Sitabai v. Ramchandra

A widow adopted a son in 1958. The surviving brother of her husband died soon after, and his illegitimate son took the family properties. The Supreme Court held that the properties stayed joint family property in the surviving brother's hands. It also held that the adopted son became the son of the widow and of her deceased husband. So he became a coparcener (a member who has a birth-right share in joint family property).

Quick Revision

Parties

Sitabai — first appellant (plaintiff no. 1). She is the widow of Bhagirath. She adopted Suresh Chandra.

Suresh Chandra — second appellant (plaintiff no. 2). Sitabai adopted him, and an adoption deed was executed on 4 March 1958. He claimed the joint family properties.

Ramchandra — respondent (the defendant). He is the illegitimate son of Dulichand and took possession of the properties after Dulichand died.

Procedural History

The judgment has no numbered paragraphs. It is cited by judge and not by paragraph number.

1. The plaintiffs filed a suit for ejectment (a suit to remove a person from property) against Ramchandra. The judgment does not name the trial court or give its date.
2. The trial court decided all the issues in favour of the plaintiffs. It granted them a decree for possession of the land and the house.
3. Ramchandra appealed to the District Judge. The District Judge modified the decree. The Court's last paragraph records it as the judgment of the Additional District Judge, Indore, dated 21 April 1962 in First Appeal No. 26 of 1961. He took the view that Dulichand's will (a written wish about who gets one's property after death) was valid for half of his share in the house. So Ramchandra could claim half of the house.
4. Ramchandra filed a second appeal (a further appeal to the High Court) before the Madhya Pradesh High Court. It is Second Appeal No. 275 of 1962.
5. By judgment dated 7 September 1965, the High Court reversed the decree of the lower courts. It held that the plaintiffs were not entitled to any relief and dismissed the suit in its entirety.
6. The High Court held that Suresh Chandra became the son of plaintiff no. 1 in 1958, from the date of adoption. It held that he did not obtain any coparcenary (the narrower body of joint family members who hold shares by birth) interest in the joint family properties.
7. The High Court thought that on the date of adoption Dulichand was the sole coparcener. In its view there was nobody else to take a share, and plaintiff no. 2 had no concern with the property in Dulichand's hands.
8. The plaintiffs appealed to the Supreme Court by special leave, in Civil Appeal No. 856 of 1966. The Court heard the appeal and decided it on 20 August 1969.

Facts

1. Dulichand and Bhagirath were brothers. The properties were ancestral, according to the written statement of the defendant himself.
2. The properties were agricultural land held on tenancy rights and a house, jointly held by Bhagirath and Dulichand. Both sides admitted this.
3. Sitabai is the widow of Bhagirath, who died in 1930 before Dulichand. The Court's own text calls Dulichand the elder brother. The headnote describes the husband who died in 1930 as the elder brother. This page follows the Court's text.
4. Both parties admitted that after Bhagirath died, Sitabai lived with Dulichand. An illegitimate child, the defendant Ramchandra, was born to them in 1935.
5. Sometime before his death Sitabai adopted plaintiff no. 2, Suresh Chandra. An adoption deed was executed on 4 March 1958.
6. Dulichand died on 13 March 1958.
7. After Dulichand's death Ramchandra took possession of the joint family properties.
8. The plaintiffs brought the present suit for ejectment of Ramchandra, the illegitimate son of Dulichand, from the disputed properties.
9. Ramchandra contested the suit on two grounds. He said Dulichand had, in his lifetime, surrendered the lands to the Jagirdar, who made a fresh settlement of them with him.
10. As to the house, he said Dulichand had executed a will before his death, making a bequest of the whole house to him.

Issues Raised

The judgment does not list issues. The questions below are the ones its reasons address.

1. Did the High Court rightly hold that Suresh Chandra, when adopted by Sitabai, did not become a coparcener of Dulichand in the joint family properties?
2. Did the disputed properties keep their character as joint family properties in the hands of Dulichand, after Bhagirath's death left him the sole surviving coparcener?
3. When a widow adopts a son under the Hindu Adoptions and Maintenance Act, 1956, is the adopted son the son of her deceased husband as well as her own?
4. Were the rights of an ordinary tenant heritable under the Madhya Bharat Land Revenue and Tenancy Act, 1950?
5. Was the jurisdiction of the Civil Court barred by that Act, and could the respondent raise the point at this stage?

Arguments Contended

The reported judgment records the following contentions. It does not list the arguments in full.

For the appellants (Sitabai and Suresh Chandra):

• The High Court was wrong on the effect of a widow's adoption under Act 78 of 1956. It held that the adoptee is the son of the widow only, and not of her deceased husband.
• The Court records that this argument is well-founded and accepts it.

For the respondent (Ramchandra):

• He said Dulichand surrendered the lands to the Jagirdar, who settled them afresh with him.
• He said Dulichand left a will bequeathing the whole house to him.
• The rights of the Inamdar's tenants were not heritable under the Madhya Bharat Act. So the plaintiffs could not claim to become the Inamdar's tenants after Dulichand's death, without a contract with the Inamdar.
• Sections 63 to 88 deal with the rights of pakka tenants, and the Act has no provision on the rights of an ordinary tenant.
• The jurisdiction of the Civil Court was barred by the Madhya Bharat Land Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950 (Act no. 66 of 1950).

Court's Reasoning

The judgment is a single opinion delivered by Ramaswami, J. for the Court. The Bench is J.C. Shah, Acting C.J., V. Ramaswami and A.N. Grover, JJ.

Justice Ramaswami (for the Court)

1. Noted: The appeal is brought by special leave from the judgment of the Madhya Pradesh High Court dated 7 September 1965 in Second Appeal No. 275 of 1962.
2. Noted: The Court sets out the facts. They are the two brothers, the ancestral properties, Sitabai's widowhood, Ramchandra's birth in 1935 and the adoption of 4 March 1958. They include Dulichand's death on 13 March 1958.
3. Noted: The defendant's case was the surrender of the lands to the Jagirdar and a will of the whole house. The trial court decided every issue for the plaintiffs.
4. Noted: The District Judge accepted the will for half of Dulichand's share in the house. The High Court reversed the decree of the lower courts and dismissed the suit.
5. Noted: The High Court held that Suresh Chandra became Sitabai's son from 1958 and obtained no coparcenary interest. It thought Dulichand was then the sole coparcener, with nobody else to take a share.
6. Noted: The first question is whether the High Court rightly held that Suresh Chandra did not become a coparcener of Dulichand in the joint family properties.
7. Noted: Both parties admit that the properties were agricultural land and a house held jointly by Bhagirath and Dulichand. After Bhagirath's death Dulichand became the sole surviving coparcener.
8. Held: When Suresh Chandra was adopted, the joint family still continued to exist. The disputed properties kept their character as coparcenary properties.
9. Noted: Gowli Buddanna v. Commissioner of Income-tax, Mysore held that a joint family may consist of a single male member and widows of deceased male members. Property does not stop being joint family property merely because one coparcener represents the family.
10. Noted: In Gowli Buddanna, Buddappa died, leaving his wife, two unmarried daughters and an unmarried son, Buddanna. The question was whether income from the properties was Buddanna's individual income or that of the Hindu Undivided Family.
11. Noted: This Court held that the property had been joint family property when it came to Buddanna as sole surviving coparcener. It did not stop belonging to the joint family, and the income was assessable as the family's income.
12. Noted: The Judicial Committee of the Privy Council in Attorney General of Ceylon v. A. R. Arunachalam Chettiar said the nature of the rights of the family's members must be analysed. These include those in being and those yet to be born. Only then can one decide whether the property is the family's joint property.
13. Noted: In that case Arunachalam Chettiar and his son formed a joint family under the Mitakshara school. They were domiciled in India and had trading interests in India, Ceylon and Far Eastern countries.
14. Noted: The son died in 1934, and Arunachalam became the sole surviving coparcener. Female members of the family belonged to the Hindu undivided family. Arunachalam died in 1938, soon after the Ceylon Estate Ordinance no. 1 of 1938 came into operation.
15. Noted: Section 73 of that Ordinance exempted from estate duty property passing on the death of a member of a Hindu undivided family. The Privy Council held that Arunachalam was, at his death, a member of the same undivided family as his son.
16. Noted: The family's continuity was preserved after his death by adoption made by the widows of the family. So the property in his hands as a single coparcener was the property of the Hindu undivided family.
17. Noted: The Privy Council observed, at page 543, that Arunachalam might be called the owner, yet what he owned was still joint family property. His ownership assumed a different quality upon adoption of a son.
18. Noted: The Privy Council added that the female members have a right to maintenance out of the property. In some circumstances they have a charge for maintenance upon it. These rights continue because the property has not ceased to be joint family property.
19. Noted: The Privy Council quoted Gratiaen, J. He said it would make a mockery of the undivided family system if one surviving coparcener could turn joint property into separate property. The reduction of the coparcenary unit to a single individual is only temporary.
20. Noted: The Privy Council added that it would not be reasonable to impute to the legislature an intention to discriminate, so long as the family subsists. The distinction would be between property in the hands of a single coparcener and property in the hands of two or more.
21. Noted: The basis of that decision was that the joint family property did not cease to be so because of the "temporary reduction of the coparcenary unit to a single individual". The character of the property remained the same.
22. Held: Applying that principle, after Bhagirath's death the joint family property kept its character in Dulichand's hands. Bhagirath's widow was alive and still enjoyed her right of maintenance out of the joint family properties.
23. Noted: The next question is whether Suresh Chandra, adopted by Bhagirath's widow, became a coparcener of Dulichand in the Hindu joint family properties.
24. Noted: The High Court took the view that Suresh Chandra became the son of plaintiff no. 1 from 1958. In its view he would not become the adopted son of Bhagirath under the Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956).
25. Noted: It was argued for the appellant that the High Court erred. The High Court held that a widow's adoption under the Act makes the adoptee the adopted son of the widow only, and not of her deceased husband.
26. Held: The argument for the appellant is well-founded and must be accepted as correct.
27. Noted: Section 5(1) of Act 78 of 1956 says no adoption can be made after the Act begins, by or to a Hindu, except in accordance with that chapter.
28. Noted: Section 6 lists the requisites of a valid adoption.
    • The person adopting has the capacity and the right to take in adoption.
    • The person giving in adoption has the capacity to do so.
    • The person adopted is capable of being taken in adoption.
    • The adoption complies with the other conditions in the chapter.
29. Noted: Sections 7 and 8 deal with the capacity of a male Hindu and a female Hindu to adopt. A male Hindu of sound mind and not a minor can take a son or a daughter in adoption.
30. Noted: A married male Hindu needs the consent of his wife. A person with more than one wife needs the consent of all his wives.
31. Noted: Under section 8, a female Hindu of sound mind and not a minor has capacity to take a son or a daughter in adoption. All females except a wife have this capacity.
32. Noted: So an unmarried female, a divorcee or a widow has the legal capacity to adopt. Section 11 relates to other conditions for a valid adoption.
33. Noted: Clause (vi) of section 11 requires that the child be actually given and taken in adoption. This must be done by the parents or guardian concerned, or under their authority. The intent must be to transfer the child from the family of its birth to the family of its adoption.
34. Noted: Section 12 deems an adopted child to be the child of the adoptive father or mother for all purposes from the date of adoption. From that date the child's ties in the birth family are severed and replaced by ties in the adoptive family.
35. Noted: Section 12 has a proviso (a condition added to a section), clause (c). It says the adopted child cannot divest any person of an estate that vested in that person before the adoption.
36. Noted: Section 14(1) says a wife living at the time of adoption by a Hindu is the adoptive mother. Section 14(2) makes the senior-most wife the adoptive mother where several wives consent, and the others step-mothers.
37. Noted: Section 14(3) makes a wife whom a widower or bachelor marries after adopting the step-mother of the child. Section 14(4) makes a husband whom a widow or unmarried woman marries after adopting the step-father.
38. Noted: It is clear from the main part of section 12 and clause (vi) of section 11 that adoption severs all the child's ties in the birth family. The child ceases to have any ties with it.
39. Noted: Those ties are automatically replaced by ties created by the adoption in the adoptive family. The legal effect of giving a child in adoption is therefore to transfer the child from the family of its birth to the family of its adoption.
40. Noted: Section 14(1) shows the result. Where a wife is living, adoption by the husband makes the child the child of both spouses. Where there are two wives, the child is the adoptive child of the senior-most wife, and the junior wife is the step-mother.
41. Noted: When a widower or bachelor adopts and later marries, his wife is the step-mother. When a widow or an unmarried woman adopts and later marries, her husband is the step-father.
42. Held: The scheme of sections 11 and 12 is that, in adoption by a widow, "the adopted child becomes absorbed in the adoptive family to which the widow belonged". In plain words, the child joins the family the widow belonged to.
43. Held: The child adopted by a widow has the relationship of son with her deceased husband. The husband's other relatives are connected with the child through him.
44. Noted: For instance, the husband's brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother and father would be the sister of the adopted son.
45. Noted: In this way the adopted son becomes a member of the widow's family, with the ties of relationship to her deceased husband as his adoptive father.
46. Noted: Section 14 does not expressly state that a child adopted by a widow becomes the adopted son of her husband.
47. Held: But it is "a necessary implication of ss. 12 and 14 of the Act" that a son adopted by the widow is the son of the widow and also of the deceased husband. In plain words, the Act's scheme leads to that result even though it does not say so.
48. Noted: That implication is why section 14(4) provides that, if a widow adopts a child and later marries, her husband becomes the step-father of the adopted child.
49. Held: When either spouse adopts a child, all the child's ties in the birth family are completely severed. They are replaced by ties created in the adoptive family. The adoptive child becomes the child of both spouses.
50. Noted: This view is borne out by the Bombay High Court decision in Arukushi Narayan v. Janabai Sama Sawat.
51. Held: So Suresh Chandra, adopted by Bhagirath's widow, became the adopted son of both the widow and her deceased husband Bhagirath. He therefore became a coparcener with Dulichand in the joint family properties.
52. Held: After Dulichand's death, Suresh Chandra became the sole surviving coparcener. He was entitled to possession of all the joint family properties.
53. Held: The Additional District Judge was right in decreeing, for plaintiff no. 2, his title to the agricultural lands in village Palasia and to half the share of the house in the village.
54. Noted: The respondent contended that the rights of the Inamdar's tenants were not heritable under the Madhya Bharat Land Revenue and Tenancy Act, 1950 (Act no. 66 of 1950). So the plaintiffs could not become the Inamdar's tenants after Dulichand's death without a contract with the Inamdar.
55. Noted: Reference was made to sections 63 to 88, which deal with the rights of pakka tenants. It was argued that no provision of the Act dealt with the rights of an ordinary tenant.
56. Noted: Section 87 says an ordinary tenant is entitled to hold the land let to him. He holds on the terms agreed with the person from whom he holds, if they are not inconsistent with the Act.
57. Noted: Section 89 deals with sub-tenants. A sub-tenant may hold on agreed terms, subject to the general conditions of tenancy in section 55. In no circumstances may he lease out the land to any person.
58. Held: The Court cannot accept the argument that, under the scheme of Act 66 of 1950, the rights of an ordinary tenant are not heritable.
59. Noted: There are special provisions on heritability for a pakka tenant.
60. Held: But in the absence of any special statutory provision, "the heritability of ordinary tenancies must be governed by the personal law of the tenants concerned".
61. Noted: Section 86 of the Act contains provisions on mutation of names (recording a new holder's name). Sub-section (1) deals with a holder of land, other than an assignee of proprietary rights, who loses his rights by death, surrender, abandonment, transfer, dispossession or otherwise.
62. Noted: Under section 86(1), the village patwari must report it at once to the Tehsildar, with the name of the new holder and the grounds of his claim. A person claiming to succeed may also apply for mutation within two years from the date the last holder loses his rights.
63. Held: Section 86 applies to all classes of tenants and contemplates heritability and transferability of the rights of a tenant or a sub-tenant. The Court rejects the argument that Dulichand's rights were not heritable.
64. Noted: The respondent also urged that the Madhya Bharat Act barred the Civil Court's jurisdiction. This issue was decided against him in the trial court and in the first appellate court.
65. Held: The decision of the lower courts on that point was not challenged in the High Court. It is not permissible for the respondent to raise the question at this stage.
66. Held: For these reasons the High Court's judgment and decree of 7 September 1965 in Second Appeal No. 275 of 1962 are set aside, and the Additional District Judge's judgment and decree of 21 April 1962 are restored.
67. Held: The appeal is allowed with costs.

Authorities

• Gowli Buddanna v. Commissioner of Income-tax, Mysore (60 I.T.R. 293 (S.C.)): followed. Property that came to a sole surviving coparcener, being originally joint family property, did not cease to belong to the joint family (Ramaswami, J.).
• Attorney General of Ceylon v. A. R. Arunachalam Chettiar ([1957] A.C. 540, at p. 543): applied. The Privy Council held that property in the hands of a single coparcener stayed the property of the Hindu undivided family. The Court quotes the passage and the remark of Gratiaen, J. on a temporary reduction of the coparcenary unit (Ramaswami, J.).
• Arukushi Narayan v. Janabai Sama Sawat (67 B.L.R. 864): approved. The Court says its view, that a child adopted by either spouse becomes the child of both, is borne out by this Bombay High Court decision (Ramaswami, J.).

Also cited in footnotes: none beyond the three cases above. The footnotes only give their report citations.

Provisions mentioned

• Section 5(1), Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956): no adoption after the Act begins, by or to a Hindu, except in accordance with the chapter.
• Section 6: the four requisites of a valid adoption, covering capacity and right to adopt, capacity to give, capability of being taken, and compliance with other conditions.
• Section 7: a male Hindu of sound mind and not a minor may adopt. He needs the consent of his wife, or of all his wives.
• Section 8: a female Hindu of sound mind and not a minor may adopt. All females except a wife have capacity, so an unmarried female, a divorcee or a widow may adopt.
• Section 11, clause (vi): the child must be actually given and taken in adoption, with intent to transfer the child from the birth family to the adoptive family.
• Section 12 and proviso: the adopted child is the child of the adoptive parent for all purposes from the date of adoption. The ties with the birth family are severed. The child cannot divest anyone of an estate vested in that person before the adoption.
• Section 14(1) to (4): who is the adoptive mother, step-mother or step-father, depending on who adopts and whom they marry.
• Sections 63 to 88, Madhya Bharat Land Revenue and Tenancy Act, 1950 (Act no. 66 of 1950): the respondent said these deal with the rights of pakka tenants.
• Section 86: mutation of names when a land holder loses his rights. It applies to all classes of tenants and contemplates heritability and transferability.
• Section 87: an ordinary tenant holds the land on the terms agreed, if consistent with the Act.
• Section 89 and section 55: a sub-tenant holds on agreed terms, subject to the general conditions of tenancy in section 55, and may not lease out the land.
• Section 73, Ceylon Estate Ordinance no. 1 of 1938: exempted from estate duty property passing on the death of a member of a Hindu undivided family, as described in the Privy Council case.

Judgement

1. The appeal is allowed with costs.
2. The judgment and decree of the Madhya Pradesh High Court dated 7 September 1965 in Second Appeal No. 275 of 1962 are set aside.
3. The judgment and decree of the Additional District Judge, Indore, dated 21 April 1962 in First Appeal No. 26 of 1961 are restored.
4. As the Court records, the effect is a decree for plaintiff no. 2 declaring his title to the agricultural lands in village Palasia and to half the share of the house in the village.

Legal Principle / Ratio

Joint family property does not stop being joint family property because only one coparcener is left, while a widow of the family is alive with a right of maintenance. A son adopted by a widow under the 1956 Act becomes the son of her deceased husband too, and so a coparcener with the husband's surviving brother. Heritability of an ordinary tenancy, without a special statutory provision, follows the tenants' personal law.

Key holding on tenancy: "the heritability of ordinary tenancies must be governed by the personal law of the tenants concerned". In plain words, an ordinary tenant's rights pass to heirs under the personal law that governs them.

Critical Analysis

Analysis based on the judgment text.

The result on adoption rests on implication. The Court admits that section 14 does not expressly say the child adopted by a widow is the adopted son of her husband. It reaches that result by reading sections 11, 12 and 14 together. It notes that section 14(4) is consistent with that result. The Court states no further textual basis.

Proviso (c) to section 12 is quoted but not applied. The Court quotes the proviso that an adopted child cannot divest an estate vested before adoption. Its reasoning does not discuss that proviso. The restored decree still leaves half the house outside Suresh Chandra's share. The reporter's headnote links this to the District Judge's finding on the will.

The source text has an inconsistency on the brothers. The headnote calls the husband who died in 1930 the elder brother. The Court's text calls Dulichand the elder brother of Bhagirath. The Court's reasoning does not depend on which brother was older.

Significance

The case confirms two points in the Court's own reasoning. A sole surviving coparcener's property remains joint family property while the family continues, and a widow's adopted son is a member of her husband's family.

It also shows how a statute's scheme can fill a gap. Section 14 did not say the adopted child is the deceased husband's son, but sections 11, 12 and 14 together produced that result. On tenancies, the Court used the mutation provision to show the Act contemplated heritability.

Exam-Important Points

• Facts in one line: a widow adopted a son in 1958. After her husband's brother died, his illegitimate son took the joint family properties and the adopted son sued for ejectment.
• Joint family property keeps its character in a sole surviving coparcener's hands, relying on Gowli Buddanna and the Privy Council case. The Court noted that the widow was alive and still had her right of maintenance out of the joint family properties.
• A son adopted by a widow is also the son of her deceased husband (sections 11, 12 and 14, Act 78 of 1956). Know the step-father point in section 14(4).
• Trap: the Court says section 14 does not expressly state this. It reaches the result by necessary implication.
• Tenancy: ordinary tenants' rights are heritable. Without a special statutory provision, personal law governs heritability. Section 86 (mutation) shows heritability is contemplated.
• Jurisdiction: the respondent could not raise the Civil Court bar for the first time in the Supreme Court, because the lower courts' decision was not challenged in the High Court.
• Outcome: appeal allowed with costs, the High Court decree set aside and the Additional District Judge's decree restored.

Prepared from the full text of the judgment. The judgment has no numbered paragraphs, so it is cited by judge. The AIR and SCC citations are not in the judgment text.