Sec. 6 of the Hindu Succession Act, which is as follows "6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshar coparcenaries property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenaries and not in accordance with this Act.
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara So Coparcener property shall devolve by testamentary or interstate Succession, - as the case may be, under this AF Eirid-not by survivorship.
Explanation I. - For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2. - Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenaries before the death of the deceased his heirs to claim on intestacy a share in the interest referred to therein."
(underlining is ours) In no part of the section is it laid down by the legislature that a partition must necessarily follow - or be assumed to have followed on-the deaf if a coparcener if he has left behind him female heirs as specified in Class I of the Schedule. Even the Supreme Court has said that assumption must be made that there was a partition only in order to ascertain the quantum of share. To read more than that into the decision it would be to re-write Sec. 6 of the Hindu Succession Act.
28. We may next consider the question of the effect of Sec. 12(c) of the Act. Sec. 12 of the Act is as follows "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 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 tot he 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.."
We have already referred to the decision of the Supreme Court in the case of Sawan Ram . It will be useful to refer to a more recent decision where scope of proviso (c) to Sec. 12 of the Act fell for consideration. In Vasant v. Dattu, , the Supreme Court construing the said proviso, ruled as follows :
"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. It cannot be said that on the death of a member of a joint family the property must he considered to have vested in the remaining members by survivorship. Thus where a widow of a deceased coparcener adopts a child, Sec. 12 proviso (c) does not preclude the adopted child from claiming his share in the joint family properties; for if a share is given to the adopted child there is no question of divesting any person of any estate which vested in him before adoption.
(underlining is ours) From the above it is clear that on the death of Ningappa on 10-11-lq56 there was no. ipso facto vesting of properties in either his wife Nemikka defendant-2 or Babti defendant-1, though Babu was the sole surviving coparcener. The joint family continued and he held the estate as joint family estate and a vesting could have taken place only if there was a partition between himself and his mother. Therefore, when there is no partition alleged nor proved at any time before the suit, it cannot be said that Sec. 12(c) of the Act endures to the benefit of defendants i and 2, namely, Babu and his mother Nemikka.
29. On the same analogy it has been contended by Mr. Mandgi that Schedule-G property should be deemed to be the separate property of defendant-2, as it was purchased out of her funds. On evidence there has been no proof of such a claim nor was it pleaded that defendant-2 had any independent income of her own outside of the joint family properties.
30. Notwithstanding the vagueness and ambiguity of the propositions canvassed before us to which we have already adverted, no case is made out for interference by us with the conclusions reached by the trial Court. We do not think it necessary to refer Allarpur Industries Ltd. to the other decisions cited before us. They do not take us any further than the law already declared by the Supreme Court.
31. During the pendency of this appeal, we must mention, the first appellant Babu Ningappa, the one time sole surviving coparcener before the adoption of plaintiff died and the appeal is continued by bringing his LRs. on record, which fact, has not been noticed by us earlier in the course of our judgment. We have pensioned it now. The conclusions reached by us are in no way affected by the fact of the death of the first Appellant.
32. In the result, the appeal fails and it is dismissed with costs.
33. Appeal dismissed.