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Yarlagadda Nayudamma Etc. Vs. the Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 103 to 105 of 1979
Judge
Reported inAIR1981AP19
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 12; Hindu Succession Act - Sections 6 and 30; Hindu Law
AppellantYarlagadda Nayudamma Etc.
RespondentThe Government of Andhra Pradesh and ors.
Appellant AdvocateN. Rajeswara Rao, Adv.
Respondent AdvocateGovt. Pleader and ;M. Venkateswarlu, Adv.
Excerpt:
.....natural family after adoption - property vests in a coparcener by birth - held, coparcener gets a vested right in property by virtue of inheritance and on adoption it continues to vest on him. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or..........follows from the conception of unobstructed heritage (apratibandhadaya) and of the sons' right vested by birth that an undivided son takes not only the paternal grandfather's property but also the property acquired by his father not strictly by inheritance but by virtue of his right by birth and only as unobstructed heritage.''the mitakshara and the other authorities following it are quite explicit on the matter. the very definition of unobstructed heritage makes no distinction between the property of the father and the property of the grandfather so far as the son's right to take it as unobstructed heritage is concerned. that the right vested by birth in the son extends to property acquired by the father is unequivocally stated in the mitakshara (i. 1, 23, 27, 33). therefore.....
Judgment:

Seetharama Reddy, J.

1. In this reference the point that falls for our consideration is when a member of a coparcenary governed by Mitakshara School is given in adoption, whether his undivided interest in the coparcenary property would continue to vest in him even after adoption by reason of the proviso (b) to Section 12 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Act). The answer chiefly turns upon the construction of the language employed, in particular, in proviso (b) to Section 12 of the Act. Before reaching the conclusion by the processual interpretation of the said provisions, the relevant facts may briefly be noticed.

2. The petitioner in C. R. P. No. 103/79 is one Nayudamma (male). Lakshmamma, the petitioner in C. R. P. No. 104/79 is his widowed mother and the petitioner in C. R. P. No. 105/79 is his son. Nayudamma has another son by name Sree Rama Prasad, who was given in adoption on 20-8-1970 to one R. Rattamma, who filed the declaration in C. C. 2216/75. The petitioners in the present Civil Revision Petitions and the aforesaid Rattamma claim that the adopted son is entitled to a share in the lands belonging to the natural family and therefore his share in the lands should be included in his holding and excluded from the holdings of his natural father and brother within the meaning of the proviso (b) to Sec. 12. In other words, the right of the said Sree Rama Prasad in the properties of the natural family was a vested right and that right, even after adoption, continued to vest in him and it is that vested right which is sought to be challenged by the contentions and rival contentions. This reference arises because of conflict of opinions given by the authors who edited Mulla's Hindu Law, 14th Edition on the one hand and Hindu Law of Adoption, Maintenance, Minority and Guardianship, commented by Sri S. V. Gupte.

Proviso (b) to Section 12 of the Act, in 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) xxxx xxxx xxxx (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;' XXX XXX XXX XXX

3. From the provisions of the aforesaid Statute it is quite manifest that the Legislature has enacted a special provision i. e., proviso (b) to Section 12 of the Act which is explicit and unequivocal in its language and intention. The property as per the said proviso (b) which vested in the adopted child before the adoption shall continue to vest in such person. It is further added that property will be subject to the obligations, if any, attached to the ownership of such property. Therefore it is the undoubted view of the Legislature that a person even after being given in adoption, takes along with him the property from his natural family which vested in him and continues to vest in him, adoption notwithstanding, whether that property vested in him either due to partition or otherwise. The texts of the Mitakshara Law, which we will presently see, are emphatic with regard to the vesting of the property in the coparcener. The property vests in a coparcener by birth and hence he gets a vested right in that property by virtue of inheritance. The position would have been probably different, if the proviso (b) was not enacted in Section 12. Be that as it may, in so far as the proviso (b) is concerned, it makes perfectly clear that the person even after Ms adoption, takes the property along with him which was earlier vested in that person. This view of ours is supported by Sri S. V. Gupte, who has written commentary on Hindu Law of Adoption, Maintenance, Minority and Guardianship. While dealing with the proviso (b) to Section 12 the learned Author holds the view of ours, which is to the following effect:--

'As regards property held by a son as the sole surviving coparcener in the natural family, there was, as stated earlier, a difference of opinion. But that difference does not exist under this Act; it is submitted that all property vested in the son in his natural family whether self-acquired, obtained by will or inherited from his father or other ancestor or collateral (which is not coparcenary property held along with other coparcener or coparceners) including property held by him as the sole surviving coparcener would not be divested on adoption but would continue to be vested and to belong to the son even after adoption. Under the old law a coparcener given in adoption would be divested of his interest in the coparcenary property of the natural family. That was the undoubted law. Does that law still continue or is it modified by Clause (b) of the proviso to S. 12 of the Act? Under Clause (b) any property vested in the adopted child before adoption continues to vest in such person. Can it be denied that the interest of a coparcener in the joint family property, though fluctuating, is a vested interest, whatever may be the extent of that interest? If the interest of a deceased coparcener can devolve upon his heirs mentioned in the proviso to Sec. 6 of the Hindu Succession Act and not by survivorship, why can it not be said that by virtue of the provision of Clause (b) the undivided interest of a person in a Mitakshara coparcenary property will not, on his adoption, be divested but will continue to vest in him even after adoption. If the main provisions of Section 12 had stood alone it would have been possible to contend that by virtue of these provisions a son given in adoption would cease to be a coparcener and lose his interest in the coparcenary property. But Clause (b) is an exception to the general rule contained in Section 12 and the main provisions of the section must be read subject to that exception.'

'In short on adoption not only the property belonging to an adopted child in the natural family such as his or her self- acquired property, property inherited by him or her from other persons including his or her father or other ancestor and property held as a sole surviving coparcener in a Mitakshara property, but even the undivided interest of a male child in a Mitakshara coparcenary would pass with him as if he had separated from the coparcenary.'

The second aspect of the observation which we mdaade above vip., that under Mitakshara Law, a coparcener has a vested right in the property which he acquires by birth, is reinforced by various commentators on Hindu Law. While editing Mayne's Treatise on Hindu Law and Usage, Eleventh Edition, N. Chandrasekhara Aiyar, observed in paragraph 270 as follows:

'The undivided interest of a coparcener who leaves a widow does not go by survivorship to his male issue or to the other coparceners on his death; but it goes to her as his heir for the limited estate of a Hindu woman. While she cannot be in the strict sense a coparcener with the other members, her position will be analogous to that of member of an undivided family under the Dayabhaga Law with this possible difference that, as she is only to have the 'same interest' as her husband himself had, the share to which she will be entitled at a partition may be liable to the same fluctuation caused by changes in the family as if she occupied the place of her husband or as the share of any member of an undivided Mitakshara family.'

'It follows from the conception of unobstructed heritage (apratibandhadaya) and of the sons' right vested by birth that an undivided son takes not only the paternal grandfather's property but also the property acquired by his father not strictly by inheritance but by virtue of his right by birth and only as unobstructed heritage.'

'The Mitakshara and the other authorities following it are quite explicit on the matter. The very definition of unobstructed heritage makes no distinction between the property of the father and the property of the grandfather so far as the son's right to take it as unobstructed heritage is concerned. That the right vested by birth in the son extends to property acquired by the father is unequivocally stated in the Mitakshara (I. 1, 23, 27, 33). Therefore it is a settled point that, property in the paternal or the grand-paternal estate is by birth. The distinction between the son's equal right by birth is the grandfather's property and his unequal right by birth in the father's property is fully brought out by Vijnamesvara.'

4. This apart, the coparcener has got every right under Section 30 of the Hindu Succession Act to will away his property or to dispose of or alienate in whichever way he desired, which he is entitled by birth. It may be, that at a time when he alienated or willed away, there may not have been a definite demarcation of the sons; but certainly he would be entitled to a particular share along with other coparceners which could be given effect to by various modes of disposition. That presupposes that he had got an independent right by birth which might be dormant in certain cases and patent in other cases. From the foregoing what becomes apparent is that notwithstanding the adoption, a person in Mitakshara family has got a vested right even in the undivided property of his natural family which on adoption he continues to have a right over it. This, in our judgment, is the undivided interpretation which has to be placed upon the provisions enacted in the proviso (b) to Section 12 of the Act; and to construe otherwise, would be causing violence to the explicit expression given in the language of the said proviso. If that is so it follows that Sree Rama Prasad who would be entitled from his natural family as a coparcener by virtue of vesting, would continue to have a right over it and that property will have to be taken into account for the purpose of computation of the holding of the adoptive family. It, a fortiori, follows that the extent of the property vested in Sree Rama Prasad will have to be excluded from the holding of the father or the brother as the case may be in the natural family of the said Sree Rama Prasad. In the view we have taken, the order under revisions is manifestly misconceived and the same is set aside. In view of our answer, the Civil Revision Petitions may be posted before any learned single Judge for due adjudication of the other points raised in the CRPs., in the light of the observations made with regard to the point under reference. The reference is accordingly answered.


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