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Rudrappa Yellappa Sattennanavar Vs. Mallappa Malleshappa - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 527 of 1937
Judge
Reported inAIR1940Bom95; (1939)41BOMLR1277
AppellantRudrappa Yellappa Sattennanavar
RespondentMallappa Malleshappa
DispositionAppeal dismissed
Excerpt:
hindu law - adoption-last surviving coparcener dying unmarried-adoption by mother-subsequent adoption by widow of predeceased coparcener-claim by such adopted son to family property-whether claim sustainable-such adoption whether revives coparcenary.;y and m, who were brothers, formed a hindu coparcenary. y died first leaving a widow b. m then died leaving a widow b1 and a son v. v, the last surviving coparcener, died unmarried and his mother b1 adopted the defendant.;a few months thereafter b adopted the plaintiff, who claimed half a share in the family property from the defendant :-;that as the plaintiff's adoption took place after the termination of the coparcenary on the death of v, it had not the effect of reviving the coparcenary and his claim therefore was not sustainable:;balu..........yellappa died first leaving a widow bandewa. mallappa died leaving a widow basava and a son virappa. virappa the last surviving coparcener died unmarried. basava adopted the defendant and a few months afterwards bandewa adopted the plaintiff who claimed a half share in the family property in the possession of the defendant-respondent.3. the district judge dismissed the claim relying on balu sakhmam v. lahoo sambhaji [1937] bom. 508 39 bom. l.r. 382 the facts in the full bench case were that the estate of the last surviving coparcener passed to his widow who remarried and left the family whereupon his sister became the owner. the contest was between a purchaser from the sister and a son adopted by the widow of a deceased coparcener before the widow of the last surviving coparcener.....
Judgment:

Broomfield, J.

1. This is a second appeal from the decree of the District Judge of Dharwar dismissing the plaintiff-appellant's suit for a half share of property in the possession of the defendant-respondent.

2. The material facts are these. Yellappa and Mallappa were joint brothers. Yellappa died first leaving a widow Bandewa. Mallappa died leaving a widow Basava and a son Virappa. Virappa the last surviving coparcener died unmarried. Basava adopted the defendant and a few months afterwards Bandewa adopted the plaintiff who claimed a half share in the family property in the possession of the defendant-respondent.

3. The District Judge dismissed the claim relying on Balu Sakhmam v. Lahoo Sambhaji [1937] Bom. 508 39 Bom. L.R. 382 The facts in the full bench case were that the estate of the last surviving coparcener passed to his widow who remarried and left the family whereupon his sister became the owner. The contest was between a purchaser from the sister and a son adopted by the widow of a deceased coparcener before the widow of the last surviving coparcener remarried. The full bench decided in favour of the former and laid down certain general propositions of which those material for the present case are Nos. 3 and 4 ( p. 543 ):

3. .where a coparcenary exists at the date of the adoption, the adopted son becomes a member of the coparcenary, and takes his share in the joint property accordingly, and this principle applies although the coparcenary is a zamindari having the peculiar feature of being governed by the rule of lineal primogeniture.

4. ...where the adoption takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenary, and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her.

4. Mr. Murdeshwar has attempted by a very ingenious argument to show that in the present case the coparcenary has not terminated at all and that it is the third of the propositions laid down in the full bench case and not the fourth which really applies to the facts. His argument is this. If the coparcenary terminated on Virappa's death, his mother Basava became the owner of the property, having a widow's limited estate, and logically her adoption of a son to her husband should not have divested the estate which she derived not from her husband but from her son. But it is settled law [Rajah Vellanki Venkata Krishna Row v. Venkate Rama Lakshmi Narsayya and Jamnabai v. Raychand Nahalchand I.L.R. (1883) Bom. 225 that when a woman who has succeeded as heir to her son makes an adoption, the estate she has inherited from her son is divested and the adopted son becomes the owner. That is to say, the adopted son succeeds the natural born son. In this case the defendant succeeded Virappa and Mr. Murdeshwar argues, applying the language used by the Privy Council in a somewhat similar connection in Madana Mohana v. Purushothama that the adoption must relate back to the death of Virappa and Basava's entering on the property should be regarded as a temporary interruption, operating merely to prevent the ownership of the estate being in abeyance. It is contended that on this view there has been fictionally no hiatus in the coparcenary.

5. The argument is, as I say, an ingenious one. There certainly does seem to be something to be said for the view that the coparcenary comes to an end when the estate of the last surviving coparcener passes on his death to a collateral heir or to an heir like a sister who takes an absolute estate, but does not necessarily come to an end when it passes to his widow or mother who may adopt a son to succeed the last male holder. It is clear that the last surviving coparcener and the widows of deceased coparceners together form a coparcenary. For instance Virappa, Basava and Bandewa were a coparcenary, and under the third proposition in Balu v. Lahoo Bandewa could have adopted a son while Virappa was alive who would have come into the family as a coparcener. The position now that Basava has adopted a son who takes the place of Virappa may be regarded as at least analogous.

6. On the other hand Mr. Parulekar for the respondent argues that it is not sufficient to say that the defendant succeeded Virappa and divested the estate of his mother, for at any rate the death of Virappa as the last surviving coparcener put to an end to the connection between the two branches of the family. After that no person introduced by adoption into Yellappa's branch could have any claim to the property which though formerly joint has passed completely to those who can base a claim on their connection with the last surviving coparcener. That also is a possible view. There are several ways in which the divesting of the mother's estate may be explained. See Mayne's Hindu Law, p. 266, paragraph 297, Sastri's Hindu Law, p. 277. Mr. Murdeshwar's postulate of a continuance of a coparcenary bond embracing both branches of the family does not appear to be essential.

7. The principal difficulty in the appellant's way is, however, that both in Chandra v. Gojarabai I.L.R. (1890) Bom. 463 which was affirmed in Balu v. Lahoo, and in the latter case also the estate of the last surviving coparcener passed in the first instance to his widow, and it was held nevertheless that the coparcenary terminated on his death. The full bench case went further and said that it could not afterwards be revived. Under the circumstances it seems to be impossible to say that Mr. Murdeshwar has been successful in distinguishing these cases. The most that can be said is that the Court had not actually before it the case of an adoption by the widow or mother of the last surviving coparcener.

8. Moreover this very point has been dealt with in two unreported cases, Yellappagouda v. Basangouda (1938) First Appeal No. 182 of 1935 and Rumrcm Bindurao Desai v. Armarao Bapurao (1938) First Appeal No. 247 of 1936. In those cases no doubt it was the widows of a last surviving coparcener and not his mother who had made an adoption, but it is not suggested that that makes any difference. It was held in both cases that the claim of a son adopted by the widow of another coparcener was barred by the ruling in Balu v. Lahoo. It does not appear from the judgments whether the case for the claimants was argued on quite the same lines as in the present case, but it does appear that the construction which this Court placed on the full bench ruling would have negative the argument in any case.

9. We cannot distinguish these cases and we are not at all disposed to refer the matter to a full bench. The law of adoption is in a somewhat uncertain condition at present and is likely to remain so until the highest tribunal determines the real effect of the principles enunciated in Amarmdra's case upon the law of devolution of property. In the meantime it seems desirable that this Court should maintain consistency as far as possible.

10. The appeal is, therefore, dismissed with costs.


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