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PETITIONER:

DHARMA SHAMRAO AGALAWE

Vs.

RESPONDENT:

PANDURANG MIRAGU AGALAWE & ORS.

DATE OF JUDGMENT22/02/1988

BENCH:

VENKATARAMIAH, E.S. (J)

BENCH:

VENKATARAMIAH, E.S. (J)

SINGH, K.N. (J)

CITATION:

1988 AIR 845 1988 SCR (2)1077

1988 SCC (2) 126 JT 1988 (1) 376

1988 SCALE (1)365

ACT:

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 purpose.

Hindu Law-Mitakshara School-Joint family property

devolving 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 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.

HEADNOTE:

%

A person had two sons, the appellant-Dharma and another

Miragu. Miragu died issueless in 1928 leaving behind his

widow, respondent No. 2. The Joint family property devolved

on the appellant as sole surviving coparcener. The appellant

disposed of certain properties. In 1956 the Hindu Adoptions

and Maintenance Act, 1956 came into force. In 1968 the widow

took respondent No. 1 in adoption. Respondent Nos. 1 and 2

filed a suit for partition and separate possession of one-

half share in the property of the joint family. Trial Court

dismissed the suit. Respondent Nos. 1 and 2 filed an appeal

which was allowed by the District Judge and a preliminary

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

appellant was that respondent No. 1 could not divest him of

any part of the estate which had been vested in him before

the adoption of respondent No. 1 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 be

joint family property when it passes to the hands of a sole

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surviving coparcener.

1078

If a son is born to the sole surviving coparcener, the said

properties become the joint family properties in his hands

and in the 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 coparceners 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 property as if it were his

separate property as long as he remains a sole 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 subsequently born to or adopted by the sole

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 alienations made before he was

begotten or ado