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Shrishailappa and anr. Vs. Muttawwa and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 1096 of 1975
Judge
Reported inAIR1982Kant334; ILR1982KAR255; 1982(1)KarLJ9
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 12
AppellantShrishailappa and anr.
RespondentMuttawwa and ors.
Appellant AdvocateJ.S. Gunjal, Adv.
Respondent AdvocateS.G. Kul karni, Adv. for ;B.V. Deshpande, Adv.
Excerpt:
.....property jointly. after the death of gurappa, mullappa and parappa lived jointly and enjoyed the suit property jointly till the death of parappa. mallappa and laxmawwa lived together till about the year 1960. thereafter they did not pull on well together. i as well as for possession of the land which she had mortgaged with respondent no. where a hindu undivided family consisted of two brothers, on death of one of them, the joint family property continues to retain its character as joint family property in the hands of the surviving brother, when the widow of the deceased brother continues to enjoy the right of maintenance out of the joint family properties. hanumayya, reported in (1964) 1 andh wr 156. the supreme court disapproved this view of the andhra pradesh high court and held..........and parappa. after the death of mageppa, his son gurappa and parappa lived jointly and enjoyed the suit property jointly. gurappa, being the elder, was managing the joint family. gurappa. died on 29-11-1933 leaving behind his son mallappa, arrayed as first defendant in the suit. after the death of gurappa, mullappa and parappa lived jointly and enjoyed the suit property jointly till the death of parappa. parappa died on 8-1-1942. plaintiff no. 2 is the widow of parappa. after parappa's death. mallappa and laxmawwa lived together till about the year 1960. thereafter they did not pull on well together. laxmawwa started residing in one portion of the suit house separately. she thereafter took in adoption the first plaintiff as son to her deceased husband on 23-2-1970. she also executed an.....
Judgment:

1. This appeal by the plaintiffs is directed against the judgment and decree dated 28-1-1975 passed by the Civil Judge, Bagalkot, in R. A. No. 9/72 on his file allowing the appeal on reversing the judgment and decree dated 24-1-1972 passed by the Munsiff, Mudhol in 0. S. No. 24/70 on his file decreeing the suit of the plaintiffs as prayed for.

2. Plaintiffs instituted a suit for partition and separate possession of their share along with mesne profits. According to the plaintiffs, the porosities of the family was one Mageppa. He had two sons, namely, Gurappa and Parappa. After the death of Mageppa, his son Gurappa and Parappa lived jointly and enjoyed the suit property jointly. Gurappa, being the elder, was managing the joint family. Gurappa. died on 29-11-1933 leaving behind his son Mallappa, arrayed as first defendant in the suit. After the death of Gurappa, Mullappa and Parappa lived jointly and enjoyed the suit property jointly till the death of Parappa. Parappa died on 8-1-1942. Plaintiff No. 2 is the widow of Parappa. After Parappa's death. Mallappa and Laxmawwa lived together till about the year 1960. Thereafter they did not pull on well together. Laxmawwa started residing in one portion of the suit house separately. She thereafter took in adoption the first plaintiff as son to her deceased husband on 23-2-1970. She also executed an adoption deed in favour of the first plaintiff. Thereafter, plaintiffs Nos. 1 and 2 together instituted the suit claiming half share in the suit property on the basis of adoption of the first plaintiff by the second plaintiff.

The suit was resisted by the defendants by filing their written statements. They denied that Gurappa and Parappa were undivided brothers and that Gurappa died survived by his son. They denied the factum and validity of adoption alleged. They submitted that the suit should be dismissed with costs.

During the pendency of the suit, the first defendant died and his heirs defendants 1 (a) to 1 (d) have been brought on record.

3. The trial Court raised the following issues as arising for its consideration in the suit :

(1) Whether plaintiffs prove that plaintiff No.2 and defendant No. 1 are joint as alleged in the plaint?

(2) Whether defendants prove that partition in the family took place between Gurappa and Parappa after the death of Mageppa as alleged in their W. S. ?

(3) Whether plaintiffs prove the factum of adoption of plaintiff 1 as alleged in the plaint ?

(4) Whether plaintiffs prove that the signature of plaintiff No. 2 was taken by defendant No. 1 in the circumstances as mentioned in para 3 of the plaint?

(5) In case of partition, what are the properties liable for partition in the suit9

(6) In case of partition, what is the share to which the parties are entitled?

(7) Whether there is no cause of action for the suit?

(8) Whether this Court has no pecuniary jurisdiction to try this suit?

(9) What decree; and what order?

4. The learned Munsiff appreciating the evidence on record answered issue No. I in the affirmative, issue No. 2 in the negative and Issues Nos. 3 and 4 in the affirmative. Under Issue No. 5, he held that the suit land and the house described in paras 4 (a) and

4 (b) of the plaint were liable for partition. Under issue No. 6 he held that plaintiff No. I was entitled to half share in the property described in paras 4 (a) and 4 (b) of the plaint. He answered issues Nos. 7 and 8 in the negative and in that view, he decreed the suit of the plaintiffs as prayed for. He directed that the future mense profits may he determined under 0. XX, R. 12 (1) (c). C. P. C. Aggrieved by the said judgment and decree, the defendants went up in appeal before the Civil Judge, Bagalkot, in R. A. No. 972 on his file.

5. The learned Civil Judge raised the following points as arising for his consideration in the appeal :

(1), Whether plaintiff No. I proves that he was taken in adoption by plaintiff No. 2, and whether they further prove the factum and validity of adoption ?

(2) Whether defendants prove that there was a partition between Gurappa and Parappa after the death of their father Mageppa ?

(3) What is the share to which the first plaintiff is entitled, if any; and in what all properties ?

6. Reassessing the evidence on record in the light of the arguments addressed before him, the learned Civil Judge answered point No. I in the affirmative and points Nos. 2 and 3 in the negative. He, however, held that since the property was vested in Mallappa son of Gurappa as sole surviving coparcener, the first plaintiff, the adopted son, could not divest the property under S. 12(c) of the Hindu Adoptions and Maintenance Act, 1956 and in that view, he allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs with costs. Aggrieved by the said judgment and decree, the plaintiffs have come up with the above second appeal before this Court.

7. Sri Gunjal, learned advocate appearing for the appellants, strenuously urged before me that the learned Civil Judge was not justified in holding that the adopted son, plaintiff No. 1, could not divest the property vested in the sole surviving coparcener as the property did not lose its character of joint property so long as plaintiff No. 2 was alive in the family and capable of taking a child in adoption. He relied for the proposition an a decision of the Supreme Court in the case of Smt. Sitabai v. Ramchandra : [1970]2SCR1 . As against that Sri Kulkarni, learned advocate appearing for the contending respondents-defendants, relied on a decision of the Supreme Court in the case of Sawan Ram v. Mst. Kalawanti : [1967]3SCR687 , to support the judgment and decree of the learned Civil Judge.

8. The sole point. therefore, that arises for my consideration in this appeal is :

'Whether the learned Civil Judge was justified in holding that in view of S. 12(c) of the Hindu Adoptions and Maintenance Act, the adopted son, namely, plaintiff No. 1, could not divest the property vested in Mallappa as the sole surviving coparcener and as such the plaintiffs were not entitled to partition of the property in question ?

9. It is not in dispute before me that plaintiff I was adopted legally and validly by plaintiff No. 2 in the year 1970. Both the Courts below have held the same as proved and there is no dispute about it before me. It is further not in dispute that Parappa and Mallappa were members of the coparcenary and Parappa lived in the coparcenary till his death in 1942. It is further not in dispute that thereafter plaintiff No. 2 continued to stay in the family till she adopted plaintiff No. I in about the year 1970. That is how the question whether the property vested in Mallappa as sole surviving coparcener after the death of his uncle Parappa could be divested on adoption of plaintiff No. I by plaintiff No. 2 arises for consideration.

10. Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956 reads :

'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 of her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family Provided that-

(a)----------------

(b) ... ... ... ... ...

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.'

Mulla on Hindu Law, 14th Edition, commenting on this, states :

'The rule laid down in the proviso does not, however, abrogate the incidents of joint family property as will be seen from the illustrations below. Nor does it have the effect of preventing the adopted son from challenging an alienation made by the adoptive mother prior to 1956 where the alienation was not for legal necessity. Housabai v. Jijabai AIR 1973 Born 98 ' (See in this connection Srinivas Krishnarao v. Narayan Devji. : [1955]1SCR1 and Hirabai and Anr. v. Babu Manika Ingale, : AIR1980Bom315 (DB).)

The Supreme Court of India in the case of Sawan Ram v. Mst. Kalawanti : [1967]3SCR687 had an occasion to consider a similar question. The facts are (Paras 1 and 2):

One Ramji Dass died leaving behind a widow, Smt. Bhagwani. At the time of his death, he owned some land and a house. 4 bighas and 17 biswas of the land were mortgaged by Smt. Rhagwani on 2nd May, 1948 in favour of respondent No- 3, Babu Ram. Later, on 22nd Aug., 1949, she executed a deed of gift in respect of the house and the land covering an area of 50 bighas and 14 biswas in favor of Smt. Kalawanti who was related to her as a grand-niece. Sawan Ram. appellant instituted a suit for a declaration that both these alienations were without legal necessity and were not binding on him, claiming that he was the nearest reversion of Ramji Dass being his collateral. In that suit, Smt. 16hagwani, the done Smt. Kalawanti, respondent No. 1, and the mortgage, Babu Ram, respondent No. 3, were impleaded as defendants. That suit was decreed and Smt. Bhagwani went up in appeal to the High Court During the pendency of the appeal, Smt. Bhagwani adopted respondent No. 2, Deep Chand, the son of Brahmanand and his wife, respondent No. 1, Smt. Kalawanti. A deed of adoption was executed by her in that respect on 24th Aug., 1959. The appeal was dismissed in spite of this adoption.

Smt. Bhagwani died on 31st Oct., 1959, and thereupon, the appellant brought a suit for possession of the

house and the land which had been gifted by Sint. Bhagwani to respondent No. I as well as for possession of the land which she had mortgaged with respondent No. 3. It was claimed that Smt. Bhagwani had only a life interest in all these properties, because she had divested herself of all the rights in those properties on 22nd Aug., 1949, before the Hindu Succession Act, 1956 (No. 30 of 1956) came into force. The adoption of Deep Chand was also challenged as fictitious and ineffective. It was further urged that, even if that adoption was valid Deep Chand became the adopted son of Smt. Bhagwani and could not succeed to the properties of Ramji Dass. The suit was dismissed by the trial Court, holding that the adoption of Deep Chand was valid and that, though Smt. Bhagwani had not become the full owner of the property under the Hindu Succession Act, 1956, Deep Chand was entitled to succeed to the property of Ramji Dass in preference to the appellant, so that the appellant could not claim Possession of these properties. That order was upheld by the High Court of Punjab, and the appellant went up to Supreme Court in appeal by special leave.

The Supreme Court in that case held

(Para 9)

'As we have mentioned earlier. the question in that case was whether E, after the adoption by D, the widow of B, could divest of the rights which had already vested in before the adoption. It is significant that by the year 1936 C was the sole male member of the Hindu joint family which owned the disputed property. B died in the year 1924 and A died in 1936. By that time, the Hindu Women's Rights to Property Act had not been enacted and, consequently, C, as the sole male survivor of the family, became full owner of the property. In these circumstances, it was clear that after the adoption of E by D, E could not' divest C of the rights already vested in him in view of the special provision contained in Clause (c) of the proviso to S. 12 of the Act. It appears that, by making such a provision. the Act has narrowed down the rights of a child born posthumously. Under the Shastric Law, if a child was adopted by a widow, he was treated as a natural-born child and, consequently, he could divest other members of the family of rights vested in them prior to his adoption. It was only with the limited object of avoiding any such consequence on the adoption tion of a child by a Hindu widow that these provisions in Clause (c) ot, the proviso to S. 12 ' and S. 13 of the Act were incorporated. In that respect, the rights of the adopted child were restricted. It is to be noted that this restriction was placed on the rights of a child adopted by either a mate Hindu or a female Hindu and not merely in a case of adoption by a female Hindu. This restriction on the rights of the adopted child cannot, therefore, in our opinion, lead to any inference that a child adopted by a widow will not be deemed to be the adopted son of her deceased husband.'

Relying on these observations, the learned counsel for respondents submitted that the view taken by the learned Civil Judge that plaintiff No. 1, even though he was held to be adopted by plaintiff No. 2, could not divest the property vested in Mallappa, as the last surviving coparcener.

11. The learned counsel appearing for the appellants, however, invited my attention to a later decision of the Supreme Court in the case of Smt. Sitabai v. Ramchandra : [1970]2SCR1 wherein the nature of property held by the sole surviving coparcener in a Hindu joint family is specifically considered and the effect of adoption by a widow in the joint family is indicated. The Supreme Court has observed in para-3 of the judgment thus.

'Where a Hindu undivided family consisted of two brothers, on death of one of them, the joint family property continues to retain its character as joint family property in the hands of the surviving brother, when the widow of the deceased brother continues to enjoy the right of maintenance out of the joint family properties.'

Then dealing with the effect of S. 12, their Lordships have further observed :

'When on death of one of the two brothers, who constituted a joint Hindu family, an illegitimate son was born to the widow of the deceased brother as a result of connection with the surviving brother and before the death of that brother the widow adopted a male child, the adopted son became the coparcener with the surviving brother of widow's husband and after his death, was entitled to joint family properties.'

The Supreme Court has again observed in para-6 of the judgment thus:

'It is clear on a reading of the main part of S. 12 and sub-section (vi) of S. 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his

or her birth. The child altogether ceases to have any ties with the family of his, birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. The result is, as mentioned in S. 14(l) namely where a wife is living, adoption by the husband results in the adoption of the child by both these spouses; the child is not only the child of the adoptive father but also of the adoptive mother. When a widow or, an unmarried woman adopts a

child, any husband she marries subsequent to adoption becomes the step-father of the adopted child. The scheme of Ss. 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes

absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of sponsorship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husband's brother would necessarily be the uncle of the adopted child .It is true that Section 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of Ss. 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband . .. ......

The Additional District Judge was, there fore, right in granting a decree in favour of the plaintiff No. 2 declaring his title to the agricultural lands in the village Palasia and half share of the house situated in the village.'

12. The facts of this case are nearer to the facts of the present case. The Supreme Court in the case has specifically discussed the character of property held by the sole surviving coparcener and the relationship of the adopted son to such surviving coparcener and his right to ask for partition. In the circumstances, therefore, the learned counsel for the appellants rightly submitted that the later case is more relevant to the facts of the Present case and the decision rendered therein applies to the facts of the present case. There is substance in the submission.

13. In the earlier case cited above, there is no consideration of the nature and character of property held by the sole surviving coparcener in a joint family and the effect of adoption on such property. Hence, the observations in the earlier case are not very relevant to the facts of the present case.

14. In fact these two decisions came up for consideration before a Division Bench of the Bombay High Court in the case of Y. K. Nalavade v. Ananda G. Chavan : AIR1981Bom109 . Deshpande, J., who delivered the judgment for the Bench, in paragraph-19 of the judgment has observed thus :

'As stated earlier, Mr. Sali relied on the case of Sawan Ram v. Mst. Kalawanti, reported in : [1967]3SCR687 . Observations in para 9 of this judgment do apparently support Mr. Sali. But the same run counter to the ratio of the later judgment in Sitabai's case : [1970]2SCR1 . 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. Sint. 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, Sint. Bhagwani adopted the donee's son on 24th Aug., 1959. After Bhagwani's death on 31st Oct., 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 1he said property. It will thus be clear that the case itself did not raise any question of Tights or title of sole surviving coparcener in the joint property or effects of adoption hereon. 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. Hanumat 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.'

Those observations apply to the facts of the present case also.

15. In fact a Full Bench of this Court in the case of Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. : AIR1980Kant92 by a majority decision has held that if there are two irreconcilable decisions of the Supreme Court Tendered by Benches consisting ef the same number of Judges, the High Courts are bound by the later decision of the Supreme Court. This view is reiterated by a Full Bench of this Court in the case reported in : AIR1980Kant95 . That way also it is obvious that this Court is bound by the later decision of the Supreme Court.

16. In the result. therefore, the appeal is, allowed. The judgment and decree of the' learned Civil Judge are set aside for the reasons discussed above and the judgment and decree of the learned Munsiff are sustained and maintained. No costs.

17. Appeal allowed.


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