KASABAI TUKARAM KARVAR & ORS. versus NIVRUTI (DEAD) THROUGH LEGAL HEIRS & ORS on 20 July 2022

Conclusion

KASABAI TUKARAM KARVAR & ORS.

v.

NIVRUTI (DEAD) THROUGH LEGAL HEIRS & ORS.(Civil Appeal No. 6076 of 2010)

JULY 20, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Hindu Succession Act, 1956 – Succession prior to the Act –Share of daughter vis-à-vis adopted son, if any – Doctrine of relationback – Applicability of – Father of the first appellant-plaintiff (sincedeceased) died in 1948 – She was born soon thereafter – Her motheradopted a son (first defendant) in 1949 – Suit filed by the plaintiffseeking partition of the plaint schedule properties was eventuallydismissed by High Court reversing the concurrent findings of theTrial Court and First Appellate Court – On appeal, held: In thepresent case, admittedly the succession opened up prior to the 1956Act coming into force – Further, there is no dispute about theadoption or the validity of the adoption – Thus, on applying thedoctrine of relation back, it would be deemed that as on the date ofthe death of their father, the first defendant was very much notionallyalive and he would become the sole coparcener – The adopted son(first defendant), being a son on applying the doctrine of relationback, would exclude the daughter-plaintiff – She would not be anheir, in view of the notional existence of the adopted son by virtueof the said doctrine – No case made out for any interference –Hindu Women’s Rights to Property Act, 1937 (XVIII of 1937).

Dismissing the appeal, the Court

HELD: 1.1 There is no dispute about the adoption or aboutthe validity of the adoption. It is, in fact, the case of the plaintiffthat the first defendant was the adopted son. On the said basis,the further conclusion is inevitable that on applying the doctrineof relation back, it would be deemed that as on the date of thedeath of their father, the first defendant was very much notionallyalive and he would become the sole coparcener. There can be novacuum or break in vesting of title on the death of a person. Thisis a case where succession opened up admittedly prior to theHindu Succession Act, 1956 coming into force. The plaintiff relied

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Aupon Section-72 of Part-I, Chapter VI-Order of Succession to Malesin the Bombay State in Mulla on Hindu Law, 23rd Edition. Thereare other heirs but they are not being referred to. The Courtmust, in the facts of this case, proceed on the basis that theadopted son (first defendant), being a son on applying the doctrineof relation back, would exclude the daughter. This result flowsBfrom the statement that the persons in serial Nos.1 to 6, namely,son, son’s son (whose father is dead) and son’s son’s son (whosefather and grandfather are both dead) inherit simultaneously. Ifthere is a son, the daughter would not be entitled to share alongwith the son. The daughter, in other words, would not be a legalCheir who would take simultaneously with the son. [Paras 11-14][906-C-F; 907-C-E]

1.2 It is, undoubtedly, true that in view of the Hindu Women’sRights to Property Act, 1937 (XVIII of 1937), the widow, inter-alia,is also recognized as an heir. There was, as on the date when theDsuccession opened, in this case in the year 1948, the daughter(the appellant) who would not have any right. The daughter wouldnot be a coparcener which she, undoubtedly, is under the presentdispensation in view of the sweeping developments which tookplace in the matter of succession which have been ushered in asa result of the Hindu Succession Act and the changes that haveEbeen engrafted therein. The plaintiff daughter would not be anheir, in view of the notional existence of the adopted son by virtueof the doctrine of relation back. As far as the effect of remarriageof the mother of the plaintiff and the first defendant is concerned,again, in view of the fact that in the presence of the son, theFdaughter may stand excluded, it would again result in no rightaccruing to the plaintiff-daughter as a result of the remarriage.The first defendant, as son, would become the sole owner of theproperty. The appellants have not made out a case for anyinterference. [Paras 15, 16 and 18][907-E-H; 908-A, B-C]

GGovind Hanumantha Rao Desai v. Nagappa aliasNarahari Laxman Rao Deshpande and Sever Others(1972) 1 SCC 515 : [1972] 3 SCR 200; ShripadGajanan Suthankar v. Dattaram Kashinath Suthankar H

and Others (1974) 2 SCC 156 : [1974] 3 SCR 474 –relied on.

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Mulla on Hindu Law 23rd Edition – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6076of 2010.

From the Judgment and Order dated 07.01.2009 of the High CourtCof Judicature at Bombay Bench at Aurangabad in Second Appeal No.299 of 2000.

Anish R. Shah, Brij Kishor Sah, Ms. Shivani Rautela, Aditya S.Jadhav, Shivaji M. Jadhav, Advs. for the Appellant.

Nachiketa Joshi, Ms. Sucheta Joshi, Ms. Himadri Haksar,Ms. Medhavi Mishra, Advs. for the Respondent.

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The Judgment of the Court was delivered by

K. M. JOSEPH, J.

By the impugned judgment, the High Court has allowed the SecondAppeal No.299 of 2000 filed by defendant No.1. The Second Appealarose out of R.C.S No.91 of 1986 filed by the first appellant (Kasabaisince deceased). The said Suit was filed seeking partition of the plaintschedule properties. The genealogy of the parties is admitted and is asfollows:- E

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A2. The first appellant (Kasabai since deceased) was the plaintiff.Nivrutti, in other words is the adopted son and referred to as the firstdefendant. The father of the plaintiff and the first defendant and otherfamily members passed away on 16[th] March, 1948. We have alreadynoticed that the father had married on three occasions. The first marriagedid not produce any issues. The second marriage produced defendantBNos. 4 to 6 in the present suit. The third marriage entered by the fatherwith Bhagubai (third wife) produced one issue, namely, Kasabai. Theplaintiff was born, in fact, after 10 days of passing away of her father. Itis again not in dispute that the first defendant was adopted by the widowon 17.11.1949 by a registered deed. There is also no dispute that theCadopted son instituted a suit claiming right over the plaint scheduleproperties impleading defendant Nos.4 to 6. Defendant Nos. 4 to 6 arestep sisters born to the second wife (Dhondabai) and their fatherKushaba. The said suit was decreed. In the appeal, there was acompromise. On the strength of the said compromise, the step sistersinstituted a suit - R.C.S. No. 53 of 1984. The said suit has been decreedDfinally as we can notice by the dismissal of the Second Appeal No.233of 2000, as can be discerned from the common judgment which is theimpugned judgment in this case also.

3. The present civil appeal arises, however, from the commonjudgment by which the High Court has allowed the Second Appeal No.299Eof 2000. The Second Appeal No.299 of 2000 arises from the suit forpartition which we have noticed was filed by the plaintiff. As far as thelis between the step-sisters (defendant Nos. 4 to 6) and the plaintiff isconcerned, it has been given a quietus by the common judgment.

4. As far as the cause of action relevant to the present civil appealFis concerned, the plaintiff proceeded on the basis that the plaint scheduleproperties are joint family properties. It is the further case of the plaintiffthat the plaintiff being the daughter was entitled to share along with theadopted son. Their mother also got a share and remarried. The result ofthe remarriage has been found by the Trial Court in favour of the plaintiffGthat her share would vest in the legal heirs. Resultantly, both the plaintiffand the first defendant (adopted son) would get 1/2 share. This viewalso found acceptance in the hands of the First Appellate Court. It is thisconcurrent finding which has been reversed by the High Court in theSecond Appeal by the impugned judgment.

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5. The High Court has found that in view of the adoption made ofa son by the widow, namely, the mother of the plaintiff and the firstdefendant, the adoption would relate back to the time of the death of thefather-Kushaba on 16.03.1948. The further consequence of the doctrineof relation back being applied was that the adopted son would emergeas the sole and exclusive heir and he would divest the plaintiff of herrights.

6. It is also found by the High Court that the case of the plaintiffthat she was in joint possession of the plaint schedule properties, did notinspire the confidence of the Court. The said version was also disbelieved.This necessarily resulted in the dismissal of the suit filed by the plaintiffafter reversing the concurrent findings.

7. We have heard learned counsel for the plaintiff and learnedcounsel for the first defendant.

8. Learned counsel for the plaintiff would raise a controversy asto the applicability of the doctrine of relation back. He would furthercontend that the impugned judgment results in the exclusion of thedaughter who was in the womb even when the father was alive andborn immediately after the death of the father. She is entitled to herrightful share. It is further pointed out with reference to what is stated inMulla on Hindu Law, 23rd Edition Section 72 of Part I, that thedaughter in the region from which the parties hailed (the Bombayregion) would get the right as a heir. It is further contended that uponremarriage of her mother, the plaintiff, as a legal heir, would get, at anyrate, a part of her right and would be entitled to a share out of the estateof the mother along with the adopted son.

9. Per-contra, the learned counsel for the adopted son (firstdefendant) supports the impugned judgment. He would submit that theHigh Court is right in applying the doctrine of relation back. Withreference to the discussion to be found in Mulla on Hindu Law 23rdEdition relied upon by the appellant, he would contend that the son wouldexclude the daughter once it is found that there is valid adoption anddoctrine of relation back applies. Even the subsequent divesting of theright of the mother would not enure to the benefit of the plaintiff who isa daughter in view of the subsequent adoption which relates back to thedate of death of the father.

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A10. As far as the doctrine of relation back goes, we need onlynotice decisions of this Court in Govind Hanumantha Rao Desai versusNagappa alias Narahari Laxman Rao Deshpande and Sever Others,(1972) 1 SCC 515 and Shripad Gajanan Suthankar versus DattaramKashinath Suthankar and Others, (1974) 2 SCC 156. We may onlyfurther expatiate by referring to paragraphs 6, 7 and 9 of ShripadBGajanan Suthankar and Others (Supra).

“6. It is established law that the adoption by a widowrelates back to the date of the death of the adoptive father,which, in this case, took place in 1921. Indeed, the complexityof the present case arises from the application of this legalfiction of “relation-back” and the limitations on the amplitudeof that fiction vis-a-vis the partition of 1944, in the light of therulings of the various High Courts and of the Judicial Committeeof the Privy Council, and of this Court, the last of which isGovind v. Nagappa. According to the appellant, the rights ofthe adopted son, armed as he is with the theory of “relation-back”, have to be effectuated retro-actively, the guidelineswherefor are available from the decided cases. It is no doubttrue that C

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“when a member of a joint family governed byMitakshara law dies and the widow validly adopts a son tohim, a coparcenary interest in the joint property is immediatelycreated by the adoption co-extensive with that which thedeceased coparcener had, and it vests at once in the adoptedson”. (See Mulla on Hindu Law, 13th Edn.p. 516.)

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The same author, however, points out that:

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“the rights of an adopted son arise for the first time on hisadoption. He may, by virtue of his rights as adopted son, divestother persons in whom the property vested after the death ofthe adoptive father, but all lawful alienations made by previousholder would be binding on him. His right to impeach previousalienations would depend upon the capacity of the holder whomade the alienation as well as on the nature of the action ofalienation. When the holder was a male, who had unfetteredright of transfer, e.g., the last surviving member of a joint family,the adopted son could not impeach the transfer. In case of G

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females who had restricted rights of transfer even apart fromany adoption, the transfers would be valid only when they aresupported by legal necessity”. (ibid, pp. 516-517; para 507.)

“An adopted son is bound by alienations made by hisadoptive father prior to the adoption to the same extent as anatural-born son would be. (ibid; p. 517: para 508.)

7. It is settled law that the rights of an adopted son spring intoexistence only from the moment of the adoption and all alienationsmade by the widow before the adoption, if they are made forlegal necessity or otherwise lawfully, such as with the consent ofthe next reversioners, are binding on the adopted son. The narrowbut important question that arises here is as to whether the adoptionmade in 1956 can upset the partition of 1944, validly made underthe then conditions, and the gift by Mahadev of propertiesexclusively set apart to him and, therefore, alienable by him, couldbe retro-actively invalidated by the plaintiff on the application ofthe legal fiction of “relation-back”. It is unlikely that a similarquestion will arise hereinafter since Section 4 of the HinduSuccession Act, 1956 has practically swept off texts, rules andthe like in Hindu Law, which were part of that law in forceimmediately before the commencement of the Act, if provisionshave been made for such matters in the Act. Since on the husband’sdeath the widow takes an absolute estate, questions of the typewhich engage us in this appeal will be stilled for ever. Of course,we need not investigate this aspect of the matter as the presentcase relates to a pre-statutory adoption. Even Section 12 of theHindu Adoptions and Maintenance Act, 1956, makes it plain thatan adopted child shall be deemed to be the child of his or heradoptive father or mother for all purposes with effect from thedate of the adoption.

9. The plaintiff, as the adopted son, for secular and spiritualpurposes continues the line of the adoptive father and when thewidow adopts, the doctrine of “relation-back” makes sonshipretroactive from the moment of death of the late husband. Thenew entrant is deemed to have been born on the date of death ofthe adoptive father. Supposing there was an undivided family inexistence when the adoptive father died, how far can the legalfiction of anterior sonship disrupt the doings between notional birth AB

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and actual adoption? Mulla sums up the result of the rulings thus:(p. 496)

“If, therefore, there was a coparcenary in existence whenthe adoptive father died, then whether it came to an end by thedeath of the last surviving coparcener or by subsequent partitionBamong the remaining members, an adoption validly made by thewidow of the deceased coparcener would have the effect ofdivesting the estate in the hands of the heir to the last survivingcoparcener in the first case and of putting an end to the partitionin the second and enabling the adopted son to claim a share in thefamily properties as if they were still joint.”C

11. In this case, there is no dispute about the adoption or about thevalidity of the adoption. It is, in fact, the case of the plaintiff that the firstdefendant was the adopted son. On the said basis, the further conclusionis inevitable that on applying the doctrine of relation back, it would bedeemed that as on the date of the death of their father, the first defendantDwas very much notionally alive and he would become the sole coparcener.It is indisputable that there can be no vacuum or break in vesting of titleon the death of a person. We must further bear in mind that this is a casewhere succession opened up admittedly prior to the Hindu SuccessionAct, 1956 coming into force.

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12. The learned counsel for the plaintiff, no doubt, relied uponSection-72 of Part-I, Chapter VI-Order of Succession to Males inthe Bombay State in Mulla on Hindu Law, 23rd Edition which isreproduced below:-

72. Order of succession in cases governed by Mitakshara-FThe following is the order of succession to males among sapindasin the Bombay State in cases governed by Mitakshara:

(1-6) Son, son’s son (whose father is dead) and son’s son’sson (whose father and grandfather are both dead). These inheritsimultaneously. Under Act XVIII of 1937, the widow, theGpredeceased son’s widow, and the widow of a predeceased sonof a predeceased son, are also recognised as heirs.

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(7) Daughter

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In the Bombay State, daughter do not take as joint tenantswith benefit of survivorship, but they take as tenants-in-common.Further, a daughter in that State does not take a limited estate inher father’s property, but takes the property absolutely. Thus, ifHindu governed by the Bombay School dies leaving two daughters,each daughter takes an absolute interest in a moiety of her father’sestate, and holds it as her separate property, and on her death hershare will pass to her own heirs as her stridhana.

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13. There are other heirs but they are not being referred to. Wemust, in the facts of this case, proceed on the basis that the adopted son(first defendant), being a son on applying the doctrine of relation back,would exclude the daughter. This result flows from the statement thatthe persons in serial Nos.1 to 6, namely, son, son’s son (whose father isdead) and son’s son’s son (whose father and grandfather are both dead)inherit simultaneously.

14. We would hold that if there is a son, the daughter would not beentitled to share along with the son. The daughter, in other words, wouldnot be a legal heir who would take simultaneously with the son. Theexample which, in fact, has been set out and which we have extractedwould only be applicable in a situation where there were only daughtersand no son.

15. It is, undoubtedly, true that in view of the Hindu Women’sRights to Property Act, 1937 (XVIII of 1937), the widow, inter-alia,is also recognized as an heir. There was, as on the date when thesuccession opened, in this case in the year 1948, the daughter (theappellant) who would not have any right. The daughter would not be acoparcener which she, undoubtedly, is under the present dispensation inview of the sweeping developments which took place in the matter ofsuccession which have been ushered in as a result of the HinduSuccession Act and the changes that have been engrafted therein. Theplaintiff daughter would not be an heir, in view of the notional existenceof the adopted son by virtue of the doctrine of relation back.

16. As far as the effect of remarriage of the mother of the plaintiffand the first defendant is concerned, again, in view of the fact that in thepresence of the son, the daughter may stand excluded, it would againresult in no right accruing to the plaintiff-daughter as a result of the AB

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Aremarriage. In other words, the first defendant, as son, would becomethe sole owner of the property.

17. Aid is sought to be drawn from the terms of the compromiseentered into between the adopted son (first defendant) and the step-sisters in a proceeding to which the plaintiff was admittedly not a party.BWe are not even called upon to decide a case that estoppel, as such,would arise in favour of the plaintiff.

18. In view of the aforesaid discussion, the appellants have notmade out a case for any interference. The appeal stands dismissed.

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Pending application(s), if any, stand disposed of.

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Divya Pandey

(Assisted by : Deepak Panwar, LCRA)

Appeal dismissed.

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