There Mr. Justice Amir Ali held that although adoption prior to the vesting of the inheritance entails loss of the right of claiming any share in the estate of the adopted persons natural father or natural relations, yet the interest which is once vested in a son upon the death of a father is not divested by his subsequent adoption into another family.
The Madras High Court considered the various texts of Hindu Law and observed at Page.449 :
We do not think that there is anything in these passages which necessarily carries with it the idea that the adopted son is divested of property which is his own absolutely at the time of adoption. The more correct view seems to be that by the adoption the filial relationship, as the author of the Chandrika says, is extinguished in one family and is created in the other family, and that thereafter the person adopted cannot claim or take any property in his natural family by virtue of the extinguished filial relationship therein.
It then observed that it would not be justified in imposing a disability on an adopted son which was not clearly imposed by Hindu Law and that it is nowhere represented that the civil death caused to an adopted son in his natural family would also extinguish his existing proprietary rights in the natural family. It opined that the adoption of Narayya did not operate in law to divest him of his rights in the Medur Estate which had vested in him as the sole surviving member of the joint family to which he belong.
Andhra High Court
Madala Yathirajulu (Died) By His ... vs Madala China Ananthaiah ... on 2 June, 2014
This appeal is filed challenging the judgment and decree dt.02.07.1993 in OS.No.76 of 1983 on the file of the Addl. Sub- Ordinate Judge, Ongole.
2. The appellant is the plaintiff in the suit. He filed the present suit seeking partition of plaint A, B and C Schedule properties into four equal shares and for delivery of 1/4th share to him, for enquiry into future profits regarding A Schedule properties, and for costs.
BRIEF FACTS OF THE CASE :
3. The plaintiff and defendant Nos.1 to 3 are brothers and sons of M. Rangaiah. The 3rd defendant was given in adoption to Singamneni Chinna Ananthaiah (for short, Ananthaiah) on 24.3.1940. The marriage of plaintiff was performed in the year 1970. M. Rangaiah died in 1956 and his wife died in 1980.
4. The plaintiff alleged that he along with his wife were living in his in-laws house; that all the plaint schedule properties are joint family properties; that even if he was in an illatum arrangement and was staying with his in-laws, he cannot be deprived of his rights in his natural family. He therefore claimed 1/4th share in all the plaint schedule properties. He further contended that 3rd defendant, who was adopted by their maternal grand-father in 1940, continued to live with his brothers as a member of the joint family since his adoptive father died after adoption; that all the properties of the joint family as well as properties which the 3rd defendant got as an adoptive son were mixed up and treated and enjoyed as joint family properties. WRITTEN STATEMENT OF DEFENDANT NOS.1 AND 2 :
5. The defendant Nos.1 and 2 filed written statement contending that M. Rangaiahs family had nothing to do with the family of 3rd defendant who went in adoption to Ananthaiah in 1940 and was living there independently since then, after having been transplanted into his adoptive family; that the two families, i.e., that of the defendant Nos.1 and 2 on the one hand, and that of the 3rd defendant on the other hand, are separate, distinct and independent; that the plaintiff relinquished his rights in the joint family pursuant to a family arrangement in 1970 on the advice of elders and went in illatum adoption to his father-in- law, i.e., Singamneni Venkata Raghavaiah, marrying his only daughter, since he was getting fertile lands about fifteen acres; that in view of this he had nothing to do with the joint family of defendant Nos.1 and 2; and that the plaint A Schedule is not correct.
6. They however admitted that the joint family of defendant Nos.1 and 2 had only about seven acres of land WRITTEN STATEMENT OF DEFENDANT No.3 :
7. The 3rd defendant filed a separate written statement admitting that he went in adoption to Ananthaiah, their maternal grand-father, in 1940 under a registered Adoption Deed dt.24.03.1940; that he was living separately as a member of his adoptive family and succeeded to his adoptive fathers properties. He supported defendant Nos.1 and 2 insofar as their plea that plaintiff had relinquished his undivided interest in co-parcenery by way of a family arrangement at the time when he went in illatom adoption and after his marriage. He also pleaded that he never joined with plaintiff and defendant Nos.1 and 2 or with their family or mother at any time and in any manner whatsoever; and that plaint A, B and C schedule properties are not joint family properties at all and the plaintiff had no share therein.
8. The trial court framed the following issues :
1. Whether the parties are members of joint family and if the suit property is joint family property ?
2. Whether the suit is properly valued and the court fee paid is sufficient ?
3. Whether the suit is barred by limitation ?
4. Whether the plaintiff is entitled to the reliefs as prayed for ?
5. To what relief ?
9. Before the trial court the plaintiff examined PWs.1 to 4 and marked Exs.A.1 to A.13. The defendant examined DWs.1 to 3 and marked Exs.B.1 to B.25.
10. By judgment and decree dt.02.07.1993, the trial court dismissed the suit. It held that 3rd defendant was dealing with his adoptive fathers properties separately and independently while defendant Nos.1 to 3 and plaintiff were dealing with Rangaiahs properties as joint family properties; that there is no material on record to establish that the properties of Ananthaiah and Rangaiah were joint and enjoyed by him as joint family properties; that however, in view of the evidence of plaintiff that he cannot say which of the properties in the plaint schedule belonged to 3rd defendants adoptive father and which of the properties belonged to his natural father, he did not come to the Court with clean hands; that since plaintiff was unable to say specific extents of the joint family properties and specify which are the joint family properties and which are the properties of 3rd defendants adoptive father, the A, B and C schedule properties given by him are vague, ambiguous and inconsistent and it is not possible to order partition of the joint family properties in the absence of any specific evidence.
11. Aggrieved thereby, the present suit is filed.
12. It is pertinent to note that the trial court had not stated that plaintiff is not entitled to relief of partition of plaint schedule properties and that he was not a co-parcener with defendant Nos.1 and 2 and, in fact, had held that plaintiff was dealing with Rangaiahs properties as joint family properties along with defendant Nos.1 to 3. It also gave a finding that there is no material on record to show that there was any family arrangement with regard to the properties at the time of marriage of plaintiff and that plaintiff had agreed to relinquish his right in the joint family properties while going as illatom son-in- law.
13. Pending appeal, the plaintiff died and his legal representatives are brought on record. The 1st defendant/1st respondent had died pending suit and respondent Nos.5 and 6 were added as his legal representatives. The 3rd respondent also died pending appeal and his legal representatives were impleaded as respondent Nos.7 to 9.
14. In view of the admission by defendant Nos.1 and 2 in their written statement that the joint family consisting of plaintiff and defendant Nos.1 and 2 owned seven acres of land, the appellant filed the present appeal contending that at least in these seven acres of land, which is admittedly joint family property, he should have been given a share. The counsel for appellant, Sri N. Krishna Murthy, reiterated the said prayer in his oral submissions.
15. Heard Sri N. Krishna Murthy, counsel for appellants; Sri R. Srinivasa Rao, counsel for respondent Nos.2, 5 and 6; and Sri B.V. Subbaiah, senior counsel for Smt. Jyothi Eshwar, counsel for respondent Nos.7 to 9.
16. The counsel for appellants contended that since respondent Nos.1 and 2/defendant Nos.1 and 2 admitted in their written statement that seven acres of property belonged to the joint family, he is entitled to a share therein and he cannot be deprived of the same merely on the ground that the plaint schedules given by him are not correct.
17. This Court then called upon the counsel for respondent Nos.2, 5 and 6 to disclose what these joint family properties are. The counsel for respondent Nos.2, 5 and 6 filed a memo on 13.02.2014 giving details of the properties of Rangaiah. The appellant also filed a memo dt.25.02.2014 stating that the details given in the memo dt.13.02.2014 are correct and the properties mentioned therein are the only properties available for partition.
18. Thereafter, the appellants filed ASMP.No.465 of 2014 under Order VI Rule 17 CPC to amend plaint schedule properties to add A1 Schedule and also to amend the prayer in the plaint in para.13 (a) and 13 (d) after the words A Schedule as and A1 Schedule. This application was not opposed by respondents and was accordingly ordered on 07.03.2014 and the plaint schedule was amended by including A1 Schedule.
19. The issue in this appeal is now confined only to the question whether the plaintiff/appellant/his LRs are entitled to a share in these properties and, if so, to what share.
20. The defendants had not challenged the finding of the court below that plaintiff is a member of the joint family consisting of defendant Nos.1 and 2 and that he had not relinquished his share in the joint family properties when he went as an illatom son-in-law after his marriage in 1970. Therefore, since plaintiff is admitted to be a co- parcener in the joint family, it cannot be disputed that he is entitled to a share therein.
21. The counsel for appellants contended that although plaintiff had sought only 1/4th share in the joint family properties in the plaint A Schedule originally, it was on the basis that the plaint A Schedule included the properties of the adoptive father of 3rd defendant and on the basis that 3rd defendant along with plaintiff and defendant Nos.1 and 2 is also entitled to a share therein; that once A1 Schedule is introduced by amending the plaint the 3rd defendant would not get any share therein since he had gone in adoption in 1940 and, therefore, the plaintiff is entitled to 1/3rd share therein; and relied upon the decisions in Yarlagadda Nayudamma v. The Government of Andhra Pradesh and Rayaprolu Narayana Murthy v. Rayaprolu Ramakrishna Sarma and others in support of his plea that the adopted son, i.e., defendant No.3 is not entitled to a share in the co- parcenery property of the natural family after his adoption.
22. On the other hand, Sri B.V. Subbaiah, counsel for 3rd defendants LRs i.e., respondent Nos.7, 8 and 9, contended that a son given in adoption will not be divested of any property of which he had become an absolute owner prior to his adoption; that the share of the 3rd defendant got vested in him by birth when he was born as a member in the natural family; and such vested right of 3rd defendant as a co-parcener in the joint family property which he acquired by birth will not be divested after his adoption. He relied upon the decisions in Sri Rajah Venkata Narasimha Appa Row v. Sri Rajah Rangayya Appa Row and Rakhalraj Mondal v. Debendra Nath Mondal .
23. There is no dispute that 3rd defendant was adopted by his maternal grand-father Ananthaiah on 24.03.1940, i.e., before 1956 prior to the coming into force of the Hindu Adoption and Maintenance Act, 1956. Therefore, one needs to look at the law existing prior to 1956 to decide whether 3rd defendant who had a right by birth in the joint family of Rangaiah would stand divested of the share in the joint family property on his adoption, as per the law existing prior to 1956.
24. In Sri Rajah Rangayya Appa Row (3 supra) cited by the counsel for respondents, a Division Bench of the Madras High Court considered the issue whether ancestral property which had vested solely and absolutely in one Narayya who was the sole surviving member of the joint family to which he previously belonged, would be divested of the same when he was adopted. The Madras High Court observed :
The Medur estate was not the self-acquired property of Narayya, nor was it, at the time of adoption, coparcenary property in which any other person had a share. It was ancestral partible property which vested solely and absolutely in him because he was the only surviving member of the joint family to which it previously belonged.
We are aware of only one case in which the question has been actually decided, and that it is the case of Behari Lal Laha v. Kailas Chunder Laha.
There Mr. Justice Amir Ali held that although adoption prior to the vesting of the inheritance entails loss of the right of claiming any share in the estate of the adopted persons natural father or natural relations, yet the interest which is once vested in a son upon the death of a father is not divested by his subsequent adoption into another family.
The Madras High Court considered the various texts of Hindu Law and observed at Page.449 :
We do not think that there is anything in these passages which necessarily carries with it the idea that the adopted son is divested of property which is his own absolutely at the time of adoption. The more correct view seems to be that by the adoption the filial relationship, as the author of the Chandrika says, is extinguished in one family and is created in the other family, and that thereafter the person adopted cannot claim or take any property in his natural family by virtue of the extinguished filial relationship therein.
It then observed that it would not be justified in imposing a disability on an adopted son which was not clearly imposed by Hindu Law and that it is nowhere represented that the civil death caused to an adopted son in his natural family would also extinguish his existing proprietary rights in the natural family. It opined that the adoption of Narayya did not operate in law to divest him of his rights in the Medur Estate which had vested in him as the sole surviving member of the joint family to which he belong.
25. In Rakhalraj Mondal (4 supra), a Division Bench of the Calcutta High Court also observed at para.29 :
29. These texts do not to our mind suggest in any way that the son given in adoption was to be divested of property which had become his own absolutely at the time of his adoption by the simple reason that it was or formed part of the estate of his natural father before. If the intention of the said authors had been to deny previously acquired right of a son after his adoption, which has not been expressly or impliedly denied by Mitakshara or Dayabhag, we would expect more definite statement to that effect in those texts and we fully agree with the view expressed in this connexion by the High Court of Madras in 29 Mad. 437 at pp.449-452.
It followed the judgment of the Calcutta High Court in Behari Lal Laha v. Kailas Chunder Laha , which had also been followed by the Madras High Court in Sri Rajah Rangayya Appa Row (3 supra) and observed at para.35 :
35. it is neither the intention nor the effect of the verse of Manu relied upon (Ch.IX v. 142) that a son given in adoption will be divested of any property of which he had become an absolute owner by inheritance prior to his adoption. This has been the rule all through since the time of Manu Sanhitha. We find that the previous decisions of this Court Behari Lal Laha v. Kailas Chunder Laha and Shyama Charan v. Sricharan are in accord with the principle aforesaid and as such we do not find any reason to differ from them.
Both the above cases were decided prior to 1956.
26. In Yarlagadda Nayudamma (1 supra), the adoption in question took place on 20.08.1970, i.e., after 1956. In that case, the effect of the proviso (b) to Sec.12 of Hindu Adoptions and Maintenance Act, 1956 which mandated that property which vested in the adopted child before adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth was considered while agreeing that the property vests in a co-parcener by birth and hence he gets a vested right in that property by virtue of his inheritance. The Division Bench quoted a passage in the written commentary on Hindu Law of Adoption, Maintenance, Minority and Guardianship By Sri S.V. Gupte, wherein the learned author is reported to have stated under old law a coparcener given in adoption would be divested of his interest in the coparcenary property of the natural family.
27. The Division Bench of this Court did not consider the binding precedent in Sri Rajah Rangayya Appa Row (3 supra) or Rakhalraj Mondal (4 supra) or Behari Lal Laha (5 supra) which dealt with pre-1956 adoptions in the Madras and Calcutta Presidency under Mitakshara Law. It was also unnecessary for it to do so since it was anyway dealing with a case of adoption post- 1956 when the Hindu Adoptions and Maintenance Act, 1956 had come into operation and proviso (b) to Section 12, as mentioned above, protected the property which had vested in a coparcener prior to his adoption. Therefore, the said decision cannot be said to have declared that under the law prior to 1956 a coparcener given in adoption would be divested of his interest in the coparcenary property of his natural family.
28. The said decision was followed by a learned single judge of this Court in Rayaprolu Narayana Murthy (2 supra) in a case dealing with pre-1956 adoption. Again, the decisions in Sri Rajah Rangayya Appa Row (3 supra) or Rakhalraj Mondal (4 supra) or Behari Lal Laha (5 supra) were not brought to the notice of the learned Judge who decided Rayaprolu Narayana Murthy (2 supra). The learned Judge referred to the commentary in Maynes Hindu Law at Para.205 to the effect that by adoption the adopted boy stands completely removed from his natural family as regards all civil rights and obligations and loses all rights of inheritance as completely as if, he had never been born; and that he also loses rights in the coparcenary property.
29. I am, therefore, of the opinion that the said decision Rayaprolu Narayana Murthy (2 supra), having been rendered without noticing the decisions mentioned supra, is one rendered per incuriam and therefore does not lay down the correct law. The Division Bench judgment of the Madras High Court rendered in Sri Rajah Rangayya Appa Row (3 supra) being a decision of a Division Bench is binding on this Court and I would follow it.
30. In this view of the matter, it has to be held that even though 3rd defendant went in adoption in 1940, he did not lose his right in the coparcenary property in the natural family which had vested in him on the day he was born. Therefore, the 3rd defendant would also be entitled to a share in the A1 Schedule properties along with defendant Nos.1 and 2 and plaintiff. Therefore, plaintiff cannot now contend that 3rd defendant would not be entitled to a share in the A1 Schedule properties and he, i.e., the plaintiff should get 1/3rd share. In any event, plaintiff had not amended the plaint and sought 1/3rd share in the A1 Schedule properties and he has claimed only 1/4th share therein.
31. Therefore, the appeal is allowed and it is declared that plaintiff, defendant Nos.1, 2 and 3 would be entitled to 1/4th share each in the plaint A1 Schedule properties and their legal representatives who are parties in this appeal should take the shares accordingly. No costs.
32. Miscellaneous applications pending, if any, in this appeal shall stand closed.
__________________________________ JUSTICE M.S. RAMACHANDRA RAO Date : 02-06-2014
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