Civil Appeal No 906 of 1984
From the Judgment and Order dated 871980 of the Bombay High Court in Second Appeal No 663 of 1971
VN Ganpule for the Appellant
SV Deshpande for the Respondent
The Judgment of the Court was delivered by VENKATARAMIAH J
The short question which arises for consideration in this case is whether a person adopted by a Hindu widow after the coming into force of the hereinafter referred to as the Act  can claim a share in the property which had devolved on a sole surviving coparcener on the death of the husband of the widow who took him in adoption
One Shamrao who was governed by the Mitakshara Hindu Law died leaving behind him two sons Dharma the appellant in this appeal and Miragu
Miragu died issueless in the year 1928 leaving behind him his widow Champabai respondent No 2
The properties owned by the joint family of Dharma and Miragu passed on to the hands of Dharma who was the sole surviving coparcener on the death of Miragu
Under the law as it stood then Champabai had only a right of maintenance in the joint family properties
The Act came into force on 1080 21st December 1956
On 981968 she took Pandurang the 1st respondent in adoption and immediately thereafter a suit was filed by Pandurang and Champabai in Regular Civil Suit No 457 of 1968 on the file of the Civil Judge Junior Division Barsi for partition and separate possession of one half share in the properties of the joint family of which Dharma the appellant herein and Miragu were coparceners
Before the said adoption took place two items of the joint family properties had been sold in favour of Defendant Nos 3 and 17 for consideration
Champabai had instituted a suit for maintenance against Dharma and obtained a decree for maintenance
Dharma resisted the suit on the ground that Pandurang was not entitled to claim any share in the properties which originally belonged to the joint family in view of clause c of the proviso to section 12 of the Act and the properties which had been sold by him in favour of third parties could not in any event be the subject matter of the partition suit
The Trial Court dismissed the suit
Pandurang and Champabai filed an appeal against the decree of the Trial Court before the District Court Sholapur in Civil Appeal No 222 of 1970
The learned District Judge allowed the appeal and passed a preliminary decree for partition in favour of Pandurang and Champabai and separate possession of one half share of the joint family properties except the two fields which had been sold earlier in favour of third parties
Aggrieved by the decree of the District Judge the appellant filed an appeal before the High Court of Bombay in Second Appeal No 663 of 1971
The High Court affirmed the decree passed by the learned District Judge following the decision of that Court in YK Nalavade and Others vs Anand G Chavan and Others AIR 1981 Bombay 109 in which it had been held that clause c of the proviso to section 12 of the Act was not a bar to such a suit for partition
This appeal by special leave is filed by the appellant against the judgment of the High Court of Bombay
The only question urged on behalf of the appellant before us is that the suit for partition should have been dismissed by the High Court as the 1st respondent Pandurang could not divest Dharma the appellant of any part of the estate which had been vested in him before the adoption in view of clause c of the proviso to section 12 of the Act
Section 12 of the Act reads thus 12
An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be 1081 deemed to be severed and replaced by those created by the adoption in the adoptive family Provided that a the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth b any property which vested in the adopted child before the 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 c The adopted child shall not divest any person of any estate which vested in him or her before the adoption
 It is argued that Pandurang became the child of the adoptive mother for all purposes with effect from the date of the adoption and only from that date all the ties of Pandurang in the family of his birth should be deemed to have been severed and replaced by those created by the adoption in the adoptive family and therefore Pandurang the adopted son could not claim a share in the joint family properties which had devolved on the appellant by survivorship on the death of Miragu
In support of this contention the appellant relied upon the decision of this Court in Sawan Ram  Others vs Kala Wanti  Others  The facts involved in that case were these
A widow whose husband had died before the Hindu Succession Act came into force adopted the second respondent in that case after the commencement of the Act
On the widow s death the appellant in that case claiming to be the nearest reversioner of her husband filed a suit challenging the adoption
The Trial Court dismissed the suit and the decree of the Trial Court was affirmed by the High Court
Against the decree of the High Court the appellant therein filed an appeal by special leave before this Court
In that appeal the appellant contended that i the adoption was invalid under clause ii of section 6 read with section 92 of the Act as the son was given in adoption by his mother even though the father was alive and ii since under the Act an independent right of adoption had been given to Hindu female if a widow adopted a son he could become the adopted son of the widow only and could not be considered to be the son of her deceased husband also
This Court negatived both the contentions
We are not 1082 concerned with the first ground for purposes of this case
On the second contention this Court held that the provision in section 12 of the Act made it clear that the adopted son of a Hindu female who had been married was in fact the adopted son of her husband also
That decision was sufficient to dismiss the suit filed by the appellant as the adopted son in that case being the nearest heir was entitled to claim the properties involved in the suit to the exclusion of the appellant therein who was a more distant heir was not therefore entitled to lay claim to any part of the suit properties
In the course of the said decision a decision of the Andhra Pradesh High Court in Narra Hanumantha Rao vs Narra Hanumayya and Others 1964 1 Andhra Weekly Reporter 156 ILR had been cited before this Court
In that case the High Court of Andhra Pradesh had taken the view that clause c of the proviso to section 12 of the Act laid down explicity that the adoption of a son or daughter by a male or female Hindu was not to result in the divesting of any estate vested in any person prior to the adoption and that clause c also applied to the interest which passed on by survivorship on the death of a coparcener to the remaining coparceners
As pointed out earlier the said question did not actually arise in the appeal before this Court
This Court however observed as follows It may however be mentioned that the conclusion which we have arrived at does not indicate that the ultimate decision given by the Andhra Pradesh High Court was in any way incorrect
As we have mentioned earlier the question in that case was whether E after the adoption by D the widow of B could divest C of the rights which had already vested in C before the adoption
It is significant that by the year 1936 C was the sole male member of the Hindu joint family which owned the disputed property
B died in the year 1924 and A died in 1936
By that time the Hindu Women s Rights to Property Act had not been enacted and consequently C as the sole male survivor of the family became full owner of that property
In these circumstances it was clear that after the adoption of E by D E could not divest C of the rights already vested in him in view of the special provisions contained in clause c of the proviso to section 12 of the Act
It appears that by making such a provision the Act has narrowed down the rights of an adopted child as compared with the rights of a child born posthumously
Under the Shastriclaw if a child was adopted by a widow he was treated as a natural born child 1083 and consequently he could divest other members of the family of rights vested in them prior to his adoption
It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in clause c of the proviso to section 12 and section 13 of the Act were incorporated
In that respect the rights of the adopted child were restricted
It is to be noted that this restriction was placed on the rights of a child adopted by either a male Hindu or a female Hindu and not merely in a case of adoption by a female Hindu
This restriction on the rights of the adopted child cannot therefore in our opinion lead to any inference that a child adopted by a widow will not be deemed to be the adopted son of her deceased husband
The second ground taken on behalf of the appellant also therefore fails
 It is no doubt true that the above observations appear to support a case of the appellant but since we are of the view that these observations were not necessary for deciding the case which was before the Court they have to be held obiter dicta
In Sitabai  Anr
vs Ram Chandra  which was again decided by a bench of three Judges this Court was called upon to decide a case which was more or less similar to the one before us
In that case the facts were these
Two brothers were in possession of ancestral properties consisting of a house and tenancy rights of an ordinary tenant in agricultural lands
The elder brother died in 1930 leaving a widow the first appellant therein
The first appellant continued to live with the younger brother and had an illegitimate son by him the respondent therein
In March 1958 she adopted the second appellant and some time later the surviving brother died
After his putative father died the respondent who was the illegitimate son took possession of all the joint family properties
The two appellants thereupon filed a suit for ejectment
The Trial Court decreed the suit
The first appellate court held that a will executed by the respondent s father the younger brother was valid in so far as his half share in the house was concerned and therefore modified the decree by granting a half share of the house to the respondent
In second appeal the High Court held that the appellants were not entitled to any relief and that their suit should be dismissed on two grounds namely i the joint family properties ceased to have that character in the hands of the surviving brother when he became the sole surviving coparcener and 2 the second appellant did not become on his adoption a copar 1084 cener with his uncle in the joint family properties
In this Court the appellants in that appeal questioned both the conclusions reached by the High Court
On the first contention this Court held that the joint family properties continued to retain their character in the hands of the surviving brother as the widow the first appellant of the elder brother was still alive and continued to enjoy the right of maintenance out of the joint family properties following the decision of this Court in Gowli Buddanna vs Commissioner of Income Tax Mysore Bangalore  On the second contention this Court held that the scheme of sections 11 and 12 of the Act was that in the case of adoption by a widow the adopted child became absorbed in the adoptive family to which the widow belonged
It further observed that though section 14 of the Act did not expressly state that the child adopted by a widow became the adopted son of her deceased husband it was a necessary implication of sections 12 and 14 of the Act and that was why section 14 of the Act provided that when a widow adopted a child and subsequently married that husband became the step father of the adopted child
Therefore when the second appellant was adopted by the first appellant he became the adopted son of the first appellant and her deceased husband namely the elder brother and hence became a coparcener with the surviving brother in the joint family properties and after the death of the surviving brother the second appellant became the sole surviving coparcener entitled to the possession of all the joint family properties except those bequeathed under the will that is except the half share of the house
Applying the above decision it has to be held in the case before us that the joint family properties which belonged to the joint family consisting of Dharma the appellant and his brother Miragu continued to retain the character of joint family properties in the hands of Dharma the appellant as Champabai the widow of Miragu was still alive and continued to enjoy the right of maintenance out of the said joint family properties
It should also be held that Pandurang the 1st respondent on adoption became the adopted son of Miragu and became a coparcener with Dharma the appellant in the joint family properties
When once he became a member of the coparcenary which owned the joint family properties he was entitled to institute a suit for partition and separate possession of his one half share in the joint family properties of course except those which had been alienated in favour of third parties before the adoption by Dharma the appellant
The effect of section 12 of the Act again came up for consideration before this Court in Vasant and Another vs Dattu and Others AIR 1987 SC 399
In that case interpreting clause c to the proviso 1085 of section 12 of the Act Chinnappa Reddy J who spoke for the Court observed that in a case of this nature where the joint family properties had passed on to the hands of the remaining members of the coparcenary on the death of one of the coparceners no vesting of the property actually took place in the remaining coparceners while their share in the joint family properties might have increased on the death of one of the coparceners which was bound to decrease on the introduction of one more member into the family either by birth or by adoption
In the above connection the Court observed thus 4
We are concerned with proviso c to section 12
The introduction of a member into a joint family by birth or adoption may have the effect of decreasing the share of the rest of the members of the joint family but it certainly does not involve any question of divesting any person of any estate vested in him
The joint family continues to hold the estate but with more members than before
There is no fresh vesting or divesting of the estate in anyone
The learned Counsel for the appellants urged that on the death of a member of a joint family the property must be considered to have vested in the remaining members by survivorship
It is not possible to agree with this argument
The property no doubt passes by survivorship but there is no question of any vesting or divesting in the sense contemplated by section 12 of the Act
To interpret section 12 to include cases of devolution by survivorship on the death of a member of the joint family would be to deny any practical effect to the adoption made by the widow of a member of the joint family
We do not think that such a result was in the contemplation of Parliament at all
 We respectfully agree with the above observations of this Court in Vasant s case supra
The joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener
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 coparcener 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 pro 1086 perty 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 alientation cannot object to alientations made before he was begotten or adopted
The decision of the High Court of Bombay in YK Nalavade s case supra which was followed by the High Court in dismissing the appeal out of which the present appeal arises has been rightly given
We agree with the reasons given by the High Court of Bombay in that decision for taking the view that clause c to proviso of section 12 of the Act would not be attracted to a case of this nature since as observed by this Court in Vasant s case supra there was no vesting  of joint family property in Dharma the appellant took place on the death of Miragu and no divesting  or property took place when Pandurang the first respondent was adopted
The decision of the Andhra Pradesh High Court in Narra Hanumantha Rao s case supra which takes a contrary view is not approved by us
It therefore stands overruled
The joint family properties continued to remain in the hands of Dharma the appellant as joint family properties and that on his adoption Pandurang the 1st respondent became a member of the coparcenary entitled to claim one half share in them except those items which had been sold by Dharma the appellant
In the result this appeal fails and it is dismissed
There is no order as to costs
HSK Appeal dismissed


Summary:
 The Central Excise Officers during the course of investigations made against Ms Swastik Investment Company Bombay found that some of the consignments of the material described in documents as crimpled uncut waste  were cleared from Ms Swadeshi Polytex Limited Ghaziabad during the period from January 1974 to December 1977 were purchased by the respondents and utilised by them in the manufacture of polyester staple fibre 
The Collector held that the crimpled uncut waste  purchased by the respondents was in fact polyester fibre tow  and that the respondents had carried on manufacture of polyester staple fibre  from tow and as such exigible to duty
Aggrieved by the Collector s Order the respondents filed an appeal before the Central Board of Excise and Customs
This appeal was transferred to the Customs Excise and Gold Control Appellate Tribunal in pursuance of section 35 P of the 
The Tribunal on an examination of the material and the contentions came to the conclusion that what the respondents had purchased was already man made fibre but in running length and that what they did in relation to it was to cut it into staple length after some manual sorting and straightening and held that such cutting involved no 1007 manufacture and hence no duty liability could be imposed
In the Appeal by the revenue to this Court on the question whether there was exigibility to taxation on the item manufactured by the respondent
Dismissing the Appeal
 HELD 1
There is a distinction between tow  and staple fibre 
Tow  is fibre in running length and staple fibre  is obtained by cutting it into required short length
1009B 2
The taxable event under the Excise Law is manufacture  Manufacture  means to bring into existence a new substance and does not mean merely to produce some change in a substance
1009D 3
Etymologically the word manufacture  properly construed would doubtless cover transformation but the question is whether the transformation in the instant case brings about fundamental change a new substance is brought into existence or a new different article having distinctive name character or use results from a particular process or a particular activity
1009D E In the instant case it is not disputed that what the respondents did was to cut the running length fibre tow into short length fibre staple fibre
It indubitably brought a change in the substance but did not bring into existence a new substance
The character and use of the substance man made fibre remained the same
By the change in the length of the fibre the substance acquired a new name
But since the tariff entry recognised the single description man made fibre  with no further sub division based on length of fibre and even without any distinct enumeration of the various forms of fibre by cutting long fibres into short ones the respondents did not bring into existence any new product so as to attract any levy under the same tariff entry
Even by cutting the respondents obtained man made fibre
Such cutting therefore involved no manufacture and hence no duty liability can be imposed upon them
1009E H Union of India vs Delhi Cloth  General Mills   Empire Industries Ltd  Ors etc
vs Union of India  Ors etc
 1985 Suppl
1 SCR page 292 and Ms Ujagar Prints vs Union of India  referred to 1008