Back
1943 Supreme(SC) 35
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ROMER, LORD PORTER, LORD CLAUSON, SIR GEORGE RANKIN AND SIR MADHAVAN NAIR.
ANANT BHIKAPPA PATIL, MINOR, BY GANGABAI KOM BHIKAPPA - Appellant
Versus
SHANKAR RAMCHANDRA PATIL - Respondents
On appeal from the High Court at Bombay.
Decided On : July. 26. 1943.
Solicitor for appellant:Harold Shephard. Solicitors for respondent: T. L. Wilson & Co,
A valid adoption by the widow of a pre-deceased coparcener, even after the death of the sole surviving coparcener, divests the interest of a collateral heir and entitles the adopted son to both joint and separate properties of the last male owner.
Headnote:(A) Bombay Hereditary Office Act, 1874 and Bombay Act V of 1886 - Mitakshara Hindu Law - Adoption by widow of pre-deceased coparcener after death of sole surviving coparcener - Power of a widow to adopt does not depend upon the question of vesting or divesting of the estate - Adoption is valid and takes effect even if the coparcenary had ended upon the death of the last surviving male member - A Hindu family cannot be finally brought to an end while it is possible in law to add a male member to it - An adopted son is the continuator of his adoptive father's line and the adoption has a retrospective effect.
(B) Succession - Divesting of estate - Adoption by the widow of a pre-deceased coparcener or the mother of the last surviving coparcener can divest the interest of a collateral heir who had inherited the property from the last surviving coparcener - The interest of a male member is not static but fluctuates by survivorship, birth, or adoption.
(C) Separate Property - If an adoption constitutes the adopted person as the nearest heir of the last male holder, such right extends to both joint family property and separate property acquired or inherited by the last male holder.
Facts of the case:
A suit was filed by an adopted son to recover certain hereditary office properties and lands. The properties were governed by a special rule of succession where females were postponed to qualified male members. The last surviving coparcener died unmarried, and the properties vested in a remote collateral heir. Subsequently, the widow of a pre-deceased coparcener adopted a son. The lower court decreed possession to the adopted son, but the High Court set it aside, holding that adoption after the termination of the coparcenary could not divest the heir of the last surviving coparcener.
Findings of Court:
The adoption was held to be valid. The court found that the death of the last surviving coparcener does not prevent the addition of a new male member by adoption. Such adoption divests any title based merely on inheritance from the last surviving coparcener, regardless of whether the property was joint family property or the separate property of the last male owner.
Issues: Whether a valid adoption made by the widow of a pre-deceased coparcener after the death of the sole surviving coparcener can divest the property (both joint and separate) from the heir of the last surviving coparcener.
Ratio Decidendi: The court reasoned that the power of a widow to adopt is independent of the vesting of the estate. Since an adopted son continues the line of the adoptive father retrospectively, the family is not extinct as long as adoption is possible. Therefore, the interest of the last surviving coparcener is subject to the possibility of adoption, and a subsequent adoption by a qualified widow divests the collateral heir's interest.
Result: Appeal allowed.
Legal Category Hierarchy
-
family law
-
hindu law
-
adoption
- rights of adopted son
-
succession
- watan property
-
adoption
-
hindu law
-
practice and procedure
-
appellate procedure
- leave to appeal
-
evidence
- genuineness of documents
-
appellate procedure
Judgement
Appeal (No. 59 of 1940) from a decree of the High Court (December 16, 1937) varying a decree of the Subordinate Judge of Dharwar (November 22, 1933).
The following facts are taken from the judgment of the Judicial Committee The appellant, Anant, brought the suit out of which this appeal arose in 1932 to recover certain watan properties from the respondent, Shankar. to whom possession had been given in 1928 by order of a Revenue Court. The properties in suit were the patilki right and the patilki watan lands of the village of Alnavar in the district of Dharwar, in the Province of Bombay. Those properties were governed by the Bombay Hereditary Office Act (Bom. Act III. of 1874) as amended by Bom. Act V. of 1886, which imposed on them a special rule of succession whereby every female, other than the widow of the last male owner, was postponed to every male member of the watan family qualified to inherit. No other feature special to watan property was relied on or discussed in the courts in India or mentioned in the printed cases lodged by the parties on this appeal; and their Lordships were not called- upon to consider whether on other grounds the law applicable to watandars or watan property varied from the ordinary HINDU LAW .
The family were governed by the Mitakshara, and the pedigree table hereunder given represented it sufficiently for the purposes of the case
Dhulappa
|
| |
Punnappa d. 1901 Hanamantappa
| |
| Gundappa d. 1902 | Narayan d. 1908 | Ramchandra |
| Bhikappa d. 1905 = Gangabai | | Shankar defendant | Hanamant | Babu
| Keshav d. 1917 | Anant adopted 19030 plaintiff
Dhulappas sons, Punnappa and Hanamantappa, separated long ago—in 1857, and the Alnavar watan
with its lands went to Punnappa. Narayan, one of his three sons, separated from him in his lifetime, taking as his separate share two plots or parcels of land represented by revenue survey numbers 173/2 and 174/1 which were included in the lands now claimed by the appellant. Thereafter Punnappa died in 1901, and his son Gundappa in 1902, so that in 1905 Bhikappa and his-minor son Keshav were the only coparceners in the joint family. In 1905 Bhikappa died, leaving his widow Gangabai and his son Keshav. In 1908 Narayan died, leaving a widow but no issue, and the widow having in or about that year remarried, the two plots which were his separate property devolved by inheritance on Keshav as being his nearest reversioner at the date of the remarriage. Keshav lived till 1917, when he died unmarried. At that date his nearest heir was the respondent Shankar, a somewhat remote collateral, who obtained possession of the suit properties from the collector in 1928 despite Gangabais opposition. Thereupon, in 1930, Gangabai adopted the appellant Anant as a son to her deceased husband Bhikappa, and in 1932, as next friend of her adopted son, brought the suit which was now before the Board.
The learned trial judge gave the appellant a decree, dated November 22, 1933, for possession with mesne profits from the date of suit; also a declaration that he was the lawfully adopted son of Bhikappa, and that as such he was the heir of the last male owner, Keshav. The High Court (Rangnekar and Wadia JJ.) on December 16, 1937, set aside the order for possession and mesne profits, and qualified the declaration by adding the words " except as regards the watan property "which has already vested in the defendant." They made no specific reference to the two plots which had belonged to Narayan, and the order for possession and mesne profits was set aside without any exception being made as to those plots. The ground of the High Courts decision was that as the coparcenary which existed at the time of Bhikappas death ( 1905) had come to an end on the death of Keshav ( 1917), and the family property had then vested in his heir; the subsequent adoption ( 1930) by Bhikappas widow, though valid, would not revive the co-parcenary or divest Keshavs heir, the adopting widow not being herse
