Bombaybench High Court
Case Details
2024:BHC-AUG:5301 sa-425-1993 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.425 OF 1993WITH CA/123/1994 WITH CA/4065/1993 WITH CA/15336/2015Smt. Housabai W/o. Sadashiv Javak,Deceased Through L.Rs.Soluchana W/o. Raosaheb Kharade,Deceased Through L.Rs. (Expired on 24.5.2003)Pandharinath S/o. Raosaheb Kharade,Deceased Through his L.Rs. (Expired on 11.7.1998)1. Smt. Ranjana W/o. Pandharinath Kharade, Age-51 Years, Occup - Household, R/o. Ranjangaon, Tal- Parner, District- Ahmednagar.2. Sow. Smita W/o. Snil Shelar, Age- 28 Years, Occup - Household, R/o. Mahadevnagar, Near Dahireshwar Temple, Dahirgaon, Tal- Haveli, District- Pune-4.3. Sow. Shewta W/o. Rajendra Jadhav, Age-28 Years, Occup - Household, R/o. Gunawadi, Tal- Baramati, District- Pune.4. Sow. Snehal W/o. Mahesh Kaalbhor, Age- 25 Years, Occup - Service & Household, R/o. Khopoli, Tal- Khopoli, District- Raigad.5. Kum. Trupti D/o. Pandharinath Kharade, Age- 22 Years, Occup - Student, R/o. Ranjangaon, Tal- Parner, District- Ahmednagar.6. Ranjit S/o. Pandharinath Kharade, Age- 21 Years, Occup - Student, R/o. As Above....Appellants VERSUS1. Smt. Bhagirthibai w/o Eknath Javak, Age 46 years,
Legal Reasoning
sa-425-1993 judg.odt(2)2. Chandrakant Eknath Javak, Age 28 yrs.3. Suresh Eknath Javak, Age 22 years,4. Rajesh Eknath Javak, Age 12 years, minor guardian mother deft.No.1 Bhagirathibai Eknath Javak.5. Jayashri d/o Eknath Javak, Age 2 years, minor guardian mother deft. No.1 Bhagirthibai Eknath Javak.6. Sakharam Vithu Javak, Age 60 years,7. Rajaram Vithu Javak, Age 61 years,8. Bajirao Vithu Javak, Age 50 years,9. Rangnath Vithu Javak, Age 51 years,10. Dinkar Bhagwanta Javak, Age 41 years,11. Sopan Rambhau Javak, Age 40 years, (Dismissed)12. Bapu Malhari Javak, Age 46 years, All agriculturists, all resident of Ranjangaon Taluka Parner, Dist. Ahmednagar. ...Respondents ...Mr. S.S. Jadhavar, Advocate for Appellants.Mr. B.A. Dhengle, Advocate for the Respondent Nos.2 to 4.Mr. V.S. Bedre, Advocate for Respondent No.5 (Absent). ... CORAM : S.G. MEHARE, J.RESERVED ON : 20.12.2023PRONOUNCED ON : 12.03.2024JUDGMENT :-1.The legal heirs of the legal heir of the original plaintiff,Housabai, are pursuing this second appeal against the judgment anddecree of the learned 3rd Additional District Judge, Ahmednagar,passed in Regular Civil Appeal No.446 of 1987 dated 19.06.1993. sa-425-1993 judg.odt(3)2.The appellant will be referred to as the 'plaintiff', and therespondents will be referred to as the 'defendants'.3.The plaintiff's case in brief was that her husband died in1934, leaving behind her and a daughter. He had landed properties,described in para No. 1 of the plaint (those will be referred to as "thesuit lands"). They had no male child. Therefore, on 19.06.1946, sheadopted the son of her stepbrother and named him Eknath. She wasresiding with her adopted son and in joint possession of the suitlands. Her adopted son started harassing her. She turned old. Hence,she went to reside with her daughter for 8 to 10 years. She wastreating her with love. Defendant No. 1, in collusion with the revenueofficer, got recorded 3 aane and 2 pai shares in her name. She had ½share in the suit lands. Deceased Eknath sold Gut no. 147 todefendants Nos. 6 to 9 on 25.05.1968 and Gut No. 135 to defendantNos. 10 to 12 on 30.10.1971. Those sale deeds are not binding onher. The defendants did not give her a share in the income from jointproperties. They did not care about her. Gut Nos. 392, 150, and 81were in possession of the defendants Nos. 1 to 5. She soughtpartition to the defendant Nos. 1 to 5 in April 1976. They denied.Hence, she filed a suit for partition, separate possession, the share inthe income from suit fields for the last three years and a declarationthat the sale deeds executed in favour of the defendant Nos. 6 to 12are not binding on her. sa-425-1993 judg.odt(4)4.Defendant No.1 resisted the suit for herself and herchildren. She admitted that the plaintiff's husband owned the suitlands. He died in 1934. However, she denied the succession and herpossession. She did not deny the adoption of her husband. Sheadmitted that her husband Eknath died on 09.11.1975. She deniedher ½ share in the suit lands. The plaintiff had only the right ofmaintenance over the suit lands. The plaintiff had sold SurveyNos.147, 149 and 150 in 1950 and enjoyed its consideration for herown. Deceased Eknath had filed the suit, stating that the plaintiff hadno exclusive right to sell those lands. The said suit was decreed. TheHigh Court maintained the said judgment and decree. The decree wasexecuted, and deceased Eknath got exclusive rights and titles overthose suit lands. In those fields, the plaintiff had no right. Theyprayed to dismiss the suit. In the alternative, they have pleaded that ifthe Court holds her share, the loss suffered by them in securing theproperty sold by her be adjusted.5.The learned Court of the First Instance and the FirstAppellate Court dismissed her suit.6.This Court, by order dated 31.08.1994, admitted thesecond appeal, considering Ground Nos.4 and 5 are substantialquestions of law. Those grounds are reproduced below :"(4)Whether the Courts below acted illegally and contrary tolaw by not holding that deceased Housabai who died on11/1/1982 after the death of her adopted son Eknath on sa-425-1993 judg.odt(5)9/11/1975 has got a share in the suit property as per Schedule-Iof the Hindu Succession Act, 1956.(5)The Courts below should have held that since the adoptiveson Eknath died prior to his mother Housabai, as per the HinduSuccession Act, Housabai shall get a share in the suit property,and the present appellant, Sulochana, shall get the share ofdeceased Housabai."7.Learned counsel for the appellants has vehementlyargued that the theory of relate back does not apply. He would submitthat as per Section 14 of the Hindu Succession Act 1956 (for short ‘Act1956’), she was not a limited owner. She, being the widow, wasentitled to equal share. He relied on the case of KrishnamurtiVasudeorao Deshpande and Another Vs. Dhruwaraj, A.I.R. 1962 SC59, and argued that the adoption does not affect the rights acquiredprior to the adoption. He also relied on the case of KesharbaiJagannath Gujar by her heirs Vs. State of Maharashtra and Another,1981 Bom.C.R. 362 and argued that Section 4 of the Act 1956 laysdown the overriding effect of the succession Act, so far as ShastricHindu Law is concerned. Relying on the case of Punithavalli AmmalVs. Minor Ramalingam and Another, 1970 (1) SCC 570, he arguedthat the property vested in the widow before the Act 1956, shebecame the absolute owner under Section 14. The rights conferred onHindu women under Section 14(1) of the Act are not restricted orlimited by any rule of Hindu law. Therefore, the property she holds is sa-425-1993 judg.odt(6)under her full ownership. He also relied on the case of DanammaAlias Suman Surpur Vs. Amar, A.I.R. 2018 S.C. (Civil) 1957 andargued that daughters have rights as of a son by birth. He prayed thatthe deceased was entitled to have a share in the property. Therefore,her daughter is also entitled to inherit her share.8.Per contra, learned counsel for respondents Nos.2 to 4submits that Housabai sold three fields in 1950. Eknath contested thesuit and got those sale transactions cancelled. She had limited interestas she inherited the property before 1937. Referring to Section 12(c)of the Hindu Marriage Act, he argued that it was a relevant provisionof law to determine the issue. To bolster his arguments, he relied onthe case of Bhagirathibai Chandrabhan Nimbarte and Another Vs.Tanabai Ramchandra Zanzad (Dead) and Ors, 2013 (2) Mh.L.J. 502and argued that when her husband died in 1937, his widow/theplaintiff had no coparcenary right in the ancestral property. Therefore,neither the widow nor her daughter get any share in the property.Only the son becomes the full owner of the property. He also relied onthe case of Krishnamurti Vasudeorao Deshpande (supra) and arguedthat it favours Eknath. He argued that the theory of relating backwould apply. There is no substance in the appeal; hence, the appealbe dismissed.9. The arguments of both learned counsels revolve aroundthe theory of relate back. Neither party disputes the adoption of the sa-425-1993 judg.odt(7)deceased Ekanth. The learned counsel for the respondent submits thatwhen Eknath was adopted, Shastric Hindu Law was in force, whichhad introduced the theory of relate back. Applying this rule of relateback, the legal heirs of Eknath claim that soon after, the adopted sondivested his adopted mother of the estate.10. The facts of the case are that after the death of herhusband in 1934, the plaintiff and her daughter were the only heirs.Thereafter, the Hindu Womens’ Right to Property Act, 1937 (for short‘the Act 1937’) was enacted. The plaintiff adopted a son in 1946. Theycontinued to be joint until the Act 1956 was enacted and thereafteralso. Before discussing the rights of women under the Act 1937, itwould be appropriate to discuss its repeal by Section 31 of the Act1956.11. The Act 1937 was repealed by Section 31 of the Act1956. However, Section 31 of the Act 1956 was repealed by repealingand amending Act 1960 ( 58 of 1960).12.The first question is, did repealing the Act 1937 bySection 31 of the Amending Act 1960 take away the rights of a personacquired under the repealed Act?13. Section 7 of the General Clauses Act provides for therevival of repealed enactments. This Section lays down that if anyenactment is repealed wholly or partially and if it is desired that any sa-425-1993 judg.odt(8)part of the repealed enactment be revived, then it shall be necessaryto state those facts specifically. 14. In the case of Vidyaben Vs. Jagdishchandra NandshankarBhat, AIR 1974 GUJ 23, it has been held that under Section 7 of theGeneral Clauses Act, in the absence of any specific word stating thatsuch an Act would be revived, the result would be that the Act whichwas repealed by Section 31 of the Act cannot revive even Section 31itself was repealed. 15. The Madras High Court in the case of Kuppathammal Vs.Sakthi @ Thayammal and another, AIR 1957 MAD 695, held that therepeal effected by Section 31 of Act XXX of 1956 does not in any wayimpair the rights conferred on the widows of the deceased by Act of1937. The repeal effected by Section 31 of Act XXX of 1956 would notaffect the rights of widows to enjoy those rights which they acquiredor accrued to them. The Madras High Court referred to Section 6 ofthe General Clauses Act, which provides for the effect of repeal. It hasbeen provided therein that any subsequent Act repeals any enactmentmade or to be made after the commencement of the said Act, unless adifferent intention appears, the repeal shall not affect the previousoperation of enactment so repealed or anything duly done or sufferedthereunder; or affect any right, privilege, obligation or liabilityacquired or accrued under any enactment so repealed. sa-425-1993 judg.odt(9)16. The Andhra Pradesh High Court, following the view ofKuppathammal, has reiterated that the repeal of the Act 1937 bySection 31 of the Act 1956 does not extinguish the right of a womanshe acquired in the property of her husband under Act 1937. Her rightis saved by Section 6 of the General Clauses Act. It has been furtherobserved that in Act 1956, saving the rights conferred by Act 1937,rights derived by a widow of a last man holder of property underSection 3 of the said Act are protected by Section 6 of General ClausesAct, which preserves rights which have already been acquired oraccrued under repeal enactment. The repeal effected by Section 31 ofthe Amending Act, 1960 did not destroy or take away the rightalready acquired by a widow under Act 1937 before the Act of 1956came into force.17. Let's now turn to the position of women before the Act of1937. Under old Hindu Law, the widow had no right except for themaintenance in the property of the joint family of which her husbanddied as a member. Even in the case of separate property, if herhusband left a male issue, then her only right was one ofmaintenance.18. The Act of 1937 made a substantial change in her rights.Section 3 of the said Act was most important. By Section 3(1), thewidow or widows of the Hindu died intestate, leaving separateproperty were entitled to the share as a son. The widow of a sa-425-1993 judg.odt(10)predeceased son also had a right to inherit in like manner as a son ifthere is no son surviving of such predeceased son. Sub-section 2 wasapplied to a Hindu governed by any school of law other thanDayabhaga or by customary laws. In such case, a Hindu dies having atthe time of his death an interest in a Hindu joint family property, hiswidow, subject to Sub-section (3) had the same interest as he himselfhad. In other words, sub-section (1) of section 3 dealt with a separateproperty of Hindu dies intestate, and sub-section (2) dealt with theHindu joint family property subject to the provisions of sub-section(3). Sub-section (3) was provided for the devolution of interest onHindu womens’ limited interest, known as Hindu Women's Estate. Shehad the same right to claim partition as a male owner. The Legislaturegave her full rights in the property that her husband had without anylimitation except that she got the estate as a widow. Such rights werenot given in lieu of maintenance or only for the purpose ofmaintenance. As discussed above, sub-section (1) deals with propertyover which a Hindu had power of disposition by testament. Suchproperty means the separate property where the Hindu is governed bythe Mitakshara school. 19. The Hon'ble Supreme Court in the case of Potti LaxmiPerumallu Vs. Potti Krishnavenemma A.I.R. 1965 Supreme Court 825held that the interest the widow acquired is neither by survivorshipnor by inheritance but a special type of interest, which is the creation sa-425-1993 judg.odt(11)of the statute. By Act 1937, the widow got a right to seek partitionafter the death of her husband as she is the male coparcener. In thecase of separate property, the widow, along with the sons, wasentitled to the same share as a son.20.The substantial change in the inheritance of women inthe property by the Act 1937 gave solace and stability to the widows.They were entitled to inherit the family and separate properties of herhusband.21. After the adoption in 1946, the adopted son and motherwere residing jointly after the Act 1956, and Hindu Adoption andMaintenance Act 1956 (‘The Adoption Act’ for short) came into force.The adopted son predeceased the plaintiff/mother. Then, she filed asuit for partition. The plaintiff claimed that before the adoption, sheacquired ½ share under the right she acquired under Act 1937.Therefore, the plaintiff was entitled to the same share as a son asprovided under Section 3(1) of the Act of 1937. The defendants havea defence that on adoption, her son divested his mother in the estate.Hence, she had no right to claim partition.22. The whole story changed after the adoption. Before theAdoption Act, no female could adopt a son for herself. It was for herdeceased husband. In Shastric law, on the adoption of a son by awidow, the adopted son was divesting his adopted mother of the sa-425-1993 judg.odt(12)estate. However, in the case at hand, the adoption was after the Act1937. Hence, the following question fall for consideration :(i)Whether the doctrine of 'Relation back' applies to this case andwhat is the effect of adoption after enactment of the adoption Act.23. The doctrine of Relation back under old Hindu Law statesthat if a Hindu widow adopts a son after the death of her husband,then the adopted son will be deemed to have been adopted on thedeath of her husband. The theory was against the rule that a propertycannot be divested once vested. In old Hindu Law the adopted sonwas divesting his adopted mother of the estate of his adoptive father.She had a right to maintenance only.24. Both counsels referred to the judgment of Krishnamurti(supra), wherein the case of Shrinivas Krishnarao Kango Vs. NarayanDevji Kango, AIR 1954 SC 379 was referred to, and on the basis ofthe said judgment, the principle from the observations made in thesaid case were deduced, that an adopted son is entitled to take indefeasance of the rights acquired prior to adoption on the ground thatin the eye of law, his adoption relates back, by a legal fiction, to thedate of the death of his adoptive father. He, being put in the positionof posthumous son, as a preferential heir, an adopted son (a) divestshis mother of his estate of his adoptive father (b) divests his adoptivemother of the estate she gets as an heir of her son who died after thedeath of her husband, a coparcenary continues to subsist so long as sa-425-1993 judg.odt(13)there is existence a widow of coparcener capable of bringing a soninto existence by adoption; and if the widow made an adoption, therights of the adopted son are the same as if he had been in existenceat the time when his adoptive father died and that his title ascoparcener prevails as against the title of any person claiming as heirto the last copercener. 25. The facts of Krishnamurthi's case were thatKrishnamurthi was the grandson of Krishnabai, who had succeeded tohis father's property as full owner. Her brother predeceased her father,leaving behind his widow. The widow then adopted a son. He hadfiled a suit against the grandsons of the daughter of the first person.Under this premise, the Hon'ble Supreme Court dealt with the rightsof the adopted son by applying the doctrine of relating back. TheHon'ble Supreme Court held that the principle of relation back cannotbe applied when the claim made by the adopted son relates not to theestate of his adoptive father but to that of collateral. With reference tothe claim with respect to the estate of collateral, the governingprinciple is that inheritance can never be in abeyance and that once itdevolves on a person who is the nearest heir under the law, it isthereafter not liable to be divested. When succession to the propertiesof a person other than the adoptive father is involved, the principleapplicable is not a rule of relation back, but the rule that inheritanceonce vested, could not be divested. This principle was extracted from sa-425-1993 judg.odt(14)the case of Shrinivas Krishnarao Kango Vs. Narayan Devji Kango, AIR1954 SC 379 . 26. In the case of Shriniwas (supra), the Hon'ble Apex Court,in para 17, observed that :“thus far, the scope of principle of relation back is clear. It appliedonly when the claim made by the adopted son relates to the estateof his adoptive father. This estate may be definite and ascertainedas when he is the sole and absolute owner of the properties, or itmay be fluctuating as when he is a member of the joint Hindufamily, in which the interest of the coparceners is liable to increaseby death or decrease by birth. In either case, it is the interest ofthe adoptive father which the adopted son is declared entitled totake as on the date of his death. The point for determination nowis whether this doctrine of relation back can be applied when theclaim made by the adopted son relates not to the estate of theadoptive father but of collateral. The theory on which thisdoctrine is based is that there should be no hiatus in, thecontinuity of line of adoptive father. That, by its very nature, canapply only to him and not to his collateral.In Oxford dictionary, the word “collateral” is defined asmeaning ‘descended from the same stock but not in the same line’.The reason behind the rule that there should be a continuity in linedoes not warrant its extension to its collateral. Nor is there anyauthority until we came to the decision in AIR 1943 PC 196 (a),which applied the theory of relate back to the properties inheritedfrom the collateral. With reference to them, the governing principlewas that inheritance can never be in abeyance, and that once itdevolves on a person who is the nearest heir, it is thereafter not liableto be divested. “ sa-425-1993 judg.odt(15)27. The facts of the case of Shrinivas (supra) were thatSiddopant and Krishnarao were the brothers and the members of ajoint undivided family. Krishnarao predeceased to Siddopant leavingbehind a widow Rukminibai. Siddopant died leaving him survivinghis son. His son died leaving behind widow. His widow adopted ason. He had three sons who were the defendants in the suit. Thewidow of Krishnarao adopted Shrinivas. He had filed a suit forpartition claiming half share in the family property. The trial Courtheld that the plaintiff was entitled to half share in the agriculturalfields on the ground that they belong to the family as ancestralproperties. However, the High Court held, that had not beenestablished. Under this premise, the Hon’ble Supreme Court held thatthe doctrine of relates back could not be applied and finally modifiedthe decree of the trial Court adding the remaining parties forpartition. It was a judgment before enactment of the Act 1956 andHindu Adoption and Maintenance Act. 28. The question in Krishnamurthi's case differs from thequestions in the case at hand. Here, the adopted mother and adoptedson remained joint in property and the suit was filed after the Act1956. This suit is directly between the adopted son and the adoptedmother. 29. Section 12 of the Adoption Act speaks of the effect ofadoption. The adopted child is deemed to be a child of his adoptive sa-425-1993 judg.odt(16)father and mother for all purposes with effect from the date of theadoption, and from such date, all ties of the child in the family of hisbirth shall be deemed to be severed and replaced by those created byadoption in the adoptive family. In other words, adoption is thetransplantation of a new family. An adopted child gets all the rights inthe adopted family as if a child born into their family. The rights areconferred upon him subject to certain conditions. Clause (c) of itsproviso clause is relevant to the facts of the case, which reads thus :"Provided that,(c) the adopted child shall not divest any person of any estatewhich vested in him or her before the adoption.”30. Its a significant proviso that does not go away with thefiction of relation back under the Old Hindu Law. The Adoption Actabrogated the rule of Mitakshara law that on an adoption made by awidow, the adopted son becomes entitled to share of his deceasedadoptive father, which has passed by survivorship to the othermembers of the coparcener. The rights of the adopted son, whichrested on the theory of relate back, can no longer be claimed by him.The said proviso lays down that adopting a child does not result indivesting any estate vested in any person before the adoption. Section14 of the Act 1956 conferred absolute ownership to a widow, and thechild taken in adoption by her could not divest what had already beenvested in her. sa-425-1993 judg.odt(17)31.Section 4 of the Adoption Act is about the overridingeffect of the Act by which the text rule or interpretation of Hindu Lawor any custom or uses as part of that law in force immediately beforethe commencement of this Act ceased the effect with respect to anymatter for which provision has been made in the said Act. On readingthis Section with proviso (c) of Section 12, it could safely be said thatOld Hindu Law on adoption before the codification divesting themother has no effect. The said proviso has protected the rights of allpersons vested in them before the Adoption Act. However, Section 30of the Adoption Act saved the adoptions before the Adoption Act. Inother words, the Adoption Act did not affect the adoptions beforeenactment of the said Act. The law has taken care of his inheritance inthe property of the adopted family. His rights to inherit the propertieshave been protected under the 1956 Act. 32. The Hon’ble Supreme Court in the case of DaniraijiVrajlalji Vs. Vahuji Maharaj Shri Chandraprabha, AIR 1975 SC 784held that the intendment and effect of Section 4 of the Adoption Actare to abrogate the existing law or custom in so far as it is replaced bythe law enacted in the statute. If a provision is made in the statutethat operates on the same area as in the existing law or custom, thestatutory provision must prevail over it, and custom must be givenaway. sa-425-1993 judg.odt(18)33.This Court in the case of Yamunabai and others Vs. RamMaharaj Shreedhar Maharaj Pandit and others, AIR 1960 Bom, 463dealt with a similar issue of adoption by widows before the enactmentof the Act 1956. In that case, the plaintiff was the widow of the lastmale holder of the Inam property. It was recognized as Navawali ofproperty of the former Kolhapur State. However, the Kolhapur Statehad rules that a widow could not adopt without obtaining sanctionfrom the then Government of the State of Kolhapur. It was anadoption without a sanction. However, the adopted son obtained theex post facto sanction after the suit was filed. In that premise, theprovisions of Sections 4, 14 and 5 of the Act 1956 were dealt with. Ithas been held that the estate possessed by the plaintiff, which hasbecome absolute by virtue of Section 14 of the Act 1956, was notliable to be divested on the grant of the ex facto sanction to adoptionof the defendant No.1 i.e. the adopted son. The question referred tothe Larger Bench was " Whether by reason of Section 14 of the HinduSuccession Act, which converts the limited estate into full ownership,in case of joint family property, does the adopted son take interest bybirth i.e. by civil birth, the date of his adoption? 34. The learned counsel for respondents relied on the case ofPunithavalli (supra). However, the ratio of the said case was based onits facts. Hence, it does not assist the respondent. He also relied onthe case of Bhagirathibai (supra). The facts of the said case were sa-425-1993 judg.odt(19)that Tanabai was the daughter of Vithobha Nimbarte and Radhabhai.Tanabai filed a suit for declaration that she was entitled to sharethrough her mother/Radhabai. Chandrabhan was the son of Vithobha,and Bhagirathibai was the widow of Chandrabhan. Chandrabhan diedin 1952, leaving behind his widow and daughter. The Court of thefirst instance decreed the suit partly, holding that Tanabai was entitledto 1/3rd share in the suit property. In a first appeal preferred byBhagirathibai, the first appellate Court held that after the death ofChandrabhan, the mother/Radhabai would get half share and thewidow Bhagirathibai would get half share. Thus, they became thejoint owners. Upon the death of Radhabai, her daughter Tanabai andWanmala, the daughter of Chandrabhan, will be entitled to 1/4thshare in the suit property. It has been further held that after the deathof Vithoba on 23rd January 1934, his widow Radhabai was notentitled to any share in the property of Vithoba as per the positionprevailing prior to coming into force of the Hindu Women's Right toProperty Act, 1937. It has also been held that the mere fact thatRadhabhai was not in possession of the suit property along withBhagratibai, the widow of Chandrabhan after 1952 was not sufficientto attract provisions of Section 14 of the Hindu Succession Act. TheSection is not intended to validate the illegal possession of a femaleHindu, and it does not confer any title on mere trespasser as has beenheld by the Apex Court in the case of Eramma Vs . Veerupana and sa-425-1993 judg.odt(20)others, AIR 1966 SC 1879 . The Court answered the substantialquestion of law that upon the death of Chandrabhan, Bhagirathibai,his widow, became the absolute owner of the suit property, andTanabai, the sister of Chandrabhan did not acquire any right in theestate of Chandrabhan. Both the Courts below have committed anerror of law in holding that Tanabai had any share in the estate eitherby herself or through her mother/Radhabai. The facts of this case aredifferent from the facts of the case at hand.35.He also relied on the case of M. Sivadasan (Dead)through Lrs. and others appellate Vs. A. Soudamini (Dead) throughLrs and others, 2023 SCC Online SC 1078. The trial Court haddismissed the suit, holding that the land and house sought to bepartitioned were agricultural lands. The appellate Court, as well asthe High Court, upheld the judgment of the Trial Court. The facts ofthat case were that the property was originally belonging to SamiVaidyar. On his death in 1942, it devolved on his male successor sonSukumaran. Sami Vaidyar's daughters claimed property rights throughtheir mother, Choyichi, who was the widow of Sami Vaidyar. Theyclaimed that their mother, who died in 1962, had a right, thoughlimited under the Hindu Mitakshara Law as well as by virtue of theAct 1937, which blossomed into a full-fledged right under Section 14(1) of the Act of 1956. In this premise, it has been held that the landin question undoubtedly has coconut trees on it, and was a garden sa-425-1993 judg.odt(21)land. It has been held that since the mother of the plaintiff was neverin possession of the property, she would not get the right underSection 14(1) of the Act of 1956. It must be noted that the suitproperty was in Kerala State. 36.After the said Act 1937 came into force, controversyarose about whether the said Act covered and applied to agriculturallands. The Act 1937 nowhere defined the term "property'. It was alsoopposed on the grounds that no limited right in agricultural propertycan be said to be given to a widow woman. The said conflict aboutthe exclusion of agricultural land from the purview of Act 1937 wassettled by a decision of the Federal Court in A.I.R. 1941 Federal Court72. The Federal Court answered the questions framed in the said caseabout regulating the succession to agricultural land and devolution bysurvivorship of property other than the agricultural land that the Actof 1937 and amended Act of 1938 do not operate to regulatesuccession to agricultural land in the Governer's provinces; and do notoperate to regulate devolution by survivorship of property other thanthe agricultural land. The subject of devolution by survivorship ofproperty other than the agricultural land is included in entry no.7 oflist 3, concurrent list.37.After the said decision, many States, includingMaharashtra but not Kerala, amended the Act 1937 and passed an sa-425-1993 judg.odt(22)extension bill to make Act 1937 applicable to agricultural land in itsambit.38.The Hon'ble Supreme Court in the case of Vaijanath andors Vs. Guramma and ors, AIR 1999 (SC) 555, while examining thescope of the Act 1937 viz a viz Hyderabad (Application of CentralActs) 1952, held that there is nothing in the 1937 Act that wouldexclude the agricultural land. Thus, it was held that the judgment ofthe Federal Court shall not apply and the said Act shall also bedeemed to include the agricultural land.39.In view of the verdict of the Hon'ble Supreme Court inthe case of Vaijanath (supra) and the amendment to the 1937 Act bythe State of Maharashtra, the Court is of the view that the case ofSivadasan (supra) is distinguishable on facts as the Act 1937 was notamended at the relevant time. 40. In this case, after these two laws were passed, theadoptive mother and son were living under one roof. The adopted sonpredeceased the adopted mother. The suit for partition was filed afterthe death of the adopted son i.e. after 28th August, 1978. It is evidentthat till 1972, during the lifetime of the adoptive son, she was inactual joint possession of the suit land. It is also evident that she soldblock No. 392 to Gulam Hussainbhai Bhaijanbhai Manner on16.05.1947. It was after the adoption of a son. The record reveals thatthe adopted son had filed a suit for cancellation of that sale deed and sa-425-1993 judg.odt(23)a declaration that it was not binding upon him. The said suit wasregistered as Special Civil Suit No. 14 of 1957. The Civil Judge, SeniorDivision, Ahmednagar, had decreed the said suit in 1959. The saiddecree was executed and the adopted son had recovered itspossession. The said suit was not directly against the adoptive mother.It was again a third person. Therefore, the said judgment does notsupport the adopted son that he divested his adoptive mother fromthe estate of his adopted father. 41. As discussed above, after the death of the husband of theadoptive mother in 1934, she and her daughters were the exclusiveheirs. Mother had acquired the rights in the suit properties. However,introducing the adopted son in preference to their right does notaffect the right acquired by the adopted mother. In view of theoverriding effect of section 4 of the Act 1956 and the Adoption Act,the Rules of succession and the effect of the adoption governed underthe Shastric Hindu Law ceased to have an effect on the matter ofsuccession and the effect of the adoption.42. The law is well settled on not divesting the vested right ofany person after the adoption. Clause (C) of the proviso to Section 12of the Adoption Act was a shield protecting the rights vested in theadopted mother. After the Act 1956, the estate in possession of thewidow before that Act was her absolute property. sa-425-1993 judg.odt(24)43.Therefore, Section 12 (c) of the Adoption Act wouldapply to determine the rights of the adopted son, adopted mother andsister.44.It has been argued for the defendants that the plaintiffdid not possess the land when the suit was filed. Therefore, she cannot claim the suit lands as absolute properties. For getting theabsolute entitlement of the properties, possession of women over theproperties acquired before or after the commencement of Act 1956was sine qua non. It is admitted that after the Act 1956 she waspossessing the suit lands. However, 8 to 10 years before the suit, shewent to reside with her daughter. She was never legally dispossessedfrom the suit lands. 45.The Hon'ble Supreme Court in Gummalapura TagginaMatadakotturuswami Vs. Setra Veeravva and others, AIR 1959 SC 577held that the possession might have been either actual or constructiveor any form recognized by law, but unless the female Hindu, whoselimited estate in the disputed property is claimed to have beentransformed into an absolute estate under this particular Section, wasat least in such possession, taking the word 'possession' in its widestconnotation when the Act came into force, the Section would notapply. The law has been laid down that to claim the absolute titleunder Section 14(1) of the Act 1956, two conditions, possessing theproperty and transforming it into absolute estate, are to be satisfied. sa-425-1993 judg.odt(25)The mother had acquired the rights under Section 3 (1) of the Act1937. However, the facts of the case as discussed above, after thedeath of her husband before coming into force the Act 1937, sheacquired the absolute right, and before the Adoption Act, she adopteda son.46.They carried the property of her husband and adoptivefather after the commencement of the Act 1956. By adoption, shecreated shares. She died after her adopted son. When she adopted ason, her share was reduced to half. 47.In a changed scenario of the death of the adoptedmother, her sole daughter, who had no right to share before the Act1956 was pursuing the suit as her legal representative/ heir. Sheclaimed through her deceased mother. She also died before theHindu Succession (Amendment Act), 2005. Therefore, it is objectedthat her legal representatives are not entitled to inherit her right. Thesuit is also liable to be dismissed on this ground.48. The learned counsel for the appellant relied on the caseof Gummalapura (supra). He submitted that under Order VII Rule 7and under Order XLI Rule 27 of the C.P.C., the appellate Court isentitled to consider any change in the law.49.He further argued that the original plaintiff was inpossession of the suit lands. He submits that if it is assumed thatthough on the date of filing of the suit she was residing separately sa-425-1993 judg.odt(26)with her daughter at her place, she had constructive possession,which covers the word ‘possess' in Section 14 of the Act 1956. TheHon'ble Supreme Court took an identical view in the above case. 50.In view of the facts, the Court concludes that the motherhad acquired a right as a son in her husband's properties as per theAct 1937. However, their shares have been divided after the adoption,which is the birth of a new descendant. The plaintiff/the adoptedmother of the deceased adopted son has half share in the suit lands. 51.It was the defence of the defendant that the adoptedmother had transferred some land to a third person after theadoption. The adopted son had filed a suit against those persons andrestored those lands. Therefore, the plaintiff was not entitled to claima share in those properties. However, there was no material before theCourt to believe that those were the self-acquired properties of thedeceased adopted son. On the contrary, those properties were againblended into a joint family property. Therefore, there is no substancein their defence that those fields are liable to be excluded frompartition.52.The learned counsel for the plaintiff relied on the case ofGummalapura (supra), and argued that the appellate Court is entitledto take into consideration any change in the law. He emphasized thatin view of Section 14 of the Act 1956, the plaintiff became the sa-425-1993 judg.odt(27)exclusive owner of her share. Therefore, her half-share was herabsolute property. 53.The legal heir of the plaintiff had no case that shebequeathed or transferred her right to her daughter. In the absenceof any testamentary disposition, it is presumed that she died intestate.The daughter of the original plaintiff died on 24.05.2003. She wasclaiming through her mother. Her husband also died on 11.7.1998.Hence, her daughters and only son were brought on record as herlegal representatives. The law is settled that the daughter has a sharein the property of the mother, and her legal representatives are alsoentitled to her share.54.In view of the three deaths i.e. of the mother, son anddaughter, the suit properties would be divided amongst the legal heirsof the son and daughter. The mother and a son had equal shares.After the death of the mother her half share would be divided equallybetween the daughter and a son. The son predeceased mother.Hence, mother would get 1/6th share in the share of her son. In viewof this, the legal heirs of the son and daughter would get the shares incommon as follows :(a)Mother and son would get half share each. (b)Since son died, mother would get 1/6th share in his half share.The said 1/6th share would be divided equally between the son and sa-425-1993 judg.odt(28)the daughter that comes to 1/12th share each. That share would beadded to half share of the mother. Its fraction is as follows :1 + 1 = 12 + 2 = 14 = 7 2 12 24 24 12(c)The mother’s 7/12th share would be divided equally betweenthe daughter and son that comes to ;7 x 1 = 7 12 2 24The legal heirs of deceased daughter would get 7/24th share incommon.(d)The five legal heirs of son would get 5/12th share + 7/24thshare. Its calculation is as follows :5 + 7 12 24= (5 x 24) + (12 x 7) 24 x 12 = (120) + 84 = 204 = 102 = 51 = 17 288 288 144 72 24 = 17 + 7 = 24 = 1 24 24 24On calculating the shares as above, the legal heirs of the sonwould get 17/24th share and the legal heirs of the daughter would get7/24th share.55.It is not disputed that the deceased son sold field GatNo.147 and 135 to defendants nos.6 to 12. Those were the joint sa-425-1993 judg.odt(29)family properties. Therefore, those sale deeds do not bind the plaintiffto the extent of her share. In such a situation, normally, all the landsare to be blended for partition. Where, the properties for partition aremore than the land sold subject to its quality and potential, such soldproperties should be excluded. It is not a universal rule, but a possiblerule.56.The plaintiff had also claimed the share in the incomefrom the lands for the last three years. However, she did not provethe actual loss of income. Therefore, her prayer for the share in theincome derived from the suit lands cannot be granted. 57.In view of the above, the first substantial question of lawis answered that the plaintiff/Housabai had half share in the suitlands and question No.2 is answered that the legal heirs of thedaughter of the plaintiff, Housabai, would get the share asdetermined above.58.In view of the discussion on the law and facts, the Courtconcludes that both courts erred in law in denying share to thedeceased mother in the suit land. Therefore, the impugned judgmentand decrees are liable to be quashed and set aside.59.Before parting this Court appreciate the sincereassistance rendered by Shri R.N. Mehare, District Judge-1, Buldhanain determining the shares in fractions.60.Now the Court passes the following order : sa-425-1993 judg.odt(30)ORDER(I)The appeal is partly allowed.(II)The judgment and decree of the learned Civil Judge SeniorDivision passed in Special Civil Suit No. 232 of 1978 dated 30.11.1983,and the judgment and decree of 3rd Additional District Judge passed inRegular Civil Appeal No. 446 of 1987 dated 19.06.1993, are quashedand set aside.(III)The suit is partly decreed.(IV)It is declared that the legal heirs of the daughter, Sulochanabai areentitled to 7/24th share in common and the legal heirs of the son Eknath,are entitled to 17/24th share in common and separate possession of thesuit lands. (V)It is further declared that the sale deeds dated 27.05.1968 of GatNo.147 and 30.10.1971 of Gat No.135 executed by the deceased son infavour of defendant nos.6 to 9 and 10 to 12 are not binding upon theplaintiffs, to the extent of their share.(VI) The decree be drawn up accordingly.(VII)A precept under Section 54 of the C.P.C. be sent to the Collectorfor partition and separation of the land by metes and bounds.(VIII)No order as to costs.(IX)R and P be returned to the learned Court of first instance.(X)Pending civil applications stand disposed of. (S.G. MEHARE, J.)Mujaheed//