S.H. Sheth, J.
1. One Madhavram who died on 5th April 1918 had two sons-Pranshanker and Manishanker. Pranshanker died on 20th August 1923 leaving behind him his widow Bai Chanchal. His brother Manishanker survived him. On 14th October 1958 the said Bai Chanchal took the plaintiff in adoption. After his adoption, the plaintiff who was then minor filed through his adoptive mother Bai Chanchal the present suit for partition of joint family properties claiming half share therein and also for taking accounts of the collections made by Manishanker on account of 'Yajaman Vritti'. He also made a claim for Rs. 215-50 being half the amount of compensation of, a certain land in respect of which an award was made for Rs. 431/-.
2. The joint family properties in respect of which the plaintiff filed the present suit principally consist of agricultural lands and houses more particularly mentioned in Schedules 'A' and 'B' to the plaint. The present suit was filed on 15th February 1959. The plaintiff was taken in adoption by Bai Chanchal after the Hindu Adoption and Maintenance Act, 1956 came into force. To the suit Manishanker Madhavram, the brother of the said Pranshanker was joined as the defendent No. 1. Manishanker's wife Bai Shiv Ganga alias Chanchal was also joined as the defendant No. 2 to the suit. The original defendant No. 2 Bai Shiv Ganga died during the pendency of the suit and her daughters were brought on record as her heirs and legal representatives. During the pendency of the present First Appeal the original defendant No. 1 Manishanker also died and an application was made to describe the three heirs of the original defendant No. 2 Bai Shiv Ganga also as the heirs of the said Manishanker. That application was granted.
3. The defendants Nos. 1 and 2 resisted the suit on several grounds. One of them was that upon the death of Pranshanker in 1923 the joint family properties had vested in Manishanker and that therefore, by virtue of the proviso (c) to Section 12 of the Hindu Adoptions and Maintenance Act, 1956 it was not open to the plaintiff to divest Manishanker of those properties and to claim a share therein. The second ground on which the suit was resisted principally by the defendant No. 2 was that some of the immoveable properties mentioned in Schedule 'A' to the plaint were properties which she had acquired in her own right under the will of her mother's sister Bai Diwali.
4. The learned Trial Judge, on consideration of evidence and the arguments advanced before him, recorded the finding that under proviso (c) to Section 12 of the Hindu Adoptions and Maintenance Act, 1956 the properties had vested in Manishanker and that therefore, the plaintiff as the adopted son of Manishanker's brother could not claim a share therein. On merits he recorded the finding that some of the immoveable properties which are more particularly mentioned in this judgment were acquired by the defendant No. 2 in her own right under the will of her mother's sister Bai Diwali and that, therefore, the plaintiff had no right to claim a share therein. So far as the rest of the properties are concerned, the defendants had led no evidence to show that the plaintiff was not entitled to claim a share therein. In view of the findings which he recorded the learned Trial Judge dismissed the plaintiff's suit with costs.
5. It is against that decree passed by the learned Trial Judge that the plaintiff has filed the present First Appeal.
6. So far as the factum of adoption is concerned it is not in question before us. So far as the validity of adoption is concerned, the only contention that was raised by the defendant before the Trial Court was that the adoption made by Bai Chanchal, widow of Pranshanker was to herself and not to her husband Pranshanker who died as far back as in 1923. The learned Trial Judge upheld this contention raised on behalf of the defendants. That finding of the learned Judge cannot be sustained in view of two decisions of the Supreme Court in that behalf. In the case of Sawan Ram v. Mst. Kalwanti and Ors. reported in : 3SCR687 it has been laid down by Their Lordships that adoption made by a widow is not only to herself also but also to her late husband. In the case ofSmt. Sitabai and Anr. v. Ramchandra reported in : 2SCR1 the Supreme Court has reiterated the same principle. In view of this legal position the finding of the learned Judge cannot be sustained and must be set aside.
7. The principal question which Mr. Vin has raised before us is whether proviso (c) to Section 12 of the Hindu Adoptions and Maintenance Act, 1956 has any bearing on the facts of the present case. Upon the death of Madhavram in 1918 and upon the death of Pranshanker, the plaintiff's adoptive father in 1923 Manishanker became the sole surviving coparcener and therefore, it was contended, the joint family properties vested in him as the absolute owner. If he became the absolute owner and if the joint family properties lost their character of joint family properties, the contention raised would have some substance. But that is not the position in law. A similar question arose before the Supreme Court in the case of Smt. Sitabai and Anr. (supra). In that case Dulichand and Bhagirath were two brothers and Bhagirath died sometime in 1930 leaving behind him his widow Sitabai. It appears from the facts of the case stated in the report that Sitabai thereafter started living with Dulichand, her husband's brother as a result of which she gave birth to an illegitimate child Ramchandra sometime in 1935. Dulichand himself died in 1958. Before Dulichand's death, however, Sitabai adopted Suresh Chandra and a deed of adoption was executed in that behalf. After the death of Dulichand, Ramchandra, the illegitimate son of Sitabai, took possession of all joint family properties. Thereafter the present suit was filed both by Bai Sitabai and her adopted son Suresh Chandra for ejectment of Ramchandra from the disputed properties. The first question which was canvassed before Their Lordships was whether Suresh Chandra who was the plaintiff No. 2 to that suit at the time of his adoption by Bai Sitabai-plaintiff No. 1 to that suit-became a coparcener with Dulichand in the joint family properties. While answering the question Their Lordships referred to the earlier judgment of the Supreme Court in Gowli Buddanna v. Commissioner of Income-Tax, Mysore : 60ITR293(SC) and observed as under:
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.
That was the proposition laid down in Gowli Buddanna's case (supra) which Their Lordships in Sitabai's case (Supra) approved. Their Lordships also referred with approval to the decision of the Judicial Committee of the Privy Council in Attorney General of Ceylon v. A.R. Arunachalam Chettiar 1957 A. C. 540 wherein the following proposition has been laid down:.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.
Having considered the aforesaid two decisions the first principle which has been laid down in the case of Sitabai (supra) is that a Hindu undivided family does not cease to be so because of the temporary reduction of the coparcenary unit to a single individual. The second principle which has been enunciated is that the character of the joint property of a Hindu undivided family remains the same though the coparcenary unit may have been reduced to a single individual. The third principle which has been laid down is that, upon adoption the adopted child becomes absorbed in the adoptive family and that all ties with the family of his birth are severed. The fourth principle which has been laid down is that a child adopted by a widow becomes a child not only of the widow but also of her deceased husband. The fifth principle which has been laid down is that the child, adopted by a widow, becomes a co-parcener with the sole surviving coparcener. As a result of the application of all these principles, an adopted son, in his capacity as a coparcener, is entitled to claim partition of the property which has all throughout retained the character of joint property of a Hindu undivided family even though for the time being the coparcenary unit was reduced to a single individual. It was, therefore, held in Sitabai's case (supra) that, because the joint family property after the death of Bhagirath continued to retain its original character in the hands of Dulichand as the widow of Bhagirath was still alive and continued to enjoy the right of maintenance out of the joint family properties, Suresh Chandra, the son adopted by Sitabai, was entitled to claim partition of and share in that property.
8. Applying the aforesaid principles to the facts of the present case, it is clear that upon the death of Pranshanker in 1923 the joint family, though reduced to having the sole surviving coparcener Manishanker in it, did not cease to exist because Pranshanker's widow Bai Chanchal having a right of maintenance and residence was alive. The properties, therefore, which Manishanker held as the sole surviving coparcener upon the death of Pranshanker continued to be the joint family properties. Therefore, upon the adoption of the plaintiff by Bai Chanchal as the son to her late husband Pranshanker the plaintiff became a coparcener with Manishanker in the joint family properties. In light of the principles laid down by Their Lordships in Sitabai's case (supra) we must hold that the joint family properties which passed into the hands of Manishanker upon the death of Pranshanker continued to be joint family properties and that as a consequence of his adoption by Bai Chanchal the plaintiff became a coparcener with Manishanker in the joint family properties. If the properties continued to be joint family properties and if the plaintiff became a coparcener with Manishanker in the joint family properties, the question of divesting Manishanker of the joint family properties cannot arise because exclusive and absolute title to them had not vested in him by devolution. Manishanker as a coparcener could not have a definite share in the properties. All that he had was a fluctuating interest which diminished with the adoption of the plaintiff by Bai Chanchal. I he plaintiff, therefore, having been adopted and having become a coparcener, entered into common possession and common enjoyment of the coparcenaries properties along with Manishanker. Both of them, therefore, had community of interest and unity of possession. In that view of the matter, we must hold, that the plaintiff, upon his adoption in 1958 by Bai Chanchal, widow of Pranshanker, became entitled to claim half the share in the joint family properties held by Manishanker, the sole surviving coparcener. In that view of the matter the finding recorded by the learned Trial Judge cannot be sub stained and must be set aside.
9. Our attention has been drawn to another decision of the Supreme Court in Sawan Ram v. Mst. Kalwanti and Ors. reported in : 3SCR687 . In order to appreciate the correct ratio of that decision it is necessary to state a few facts of that case, in that case one Ramji Dass died leaving behind him a widow Smt. Bhagwani. At the time of his death Ramji Dass owned some land and a house. Smt. Bhagwani, the widow, mortgaged a part of the land in favour of one Babu Ram. Later on, she executed a deed of gift in respect of the house and the land covering an area of 50 bighas and 14 biswas in favour of Smt. Kala Wanti who was related to her as a grand-niece. One Sawan Ram instituted a suit for declaration that both these alienations were without legal necessity and were not binding on him because, according to him, he was the nearest reversioner of Ramji Dass, the husband of Smt. Bhagwani and, therefore, his collateral. To that suit he joined as defendants Smt. Bhagwani, Smt. Kala Wanti, the donee and the mortgagee Babu Ram. The suit was decreed. The matter went to the High Court and during the pendency of the appeal before the High Court of Punjab Smt. Bhagwani adopted one Deep Chand under a deed of adoption. Inspite of the adoption made by Smt. Bhagwani the appeal was dismissed. Thereafter Smt. Bhagwani died and Sawan Ram filed another suit for possession of the house and the land which had been gifted by Smt. Bhagwani as well as for possession of land which she had mortgaged. It was contended in that suit that Smt. Bhagwani had only a life interest in those properties because she had divested herself of all the rights in those properties on 22nd August 1949, before the Hindu Succession Act, 1956 came into force. He also challenged the adoption of Deep Chandas fictitious and ineffective. In the alternative, he contended that even if the adoption of Deep Chand was valid, he could not succeed to the properties of Ramji Dass. The Trial Court dismissed the suit, 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 those properties. The High Court of Punjab upheld that decree and the matter thereupon went to the Supreme Court. Before the Supreme Court in that case two questions were agitated. The first point was that the adoption was invalid under Clause (ii) of Section 6 read with Sub-section (2) of Section 9 of the Hindu Adoptions and Maintenance Act, 1956. That point was negatived by Their Lordships. In the instant case, the decision of the Supreme Court on the first point in Sawan Ram's case (supra) is not relevant here and, therefore, it is not necessary to state it here in details. The second point that was canvassed before Their Lordships was that under the Hindu Adoptions and Maintenance Act, 1956, independent right of adoption has been given to a Hindu female and if a widow adopts a son, he becomes the adopted son of the widow only and does not necessarily become the son of her deceased husband. In support of this proposition, reliance was placed upon Sections 12, 13 and 14 of the Hindu Adoptions and Maintenance Act, 1956 and also upon the judgment of Andhra Pradesh High Court in N. Hanumantha Rao v. N. Nanumayya 1964 (1) Andhra Weekly Reports 156. The said decision of Andhra Pradesh High Court was analysed and examined and the following view was expressed by the Supreme Court on Section 5(1) of the said Act.
It is significant that, in this section, the adoption to be made is mentioned as 'by or to a Hindu'. Thus, adoption is envisaged as being of two kinds. One is adoption by a Hindu and the other is adoption to a Hindu. If the view canvassed on behalf of the appellant be accepted, the consequence will be that there will be only adoptions by Hindus and not to Hindus. On the face of it, adoption to a Hindu was intended to cover cases where adoption is by one person while the child adopted becomes the adopted son of another person also. It is only in such a case that it can be said that the adoption has been made to that another person. The most common instance will naturally be that of adoption by a female Hindu who is married and whose husband is dead or has completely renounced the world or has been declared by a Court of competent jurisdiction to be of unsound mind. In such a case, the actual adoption would be by the female Hindu while the adoption will be not only to herself but also to her husband who is dead or has completely and finally renounced the world or has been declared to be of unsound mind.
10. Thereafter, the Supreme Court proceeded to analyse and examine another part of the aforesaid decision of the Andhra Pradesh High Court bearing on Section 12 of the said Act. Two of the five propositions, laid down in Sitabai's case (supra), have been laid down in this case also. The first is that, upon adoption, an adopted child becomes absorbed in the adoptive family and all his ties with the family of his birth are severed. The second is that a child adopted by a widow becomes a child adopted to her deceased husband. It has been observed in this connection as follows:
It is well-recognised that, after a female is married, she belongs to the family of her husband. The child adopted by her must also, therefore, belong to the same family. On adoption by a widow, therefore, the adopted son is to be deemed to be a member of the family of the deceased husband of the widow. Further still, he loses all his rights in the family of his birth and those rights are replaced by the rights created by the adoption in the adoptive family The right which the child had to succeed to the property by virtue of being the son of his natural father, in the family of his birth, is, thus, clearly to be replaced by similar rights in the adoptive family, and, consequently, he would certainly obtain those rights in the capacity of a member of that family as an adopted son of the deceased husband of the widow, or the married female, taking him in adoption.
Thereafter, the Supreme Court proceeded to examine the rights of an adopted son to succeed to the estate of his adoptive father which was joint and which had been, during the period between the date of the death of his adoptive father and the date of his adoption, held by another sole surviving coparcener. It observed as under:
It may, however, be mentioned that the conclusion which we have arrived at does not indicate that the ultimate decision given by the Andhra Pradesh High Court was in any way incorrect. As we have mentioned earlier, the question in that case was whether E, after the adoption by D, the widow of B, could divest C of the rights which had already vested in C 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 fully owner of that property. In these circumstances, it was clear that after the adoption of K 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 Section 12 of the Act. It appears that, by making such a provision, the Act has narrowed down the rights of an adopted child as compared with the rights of a child born postumously. Under the Shastric Law, if a child was adopted by a widow, he was treated as 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 of a child by a Hindu widow that these provisions in CI. (c) of the proviso to Section 12 and Section 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 male 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.
In the paragraph just quoted above, it has been laid down that, after the death of one of two coparceners, the joint family property vested in the sole surviving coparcener even though the widow of the deceased coparcener had the right to maintenance and residence out of the joint family estate. This principle postulates that, as soon as the joint family is reduced to a single comparcener, it ceases to be a joint family and all its property ceases to be joint family property and vests absolutely in the sole surviving coparcener. If it so vests in the sole surviving coparcerner, he cannot be divested of it by a subsequently adopted child. This principle is in direct conflict with one laid down by the Supreme Court in Sitabai 's case (supra) that (a) a Hindu undivided family does not cease to be so because of the temporary reduction of the coparcenery unit to a single individual (b) the joint property of a Hindu undivided family retains the character of the joint property even though the coparcenery unit may have been reduced to single individual which, in our opinion, means that the joint property does not vest absolutely in the sole surviving coparcener as held in Sawan Ram's case (supra) but that the sole surviving coparcener only holds it with all his powers as the manager of the Hindu undivided family and (3) an adopted child, on becoming a coparcener with the sole surviving coparcener, becomes entitled to a share in the joint property.
11. In Sitabai's case (supra), the Supreme Court considered the question of the retention of the character of joint family after the Hindu undivided family was reduced temporarily to a coparcenery unit consisting of a single individual and held that the joint property retained its original character. In Sawan Ram's case (supra), the Supreme Court did not consider this aspect. In Sitabai's case (supra) the Supreme Court held that, upon the coparcenery unit having been reduced to a single individual, the sole surviving coparcener only held the joint property indeed with all his powers as the manager of the Hindu undivided family because the widow of the deceased coparcener had right of maintenance and residence out of it. This indeed presupposes that a Hindu undivided family as a coparcenery unit can consist of a single coparcener and the widow of another deceased coparcener. In Sawan Ram's case, the Supreme Court thought that there cannot be a coparcenery unit with a single coparcener and, therefore, held that whenever a coparcenery unit was reduced to a single coparcener, the joint property vested absolutely in the single coparcener of which he could not be divested by a subsequently adopted son. It presupposes that a coparcenery unit ceases to exist as soon as it is reduced to a single coparcener even though the widow of the deceased coparcener may be surviving and that the joint property loses its character as such property and becomes the absolute property of the sole surviving coparcener. Therefore, whereas, in terms of the principle laid down in Sitabai's case (supra) the sole surviving coparcener has a fluctuating fortune depending upon whether the widow of the deceased coparcener adopts a child or not, in terms of the principle laid down in Sawan Ram's case, he has a fixed fortune incapable of any fluctuation or disturbance by a subsequent adoption by the widow of the deceased coparcener. These, in our opinion, are the areas of conflict between these two decisions.
12. Firstly, in Sawan Ram's case, there was no question of joint property. It was only as a result of the examination of the decision of the Andhra Pradesh High Court in Hanumantha Rao's case (supra) wherein the question of joint family and joint property appears to have arisen that the Supreme Court made the observations quoted above. In Sitabai's case, the twin questions directly arose. Secondly, the facts in Sitabai's case, conform more to the facts of the instant case. Thirdly, Sitabai's case is later in point of time than Sawan Ram's case. Fourthly, in Sawan Ram's case the rights of an adopted child to property appear to have been examined in order to meet the contention that the child adopted by a widow was adopted to her and not to her husband. In Sitabai's case, the rights of a subsequently adopted son to the joint family property directly arose for the consideration of the Supreme Court. Lastly, our analysis of the aforesaid two decisions and of their areas of conflict leads us to the belief that Sitabai's case is based upon more convincing reasoning and upon the logical extension of the basic concepts governing a Hindu undivided family. We, therefore, apply to the instant case principles laid down in Sitabai's case. It is needless to say that if Sitabai's case was not there we would have respectfully followed Sawan Ram's case.
13. Mr. Vyas, appearing for the respondents, has invited our attention to a compromise decree, Ex. 64. That compromise decree was passed in Civil Suit No. 302 of 1934 between Manishanker on one hand and Bai Chanchal, the adoptive mother of the plaintiff on the other hand. In that decree the original defendant No. 1 Manishanker has been described as the sole surviving coparcener. That decree also makes it clear to us that the plaintiff's adoptive mother Bai Chanchal had agreed to the mutation entries being made in respect of the joint family properties in favour of Manishanker. Upon these two facts Mr. Vyas has tried to contend before us that the suit properties exclusively belonged lo Manishanker because, according to him, they vested in him exclusively aixd absolutely upon the death of Pranshanker in 1923. In our opinion, these two facts make no difference whatsoever. The act of Bai Chanchal in describing Manishanker as the sole surviving coparcener cannot lead us to the conclusion that the suit properties vested exclusively and absolutely in him upon the death of Pranshanker. To accede to this contention is to hold contrary to the principle laid down by the Supreme Court in Sitabai's case (supra). The agreement between Manishanker and Bai Chanchal in that suit for the latter to make a Kabuliyat in order to enable the former to have mutation entries made in the revenue records in respect of the suit properties cannot also lead us to a different conclusion because mutation entries do not convey title. They are merely meant for collection of revenue. There is one more reason why we cannot accede to the contention raised by Mr. Vyas. What we are called upon to determine in the present appeal is the character of the properties held by Manishanker the original defendant No. 1 qua the plaintiff, the adopted son of Bai Chanchal and not Bai Chanchal herself. In that view of the matter we are unable to accede to the contention raised by Mr. Vyas in support of the decree passed by the learned Trial Judge.
14. Now, turning to the merits of the case we find that the defendants have led no evidence in the present case. Out of the properties mentioned in Schedules 'A' and 'B' to the plaint, S. Nos. 399/A, 111, 399/B, 530, 966/A, 696/B, 696/C, 1070 and 1101 of village Tralsa have been held to be the properties of the exclusive ownership of the original defendent No. 2 who acquired them under the will of her mother's sister Bai Diwali. The learned Trial Judge has also held that one house in Tralsa bearing village site No. 159 and another immovable property of the original defendant No. 2 bearing village site No. 154 have been of the exclusive ownership of the original defendent No. 2. Mr. Vin, appearing for the original plaintiff, has not challenged before us the finding of the learned Trial Judge in that behalf. Therefore, for the purpose of the present appeal, we must rule them out of our consideration.
15. So far as the remaining properties are concerned, as stated above, the defendants have led no evidence whatsoever and the learned Trial Judge has determined their character on the evidence led by the plaintiff. In view of this state of affairs Mr. Vyas could not, and in our opinion rightly, challenge the finding recorded by the learned Trial Judge in that behalf. We must, therefore, hold that all the immovable properties mentioned in Schedules 'A' and 'B' to the plaint except the properties in respect of which we are confirming the finding of the learned Trial Judge that they exclusively belonged to the original defendant No. 2 must be held to be joint family properties. So also we must hold, in view of reasons stated above, that the plaintiff is entitled to one-half share therein. We find in Schedule 'B' to the plaint a small claim of Rs, 215-50 made by the plaintiff. There is no prayer in respect of the claim and Mr. Vin, appearing for the plaintiff, has also abandoned it before us. There is a prayer made by the plaintiff for taking account of the collections made by the defendant No. 1 in course of Yajman Vritti. Mr. Vin has abandoned that claim also before us.
16. In the result, we allow the appeal, set aside the decree passed by the learned Trial Judge and pass in favour of the plaintiff the following preliminary decree. It is declared that the plaintiff is entitled to possession of half the share in all the immovable properties mentioned in Schedules 'A' and 'B' to the plaint except S. Nos. III, 399/A, 399/B, 530, 696/A, 696/B, 696/C, 1070 and 1101 of village Tralsa and a house bearing village site No. 159 and another immovable property bearing village site No. 154. The defendants shall hand over possession thereof to the plaintiff. The Trial Court shall take appropriate steps to effect partition of the properties between the plaintiff and the defendants in accordance with the decree which we have passed. The plaintiff is also entitled to half the share in the income from the agricultural lands or mesne profits with effect from 4th November 1958 when he served upon the defendants the notice to effect partition. The Trial Court shall appoint a Commissioner to determine the quantum of mesne profits to which the plaintiff is entitled with effect from 4th November 1958 and shall take appropriate steps in accordance with law for effecting partition of the properties by metes and bounds if respect of which we have passed the preliminary decree. The rest of the plaintiff's claim is dismissed.
17. So far as the costs of the appeal are concerned, in view of the fact that the authoritative interpretation of Clause (c) in proviso to Section 12 of the Hindu Adoptions and Maintenance Act, 1956 was not available to the learned Trial Judge in 1962 when he decided the present suit, we think, in the circumstances of this case, there shall be no order as to costs.