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1967 Supreme(Bom) 60
IN THE HIGH COURT OF BOMBAY
(D.V. Patel J. )
MAHADEO GOPAL MONE -Appellant.
v.
RAMESHWAR SADASHIV MONE -Respondent.
Advocates appeared
For appellant-K. V. Joshi.
For respondent No.1-N. S. Shrikhande.
The sole surviving coparcener in a joint Hindu family is the full owner of all the family properties and can alienate them absolutely, and the son adopted after the alienation cannot challenge the same.
Headnote:
HINDU LAW - ADOPTION - ALIENATION BY SOLE SURVIVING COPARCENER - EFFECT ON ADOPTED SON - SECTION 51 OF THE TRANSFER OF PROPERTY ACT, 1882 - APPLICABILITY.
Fact of the Case:
The plaintiff, as the adopted son of Damodar, sought to displace the title of Rameshwar, who had purchased half of the house from Laxman, Damodar's co-heir. The plaintiff relied on the decisions in Shrinivas Krishnarao v. Narayan Devji and Krishnamurthi v. Dhruwaraj, which held that alienations made by the absolute owner at the date of alienation were not liable to be divested by the adopted son. On the other hand, the defendant relied on the decision in Vishnu Pandu v. Mahadu Baburao, which held that the alienees from the absolute owner at the date of alienation were not liable to be divested by the adopted son.
Finding of the Court:
The court held that the plaintiff, as the adopted son, was not entitled to displace the title of Rameshwar to half the house acquired by him by his purchase from Laxman, his co-heir of Damodar. The court also held that Rameshwar was entitled to compensation for the improvements effected by him on the property.
Issues: 1. Whether the plaintiff, as the adopted son, was entitled to displace the title of Rameshwar to half the house acquired by him by his purchase from Laxman, his co-heir of Damodar? 2. Whether Rameshwar was entitled to compensation for the improvements effected by him on the property.
Ratio Decidendi: 1. The court held that the plaintiff, as the adopted son, was not entitled to displace the title of Rameshwar to half the house acquired by him by his purchase from Laxman, his co-heir of Damodar, because: * The sole surviving coparcener had full right to treat the ancestral property as if it was his own and that the adoption of the plaintiff subsequently would not affect the property which already had passed out of the family by alienation. * The principle that the sole surviving male member of a joint Hindu family is the full owner of all the family properties in spite of an unexercised power of adoption possessed by the widow of a pre-deceased coparcener, and such survivor can alienate all or any of the family properties absolutely and the son adopted after the alienation would not be in a position to challenge the same, has been accepted by the Judicial Committee and has been consistently decided. 2. The court held that Rameshwar was entitled to compensation for the improvements effected by him on the property because: * The plaintiff was not entitled to an account of the management of the estate from Rameshwar. * The plaintiff was entitled to the estate as left by Damodar. * Rameshwar was the full owner of the property and was entitled to deal with it.
Final Decision: The court dismissed the appeal and modified the decree by giving the plaintiff the option to choose whether he would pay compensation of Rs. 3,600 to Rameshwar for obtaining the share of take the value of the half share in the house as at the date of the suit.
2. First case of this High Court in this connection is Bhimaji Krishnarao V. Hanmantrao Vinayak (4). In & joint family of three brothers, Hanmantrao was the last surviving coparcener, the two others Dattatraya and Krishnaji having died leaving behind them two widows Venkubai and Rukminibai. On December 6, 1932, Hanmantrao conveyed some of the family properties to his daughters by way of gift and some other portions of his property to other defendants in the suit. On May 10, 1933, he gifted away one more property to one of his daughters. In the meantime on December 8, 1932, he had also sold some of the undisposed property to defendants Nos. 9 to 11, and later to defendants Nos. 12 to 15. On June 25, 1935, Rukminibai, the widow of Krishnaji, adopted plaintiff Bhimji who then raised the suit as the adopted son for a declaration that the alienations made by Hanmantrao were not binding on him. Relying upon the earlier decisions in Veeranna v. Sayamma (5), which was approved in Krishnamurthi Ayyar v. Krishnamurthi Ayyar (6), and also the observations in that connection in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (7), this Court held that Hanmantrao being the sole surviving coparcener had full right to treat the ancestral property as if it was his own and that the adoption of the plaintiff subsequently would not affect the property which already had passed out of the family by alienation. It has consistently been decided that the sole surviving male member of a joint Hindu family is the full owner of all the family properties in spite of an unexercised power of adoption possessed by the widow of a pre• deceased coparcener, and such survivor can alienate all or any of the family properties absolutely and the son adopted after the alienation would not be in a position to challenge the same. This principle has been accepted by the Judicial Committee in the decisions above referred to, and it is on this principle that Mr. Shrikhande relies in this decision in support of his contention that the half property in Schedule A which Rameshwar purchased from Laxman could not be affected by the present adoption.
3. Mr. Joshi relied upon the decision in Shrinivas Krishnarao v. Narayan
Devji (1) and the later decision in Krishnamurthi v. Dhruwaraj (2).
4. Before I proceed to consider these two decisions of the Supreme Court, I should refer to the decision of the Privy Council and two decisions of this Court which came to be considered by the Supreme Court to Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (1), the facts were as follows: Dhulappa had two sons Purnappa and Hanmantappa. Respondent Shankar belonged to the later branch. Purnappa died in 1907 leaving Gundappa (died 1902), Bhikappa (died 1905) and Narayan (died 1908). Bhikappa left behind him Gangubai and a son Keshav, who died in 1917. After Narayans death in 1918 leaving a widow who remarried, his ancestral and separate property devolved on Keshav. On Keshavs death respondent obtained the property from the Collector as most of it was Patilki Vatan land. Gangubai then adopted the plaintiff Anant. The Judicial Committee says (p. 238):
" .... Keshavs right to deal with the family property as his own would not be impaired by the mere possibility o
