Judgment

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 Maintenance Act, 1956 (hereinafter referred to as the Act) can claim a share in the property which had devolved on a sole surviving co-parcener on the death of the husband of the widow who took him in adoption.

2. One Shamrao, who was governed by the Mitakshara Hindu Law died leaving behind him two sons Dharma (the appellant in this 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 co-parcener 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 21st December, 1956. On 9-8-1968 she took Pandurang, the 1st respondent, in adoption and immediately thereafter a suit was filed by Pandurang and Champabai in Regular Civil Suit No. 457 of 1968, on the file of the Civil Judge, Junior Division, Barsi for partition and separate possession of one-half share in the properties of the joint family of which Dharma, the appellant herein, and Miragu were coparceners. Before the said adoption took place, two items of the joint family properties had been sold in favour of Defendants Nos. 3 and 17 for 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 family in view of clause (c) of the proviso to section 12 of the Act and the properties which had been sold by him in favour of third parties could not in any event be the subject-matter of the partition suit.

3. The Trial Court dismissed the suit. Pandurang and Champabai filed an appeal against the decree of the Trial Court before the District Court, Sholapur in Civil Appeal No. 222 of 1970. The learned District Judge allowed the appeal and passed a preliminary decree for partition in favour of Pandurang and Champabai and separate possession of 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 High Court of Bombay in Second Appeal No. 663 of 1971. The High Court affirmed the decree passed by the learned District Judge following the decision of that Court in Y. K. Nalavade v. Ananda. G. Chavan, AIR 1981 Born 109 in which it had been held that clause (c) of the proviso to section 12 of the Act was not a bar to such a suit for partition. This appeal by special leave is filed by the appellant against the judgment of the High Court of Bombay.

4. The only question urged on behalf of the appellant before us is that the suit for partition should have been dismissed by the High Court as the 1St respondent-Pandurang could not divest Dharma-the appellant of any part of the estate which had been vested in him 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 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) the child cannot marry any person whom he or she could not have married if he or she had continued in the 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 ownership of