6.* Mr. Sail relies on Clause (c) of the proviso to Section 12 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act'), in support of his second contention that Ananda's adoption, cannot have the effect of divesting Dhondi, of the property held by him since 1929, It is necessary first to ascertain what precisely was vested in Dhondi in 1929 to find out if any process of divesting is involved at all in Ananda's claim to half share in the said property.
7. Admittedly, Govinda died when he was living joint with his brother Dhondi leaving behind him, his widow competent to adopt. The property held by Dhondi, admittedly is ancestral and he must, therefore be held to be holding it as the sole surviving coparcener. That the widow Gitabai has only a right of maintenance, has no bearing on the question. In the case of Sitabai v. Ranichandra reported in : 2SCR1 , the Supreme Court held that the family of a sole surviving coparcener, with a widow competent to adopt, continues to be joint family, and the property so held by him is joint family property. The Court, referred to its earlier judgment in : 60ITR293(SC) , wherein the Court had followed the judgment in the case of Kalyanji Vithaldas v. Commissioner of Income-tax, Bengal, reported in and observed: (para 3, page 345)
'Under the Hindu system of law, a Joint family may consist of a single male member and, widows of deceased male members and that the property of a joint family did not cease to belong to a joint family, merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property, may possess.' The Court then referred to the dicta of the Judicial Committee in Attorney-General of Ceylon v. A.R. Arunachalam Chettiar reported in 1957 AC 540 and observed at p. 346:
'It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family.' The Court then quoted the following passage at page 346 from the Arunachalam's case (supra) to indicate the nature of the title of such sole surviving coparcener with a widow in the family:
'........... though it may be correct to speak of him as the 'owner', yet it is still correct describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality; it is such, too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property.' The Court then quoted judgment of Gratisan, J. at page 346 and observed:
'The property which was the joint family property of the Hindu undivided family did not cease to be so because of the 'temporary reduction of the coparcenery unit to a single individual'. The character of the property, viz., that it was the joint property of a Hindu un-divided family remained the same.' The Court then observed by reference to the facts of the said case, that the widow of the first deceased brother had adopted a son before the death of the second brother and
'the adopted son, became the coparcener with the surviving brother of widow's husband and after his death, was entitled to joint family properties.'
8. What can be said to have been vested in Dhondi under this legal position? The word 'vest' is a word of variable import, its precise meaning depending on the context. Ownership of the joint family property vests in the joint family while management thereof alone vests in the Manager. No one member, including even a sole surviving coparcener, can ever claim to be the owner of the entire or any specific share in a specific property, till the partition takes place, the quantum of the share and the extent of the property falling to it till then, being in a perpetual state of fluctuation. In the case of Anant v. Shankar, reported in , their Lordships of the Privy Council, adverted to this feature in the following words:
'As (1867) 11 M I A 75 made clear, the fraction, which is at any time employed to describe the quantum of the interest of a male member of the family does not represent his rights while the family is joint, but the share which he would take if a partition were then to be made. His interest is never static but increases by survivorship as others die and lessens as others enter the family by birth or adoption. What principle requires that the death of the last surviving coparcener should prevent any further fluctuation of the interest to which he was entitled notwithstanding that a new male member has since then entered the family by adoption? There is of course, some convenience in bringing fluctuations to an end, but other principle it is difficult to find.'
9. This is affirmed by the Supreme Court in the case of Commissioner of Gift Tax v. N.S. Getty Chettiar reported in : 82ITR599(SC) in the following words:
'It is necessary to mention that according to true notion of an undivided Hindu family, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share namely a third or fourth. All the coparceners in a Hindu joint family are the owners of the properties of the family. So long as the family remains joint, no coparcener can predicate what his share in the joint family property is. His share gets determined only when there is a division of status or a division by metes and bounds. Therefore, it is not correct to assume that a coparcener in Hindu joint family has any definite share in the family property before its division.'
10. It is true that the property includes an interest therein, and such an interest may admit the process of vesting and divesting in the same manner as the property itself. No process of vesting or divesting however, can be said to be strictly speaking, involved merely, in the fluctuations of such indefinite and uncertain interests in the property to which the joint family property is exposed, on increase or decrease in the strength thereof. That one may loosely describe, it so unguardedly is besides the point. Recognition of such member's right to alienate his undivided interest or of its vesting in the Receiver in any Court proceedings, on equitable considerations under the Judge made law, still cannot make any difference to the fluctuating nature of such an undivided interest and the principle enunciated in the above passages.
11. The law declared in these passages still holds good in regard to the incidents of joint family properties and interests of the incoming and outgoing members therein. Recent enactments have not altered it the least. The property left with Dhondi on the death of Govinda in 1929, continued to be the joint family property under this law, notwithstanding his being the sole surviving coparcener. It was as much liable to be shared by any coparcener that Govinda's widow might bring in the family by adoption at any time during her lifetime, as by his own sons on their birth. Dhondi's title, so inherently defeasible, on account of its character and incidence, was first defeated on the birth of his sons and again, defeated when one of his sons, Ananda was adopted and made a coparcener of equal status in place of his adoptive father Govinda on 1-4-1957. This defeasance is the incidence not of the adoption, but of the character, of the property, and the family, and widow's rights therein. The adoption merely furnished an occasion as the birth in the family could have. Thus no question of the property being vested in Dhondi or his being divested by Ananda in 1957 on adoption can really arise. Ananda succeeds to the interest of his father as coparcener by the sheer force of this unaltered legal position as per the rules of survivorship.
12._ Mr. Sali however, contends that Clause (c) of proviso to Section 12, is aimed at preventing such effect. Section 12 reads 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 to the obligation's, if any attaching to the ownership of such property, including 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.'
13. The section is no doubt very unhappily worded and is not free from ambiguity. This is one of the recent enactments under which principles of Hindu Law are codified by eliminating all outdated and outworn rules of original Texts. The legislative intent can be better understood if the incidence of adoption under the Texts of Hindu Law and the inconvenience and inequities, it was found to have caused, are borne in mind.
14. The severance of the ties in the family of birth and replacement thereof by those of the adoptive family, is the basic, ordinary and necessary incidence of any adoption. This cannot but have retrospective effect with the date of the birth of the child, it being impossible to conceive of one's being parent, brother or sister up to a certain date and cease to be so thereafter. Though the new ties are fictional and artificial, the relationship so forged with retrospective effect, cannot but have its impact on the devolution of the properties whether by the rule of survivorship or by the rule of inheritance.
14-A. This incidence of adoption was sought to be made effective under texts of Hindu Law, from the date of the death of adoptive father as to his rights in the property, raising a fiction of the child having been born in the family thereon, without regard to his actual date of birth or adoption. In the event of his adoptive father having died as member of the joint family, the adopted son could invoke the rule of survivorship retrospectively, undo the partition effected after such death of his father, under this doctrine of 'relation back' and claim fresh partition and the share therein for himself allottable to his father, and also consequentially reach the same in the hands of any one who in the meanwhile inherited the same before the date of his adoption. In the event of the adoptive father dying as a divided member with separate property acquired by survivorship, succession or otherwise, the adopted son could divest anyone, of the property, inherited by him, which he would have inherited under the rule of inheritance, because of his being a nearest heir, without regard to whether, the property belonged to the adoptive father or any collateral and reach the same in the hands of such heir's heir. This worked great hardships, inconvenience and injustice, which the Court could not avoid in spite of their efforts. The cases reported in : 1SCR1 are illustrative of such inequities and the judges endeavour to avoid it and the cleavage of opinion amongst them as to the extent of such avoidance.
15. Section 12 is aimed at eradicating such inequities. Adoption is expressly made effective from the date of adoption Section 12 consists of two parts. The second part specifically deals with the ties forged and snapped on adoption and their effect on the rights in the property acquired during the subsistence of such ties. Both the parts of Section 12 are aimed at abolishing the much maligned doctrine of 'relation back', by reference to its retrospective effect on the rights in the property. Though, both the parts make adoption effective from the date of adoption, raising fictions to that effect, mechanism resorted to, to achieve the same objective, is different in the one from the other. The fiction raised in the first part is to be effective 'for all purposes' from the date of adoption. This prevents the adoption in the joint family from having any retrospective effect on its property. Under the rule of survivorship, a member gets interest in the property on his birth or adoption. The section prevents the rule of survivorship from having any effect before the date of adoption and prevents the adopted son from re-opening the partition effected after the death of his adoptive father and consequently reaching the property in the hands of the divided members or their heirs.
16. The second part takes notice of the inevitable retrospective effect of the severance and replacement of the 'ties' on adoption and consequential divesting of the adopted son and others of the properties inherited as the nearest available heir during the subsistence of the pre-adoption ties, consistent with the fiction of his being born in adoptive family. While devolution of the property on the member of the joint family entering therein by birth or adoption, under the rule of survivorship becomes effective only on partition, the succession to the same under rule of inheritance by the nearest available heir becomes effective immediately on the death of the holder, when succession opens. Second part, however, makes such divesting ineffective firstly by eliminating all pervasive 'for all purposes' fiction of the first part from this part, and secondly by making the post-adoption ties effective from the date of adoption; and thirdly, by engrafting an exception to ordinary retrospective effect of severance and replacement of 'ties' by enacting Clauses (b) and (c) in the proviso and expressly preventing the divesting of the child and other persons of the properties inherited by them, as nearest heir, during the subsistence of the pre-adoption ties. Merely making adoption effective from the date of adoption could not have had this effect. Arguably such date could be taken as the date from which, rights acquired under the ties newly forged could be enforced with retrospective effect. The 'for all purposes' fiction of the first part also could have operated to produce the opposite result. Clauses (b) and (c) of the proviso thus form integral part of the second part of the section which is aimed at preventing the adoption ties from having any retrospective effect on the properties vested. Reference to Clause (a) is not relevant in the present context, but nature of the prohibitions against marriage sought to be preserved thereunder also shows, how the entire proviso and the second part of the section is intended to prevent retrospective effect of the adoption ties.
17. Though the Section 2 does not expressly refer to the two different rules of devolution, the text makes it clear that first part prevents the rule of survivorship from having retrospective effect while second part prevents rule of inheritance from having such retrospective effect. Ananda's claim on adoption to the interest in the property held by Dhondi, as a sole surviving coparcener is covered by first part of the Section 12 and not by the second part thereof. Clause (C) of the proviso is not connected threwith. Reliance thereon by Mr. Sali is thus misconceived.
18. Kamat, J relied on the judgment of Sitabai's case : 2SCR1 (supra) in support of his view. Plaintiff Sitabai's husband Bhagirath had died when he was joint with his brother Dulichand. She gave birth to Ramchandra later as a result of her illicit connection with Dulichand, who could obviously not lay any claim to the joint family property. Sitabai adopted Suresh before Dulichand died on 13th March 1958. Dulichand had executed a will with regard to the ancestral house in favour of Ramchandra. Ramchandra took over possession of the agricultural land and house of the family on Dulichand's death. Sitabai filed a suit for possession of the same. The trial Judge upheld her claim and title of her adopted son and decreed the suit in its entirety. The District Court in appeal, modified this decree and upheld claim of Ramchandra to the half share only in the house. The High Court in Second Appeal dismissed the suit in its entirety. The Supreme Court accepted Suresh's claim to have been coparcener of Dulichand on adoption and set, aside the judgment of the High Court for the reasons indicated in the passages quoted above. It however, restored judgment of the District Court upholding Ramchandra's right to half the house on the strength of the will, though the will covered the entire house. This could obviously be on the ground, though not expressed in the judgment, that Dulichand could bequeath only his half interest in the house, other half being the property of the coparcener Suresh. It is true that Clause (c) of the proviso to Section 12 is not referred to in the judgment presumably because, none must have found the same to have any relevance, and rightly. Ratio of this judgment undoubtedly supports plaintiff's contention in this case.
19. As stated earlier, Mr. Sali relied on the case of Sawan Ram v. Kalawanti reported in : 3SCR687 . Observations in paragraph 9 of this judgment do apparently support Mr. Salt But the same run counter to the ratio of the later judgment in Sitabai's case. Kamat, J., observed that the ratio of Sawan Ram's case decided by three Learned Judges, has been overruled by Sitabai's case (supra) decided by another Bench of three Judges. We however, find that the point, arising in the Sitabai's case had not at all arisen in Sawan Ram's case. Smt. Bhagwani does not appear to be the widow of the joint family. She was holding lands and houses as limited owner as an heir of her husband Ramji Dass. When she tried to alienate the said property by a mortgage deed and a gift-deed, Sawan Ram filed a suit as a reversioner for declaration that the same was not binding on him. The suit was decreed. During pendency of Smt. Bhagwani's appeal, Smt. Bhagwani adopted the donees's son on 24th August 1959. After Bhagwani's death on 31st October 1959. Sawan Ram filed another suit for possession of the property. All the three Courts, including the Supreme Court, dismissed Sawan Ram's suit and upheld validity of adoption and adopted son's title to the said property. It will thus be clear that the case itself did not raise any question of rights or title of sole surviving coparcener in the joint property or effects of adoption thereon. Claim of adopted son to the property was challenged on the ground that he can be the adoptive son only of Bhagwani and not of her husband and such adoption cannot affect reversioner's rights. Reliance was placed on the judgment in the case of N. Hanumant Rao v. Hanumayya reported in (1964) 1 Andh WR 156. The Supreme Court disapproved this view of the Andhra Pradesh High Court and held that on adoption, the child becomes the son of both, the spouses, husband and widow. The Court, however, upheld the conclusion of the said High Court that the adopted son cannot divest the title of sole surviving coparcener. Firstly, later decision would prevail over the earlier. Secondly, decision in former case is clearly obiter, the point not having arisen there. Thirdly, legal position enunciated in Sitabai's case was not brought to the notice of the learned Judges in Sawan Ram's case. Reliance on Sawan Ram's case by Mr. Sali thus appears to us to be ill founded.
20. The result is that the appeal fails. The Learned Single Judge did not give any direction, to protect alienees, to allot two lands covered by the impugned sale deeds to the share of Dhondi, if possible. We think it proper to give such direction and modify the operative part of the judgment to this extent.
21. With this modification, in the concluding para of the judgment, appeal is dismissed.
22. In the circumstances of the case, there will be no order as to costs.
23. Order accordingly.