Holding

Clause (c) of the proviso to section 12 does not divest an adopted child of a widow of a share in joint family property, and the property remains joint family property even when held by a sole surviving coparcener, allowing the adopted child to claim his share subject to prior alienations.

Summary

The case involved Dharma Agalaw, the sole surviving coparcener of a Hindu joint family, whose brother Miragu had died leaving a widow Champabai. After the Hindu Adoptions and Maintenance Act, 1956 came into force, the widow adopted Pandurang, who then claimed a one‑half share in the joint family property that had passed to Dharma by survivorship. The trial court dismissed the suit, but the district and high courts allowed a partition decree in Pandurang’s favour. The Supreme Court examined whether clause (c) of the proviso to section 12 of the Act barred an adopted child of a widow from divesting a pre‑existing estate, and whether the property ceased to be joint family property when held by a sole surviving coparcener. It held that the joint family property retains its character even in the hands of a sole surviving coparcener, and that clause (c) does not apply to prevent Pandurang from claiming his share, except for assets alienated before his adoption. Consequently, the appeal was dismissed and the partition decree upheld.

Issues considered

Whether a person adopted by a Hindu widow after the Hindu Adoptions and Maintenance Act, 1956 can claim a share in joint family property that had devolved on a sole surviving coparcener prior to the adoption.
Whether clause (c) of the proviso to section 12 of the Hindu Adoptions and Maintenance Act, 1956 bars such a claim.
Whether joint family property ceases to be joint family property when it passes to a sole surviving coparcener.
Whether an adopted child of a widow becomes a coparcener entitled to partition and whether alienations made before adoption can be challenged.

Legislation cited

Hindu Adoptions and Maintenance Act, 1956s. 11, s. 12, s. 13, s. 14

Subjects

Hindu lawMitaksharajoint familycoparceneradoptionHindu Adoptions and Maintenance Actpartition suitsection 12(c)sole surviving coparcener

Judgment

DHARMA SHAMRAO AGALAWE
A
I v.
PANDURANG MIRAGU AGALAWE & ORS.

FEBRUARY 22, 1988

IE.S. VENKATARAMIAH AND K.N. SINGH, JJ.) B

Hindu Adoptions and Maintenance Act, 1956-Section 12-
;. Proviso (c)-Interpretation of-Whether a person adopted by a Hindu
widow can claim share in the joint family property which had devolved
on a sole surviving coparcener on the death of the husband of the widow
who took him in adoption-Whether it bars filing of a suit for that C
).purpose.
j '
Hindu Law-Mitakshara School-Joint family property devol-
ving on a sole coparcener-Whether remains joint family property--
Distinction between powers of manager of joint family property and
sole surviving coparcener-Whether a person adopted by a widow after D
the Hindu Adoption and Maintenance Act, 1956 came into force can
claim share in the joint family property which had devolved on a sole
coparcener prior to the Act.

A person had two sons, the appellant-Dharma and another
t Miragn. Miragn died issueless in 1928 leaving behind his widow, E
respondent No. 2. The Joint family property devolved on the appellant
as sole surviving coparcener. The appellant disposed of certain proper-
ties. In 1956 the Hindu Adoptions and Maintenance Act, 1956 came into
force. In 1968 the widow took respondent No. l in adoption. Respon-
dent Nos. l and 2 filed a suit for partition and separate possession of
one-half share in the property of the joint family. Trial Court dismissed F
~. J !he suit. Respondent Nos. t and 2 filed an appeal which was allowed l>y
· ~the District Jndge and a preliminliry decree for partition and separate
possession was passed. The appellant filed an appeal before the High
Court and the High Court affirmed the decree passed by the District
Judge. Hence this appeal by special leave. The contention of the appel·
lant was that respondent No. t could not divest him of any part of the G
estate which had been vested in him liefore the adoption of respondent
...._ No. l in view of clause (c) of the proviso to section 12 of the Act.
Dismissing the appeal, this Court,

HELD: The Joint family property does not cease to he joint fam·
ily property when it passes to the hands of a sole surviving coparcener.. H
llJT.7
1078 SUPREME COURT REPORTS [1988] 2 S.C.R.

A If a son is born to the sole surviving coparcener, the said properties 'f
become the joint family properties in his hands and in the hands of his
son. Theonly·dift'erence between therightofamanagerofajointHindu /'- •
family over the joint family properties where there are two or more
coparceners and the right of a sole surviving coparceners in respect of
the joint family properties is that while the former can alieD11te the joint
B family properties only for legal necessity or for family benefit, the latter
is entitled to dispose of the coparcenary property as if it were his sepa- t
rate property as long a& he remains a sole surviving coparcener and he
may sell or mortgage the coparcenary properfy even though there is no '
legal necessity or family benefit or may even make a gift of the coparce- -
nary propei-ty. If a son is subseqnently born to or adopted by the sole
C surviving coparcener or a new coparcener is inducted into the family on )
an adoption made by a widow of a deceased coparcener an alienation / -
made by the sole surviving coparcener before the birth of a new· "
coparcener or the induction of a coparcener by adoption into the family
whether by way of sale, mortgage or gift would however stand, for the
coparcener who is born or adopted after the alienation cannot object to
D alienations made before he was begotten or adopted. f1085G-H; 1086A-C]

In the instant case the joint family properties which belonged to
the joint family consisting of Dhanna-the appellant and his brother
Miragu continued to retain the character of joint family properties in
the hands of Dharma-the appellant as Champabai, the widow of
E Miragu was still alive and continued to enjoy the right of maintenance 1
out of the said joint family properties. Pandurang-the tst respondent
on adoption became the adopted son of Miragu and became a copar· ,,,..:
cener with Dharma-the appellant in the joint family properties. When
once he became a member~ coparcenary which owned the joint
family properties he was entitled to institute a suit for partition and
F separate possession of his one-half share in the joint family properties,
of course, except those which had been alienated in_ favour of third ,\ 4
parties before the adoption by Dharma-the appellant. [1084E-G] .J-'.r· ·.
Clause (c) to proviso of section 12 of the Act would not be
attracted in the instant case since there was no 'vesting' of joint familJ'
G property in Dharma-the appellant which took place on the death of
Miragu and no 'divesting' of property took place when Pandurang-the
first respondent was adopted. [1086D-E]

The Joint family properties continued to remain in the hands of
Dharma-the appellant as joint family properties and that on his adop-
H tion Pandurang--the tst respondent became a member of the coparce· .
D.S. AGALAWE v. P.M. AGALAWE [VENKATARAMIAH, J.[ 1079

'r nary entitled to claim one-half share in them except those items whith
had been sold by Dharma-the appellant. I1086F l
A

Y.K. Nalavade and Ors. v. Anand G. Chavan and Ors., A.I.R.
1981 Bombay 109, approved.

Sawan Ram & Ors. v. Kala Wanti & Ors., [1967] 3 S.C.R. 687; B
~ Sitabai andAnr. v. Ram Chandra, [1970] 2 S.C.R. 1, referred to.

Narra Hanumantha Rao v. Narra Hanumayya and Ors., [1964] I
Andhra Weekly Reporter 156-1.L.R. 1966 A.P. 140, overruled.

, Gowli Buddanna v, Commissioner of Income Tax, Mysore Ban-
"'galore, (1966] 3 S.C.R. 224; Vasant and Anr. v. Dattu and Ors., A.I.R • c
.,; , 1987 S.C. 399, followed. ·

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 906
of 1984.
D
, From the Judgment and Order dated 8.7.1980 of the Bombay High
Court in Second Appeal No. 663 of 1971.

V.N. Ganpule for the Appellant.

S. V. Deshpande for the Respondent. E

The Judgment of the Court was delivered by

VENKATARAMIAH, J. The short question which arises for
consideration in this case is whether a person adopted by a Hindu
widow after the coming into force of the Hindu Adoptions and Mainte- F
ance .A:ct, 1956 (hereinafter referred to as 'the Act') can claim a share
... the property which had devolved on a sole surviving coparcener on
t e death of the husband of the widow who took him in adoption.

One Shamrao, who was governed by the Mitakshara Hindu Law
' died leaving behind him two sons Dharma (the appellant in this G
appeal) and Miragu. Miragu died issueless in the year 1928 leaving
~- behind him his widow Champabai-respondent No. 2. The properties
owned by the joint family of Dharma and Miragu passed on to the
hands of Dharma who was the sole surviving coparcener on the death of
Miragu. Under the law, as it stood then, Champabai had only a right of
maintenance in the joint family properties. The Act came into force on H
1080 SUPREME COURT REPORTS (1988] 2 S.C.R.

A 21st December, 1956. On 9.8.1968 she took Pandurang, the lstf
respondent, in adoption and immediately thereafter a suit was filed by
Pandurang and Champabai in Regular Civil Suit No: 45 ' _,f 1968 on the
file of the Civil Judge, Junior Division, Barsi for pat:.Ition and sepa-
rate possession of one-half share in the properties of the joint family of
which Dharma, the appellant herein, and Miragu were coparceners.
B Before the said adoption took place, two items of the joint famil~
properties had been sold in favour of Defendant Nos. 3 and 17 fox'
consideration. Champabai had instituted a suit for maintenance
against Dharma and obtained a decree for maintenance .. Dharma
resisted the suit on the ground that Pandurang was not entitled to
·claim any share in the properties which originally belonged to the joint
C family in view o.f clause (c) of the proviso to section 12 of the Act and\
the properties which had been sold by him in favour of third partiev
could not in any event be the subject-matter of the partition suit.

The Trial Court dismissed the suit. Pandurang and Champabai
filed an appeal against the decree of the Trial Court before the District
' D Court, Sholapur in Civil Appeal No. 222 of 1970. The learned District
a
Ju'dge allowed the appeal and passed preliminary decree for partition '
in favour of Pandurang and Champabai and separate possession orf
one-half_ share of the joint family properties except the tWo· fields
· which had been sold earlier in favour of third parties. Aggrieved by the
decree of the District Judge, the appellant filed an appeal before the~
E High Court of Bombay in Second Appeal No. 663 of 1971. The High
Court affirmed the decree passed by th_e learned District Judge follow-
ing the decision of that Court in Y.K. Nalavade and Others v. Anand
·G. Chavan and Others, A.l.R. 1981Bombay109 in which it had been
1
held that clause (c) of the proviso to section 12 of the Act was not a baff'-
to such a suit for partition. Titls appeal by special leave is filed by the
·-.. F appellant against thejuclgment of the High Court of Bombay. ·

The only q~estion urged on behalf of the appellant before us is
that the suit for partition should have been dismissed by the High
Court as the lst respond,ent- Pandurang could not divest Dharma-
the appellant of any part of the.estate which had been vested in him.
G before·the adoption in view of clause (c) of the proviso to section 12 of
the Act. Section 12 of the Act reads thus: +
"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
H. the ties of the child in the family of his or her birth shall be
D.S. AGALAWE v. P.M. AGALAWE (VENKATARAMIAH, J.] 1081

deemed to be severed and replaced by those created by the
A
'-'' 'Y adoption in the adoptive family:
-\ I
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 B
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 obligations, if any, attaching to the owner-
ship of such property, including the obligation to maintain C
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."

It is argued that Pandurang became the child of the adoptive D
mother for all purposes with effect from the date of the adoption and
only from that date all the ties of Pandurang in the family of his birth
should be deemed to have been severed and replaced by those created
by the adoption in the adoptive family and, therefore, Pandurang, the
adopted son could not claim a share in the joint family properties
r which had devolved on the appellant by survivorship on the death of E
Miragu. In support of this contention the appellant relied upon the
decision of this Court in Sawan Ram & Others v. Kala Wanti & Others,
( 1967] 3 S.C.R. 687. The facts involved in that case were these. A
widow, whose husband had died before the Hindu Succession Act
came.into force, adopted the second respondent in that case after the
commencement of the Act. On the widow's death the appellant in that F.
1
case, claiming to be the nearest reversioner of her husband, filed a suit
). ,i<Challenging the adoption. The Trial Court dismissed the suit and the
' decree of the Trial Court was affirmed by the High Court. Against the
decree of the High Court the appellant therein filed an appeal by
special leave before this Court. In that appeal, the appellant
, contended that (i) the adoption was invalid under clause (ii) of section G
6 read with section 9(2) of the Act as the son was given in adoption by
~ his mother, even though the father was alive, and (ii) since under the
Act an independent right of adoption had been given to Hindu female,
if a widow adopted a son, he could become the adopted son of the
widow only and could not be considered to be the son of her deceased
husband als_o. This Court negatived both the contentions. We are not H
A
1082 SUPREME COURT REPORTS [1988] 2 S.C.R.

concerned with the first ground for purposes of this case. On the
second contention this Court held that the provision in section 12 of
the Act made it clear that the adopted son of a Hindu female, who had /-
-
t ;::.·.
"'1i

been married, was in fact the adopted son of her husband also. That
decision was sufficient to dismiss the suit filed by the appellant as the
adopted son in that case being the nearest heir was entitled to claim
B the properties involved in the suit to the exclusion of the appellant
th.erein who was a more distant heir was not, therefore, entitled to lay \.,
claim to any part of the suit properties. In the course of the said r
decision a decision of the Andhra Pradesh High Court in Narra ,
Hanumantha Rao v. Narra Hanumayya and Others, 11964] 1 Andhra
Weekly Reporter 156-1.L.R. 1956 A.P. 140 had· been cited before
this Court. In that case the High Court of Andhra Pradesh had taken
c the view that clause (c) of the proviso to section 12 of the Act laid )
down explicity that the adoption of a son or daughter by a male or""\
female Hindu was not to result in the divesting of any estate vested in
any person prior to thi; adoption and that clause (c) also applied to the
interest which passed on by survivorship on the death of a coparcener
D to the remaining coparceners. As pointed out earlier the said question
did not actually arise in the appeal before this Court. This Court, ,
however, observed as follows:

"It may, however, be mentioned that the conclusion
which we have arrived at does not indicate that the ultimate
E decision given by the An~hra Pradesh High Court was in f
any way incorrect. As we have mentioned earlier, the ques-
tion 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
F Hindu joint family which owned the disputed property. B
died in the year 1924 and A died in 1936. By that time, th\ -{
Hindu Women's Rights to Property Act had not been enac-._..,,
ted and consequently, C, as the sole male survivor of the '
family became full owner of that property. In these circum-
stances, it was clear that after the adoption of E by D, E
G could not divest C of the rights already vested in him in
view of the special provisions 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
posthumously. Under the Shastriclaw, if a child was
H adopted by a widow, he was treated as a natural-born child
D.S. AGALAWE v. P.M. AGALAWE [VENKATARAMIAH, J.] 1083

and, consequently, he could divest other members of the A
family of rights vested in them prior to his adoption. It was
only with the limited object of avoiding any such consequ-
ence on the adoption of a child by a Hindu widow that
these provisions in clause (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 B
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 rigbts 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 C
son of her deceased husband. The second ground taken on
behalf of the appellant also, therefore, fails."

It is no doubt true that the above observations appear to support
a case of the appellant but since we are of the view that these observa-
tions were not necessary for deciding the case which was before the · D
Court they have to be held obiter dicta.

In Sitabai & Anr. v. Ram Chandra, [1970] 2 S.C.R. 1 wqich was
again decided by a bench of three Judges, this Court was called upon
t to decide a case which was more or less similar to the one before us. In
that case the facts were these. Two brothers were in possession of E
ancestral properties consisting of a house and tenancy rights of an
ordinary tenant in agricultural lands. The elder brother died in 1930
leaving a widow, the first appellant therein. The first appellant con-
tinued to live with the younger brother and had an illegitimate son by
him, the respondent therein. In March, 1958, she adopted the second
appellant, and some time later, the· surviving brother died. After his F
~' ~·putative father died, the respondent who was the illegitimate son took
!'possession of all the joint family properties. The two appellants there-
upon filed a suit for ejectment. The Trial Court decreed the suit. The
first appellate court held that a will executed by the respondent's
father (the younger brother) was valid in so far as his half share in the
house was concerned and, therefore, modified the decree by granting a G
l_ half-share of the house to the respondent. In second appeal, the High
~ Court held that the appellants were not entitled to any relief and that
their suit should be dismissed on two grounds, namely, (i) the joint
family properties ceased to have that character in the hands of the
surviving brother when he became the sole surviving coparcener, and
(2) the second appellant did not become, on his adoption, a copar- H
1084 SUPREME COURT REPORTS [1988] 2 S.C.R.
y-
A cener with his uncle in the joint family properties. In this Court the 'Ill
appellants in that appeal questioned both the conclusions reached by
the High Court. On the first contention, this Court held that the joint
family properties continued to retain their character in the hands of
the surviving brother, as the widow (the first appellant) of the elder
brother was still alive and continued to enjoy the right of maintenance
B out of the joint family properties following the decision of this Court in
Gowli Buddanna v. Commissioner of Income Tax, Mysore, Bangalore, ~
I1966] 3 S.C.R. 224. On the second contention this Court held that the
scheme of sections 11 and 12 of the Act was that in the case of adoption
by a widow the adopted child became absorbed in the adoptive family
to which the widow belonged. It further observed that though section ,
14 of the Act did not expressly state that the child adopted by a widow )
c became the adopted son of her deceased husband, it was a necessary ,,,L\
implication of sections 12 and 14 of the Act and that was why section
14 of the Act provided that when a widow adopted a child and subse-
quently married, that husband became the step-father of the adopted
child. Therefore, when the second appellant was adopted by the first
D appellant he became the adopted son of the first appellant and her
deceased husband, namely, the elder brother, and hence became a
coparcener with the surviving brother in the joint family properties,
and after the death of the surviving brother the second appellant be-
came the sole surviving coparcener ~ntitled to the possession of all the
joint family properties except those bequeathed under the will, that is,
E except the half-share of the house. Applying the above decision it has
to be held in the case befote us that the joint family properties which
belonged to the joint family consisting of Dharma-the appellant and
his brother Miragu continued to retain the character of joint family
properties in the hands of Dharma-the appellant as Champabai, the
widow of Miragu was still alive and continued to enjoy the right of
F maintenance out of the said joint family properties. It should also be
held that Pandurang-the lst respondent on adoption became the,\-'('
adopted son of Miragu and became a coparcener with Dharma-the
appellant in the joint family properties. When once he became a
member of the coparcenary which owned the joint family properties he
was entitled to institute a suit for partition and separate possession of •
G his one-half share in the joint family properties, of course, except
those which had been alienated in favour of third parties before the ~
adoption byDharma-the appellant.

The effect of section 12 of the Act again came up for considera-
tion before this Court in Vasant and Another v. Dattu and Others,
H A.l.R. 1987 S.C. 399. In that case interpreting clause (c) to the proviso
D.S. AGALAWE v. P.M. AGALAwE (VENKATARAMIAH, J.) 1085

'11' of section 12 of the Act Chinnappa Reddy, J. who spoke for the Court
A
observed that in a case of this nature where the joint family properties
had passed on to the hands of the remaining members of the coparce-.
nary on the death of one of the coparceners no vesting of the property
actually took place in the remaining coparceners while their share in
the joint family properties might have increased on the death of qne of
the coparceners which was bound to decrease on the introduction of B
one more member into the family either by birth or by adoption. In the
above connection, the Court observed thus:

"4. We are concerned with proviso (c) to section 12.
The introduction of a member into a joint family, by birth
or adoption, may have the effect of decreasing the share of C
the rest of the members of the joint family, but it certainly
does not involve any question of divesting any person of
any estate vested in him. The joint family continues to hold
the estate, but, with more members than before. There is
no fresh vesting or divesting of the estate in anyone.
D
5. The learned Counsel for the appellants urged that
on the death of a member of a joint family the property
must be considered to have vested in the remaining mem-
bers by survivorship. It is not possible to agree with this
argument. The property, no doubt passes by survivorship,
but there is no question of any vesting or divesting in the E
sense contemplated bys. 12 of the Act. To interprets. 12 to
include cases of devolution by survivorship on the death of
a member of the joint family would be to deny any practical
effect to the adoption made by the widow of a member of
the joint family. We do not think that such a result was in
the contemplation of Parliament at all." F

)'- ' We respectfully agree with the above observations of this Court
in Vasant's case (supra). The joint family property does not cease to be
joint family property when it passes to the hands of a sole sUIViving
coparcener. If a son is born to the sole surviving coparcener, the said
properties become the joint family properties in his hands and in the G
hands of his son. The only difference between the right of a manager of
~ a joint Hindu family over the joint family properties where there are
two or more coparceners and the right of a sole surviving coparcener in
respect of the joint family properties is that while the former can
alienate the joint family properties only for legal necessity or for
family benefit, the latter is entitled to dispose of the coparcenary pro- H
10/l6 SUPREME COUR\ REPORTS [1988] 2 S.C.R.

A perty as if it were his separate property as long as he remains a sole 'r ·
surviving coparcener and he may sell or mortgage the coparcenary
property even though there is no legal necessity or family benefit or
.
may even make a gift of the coparcenary property. If a son is subse·
quently born to or adopted by the sole surviving coparcener or a new
coparcener is inducted into the family on an adoption made by a
B
widow of a deceased coparcener an alienation made by the sole surviv·
ing copar~ner before the birth of a new coparcener or the induction of
a coparcener by adoption into the family whether by way of sale,
mortgage or gift would however stand, for the coparcener who is born
or adopted after the alientation cannot object to alientations made
before he was begotten or adopted.
'J
c
· The decision of the High Court of Bombay in Y.K. Nalavade's /
case (supra) which was followed by the High Court in dismissing the ~
appeal, out of which the present appeal arises, has been rightly given ..
We agree with the reasons given by the High Court of Bombay in that
decision for taking the view that clause (c) to proviso of section 12 of
D the Act would not be attracted to a case of this nature since as
observed by this Court in Vasant's case (supra) there was no 'vesting'
of joint family property in Dharma-the appellant took place on the
death of Miragu and no 'divesting' or property took place when
Pandurang-the first respondent was adopted. The decision of the
Andhra Pradesh High Court in Na"a Hanumantha Rao's case (supra)
E which takes a contrary view is not approved by us. It, therefore, stands
overruled.

The joint family properties continued to remain in the hands of
Dharma-the appellant as joint family properties and that on his adop·
tion Pandurang-the lst respondent became a member of the coparce-
F nary entitled to claim one-half share in them except those items which
had been sold by Dharma-the appellant. ~ -{

In the result this appeal fails and it is dismissed. There is no order 'i _
as to costs.

H.S.K. Appeal dismissed.