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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.

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 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.

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 necessity or for family benefit, the latter is entitled to dispose of the coparcenary pro-

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.