Case: Gunamma (D) By L.R Vs. Shevantibai (D) By L.R. & Others

1. Delay condoned. 2. Leave granted. 3. The original plaintiff/her legal heir (substituted plaintiff) who has not succeeded in all the three courts below is in appeal before this Court upon grant of special leave under Article 136 of the Constitution of India. 4. The original plaintiff - Gunamma was a subject of Sangli State which merged in the Union of India in the year 1948. There was a Sangli Widows Right to Property Act of 1935 (Act No.1 of 1935) [hereinafter referred to as "the Sangli Act"] which governed, inter alia, the right of a widow to ask for partition. Under Section 1(E) of the Sangli Act, Hindu women who had become widows prior to the passing of the Sangli Act in the year 1935 were also entitled to claim the benefits of the provisions of the Sangli Act. The following extract of the relevant parts of the Sangli Act would be required to be made at the very outset for a proper appreciation of the issues arising in the present case."An Act regarding the right of a widow to get a share by inheritance of partition from males. Object. Whereas it is expedient to remove doubts and disparities existing in the Hindu Shastras, in respect of the females in the property which is to come by way of inheritance or partition, and whereas it is expedient and necessary to confer new rights, and whereas it is further necessary to place the status of females on satisfactory basis, it is hereby enacted as follows:- 1. Right of a widow to ask for partition - Upon the death of the husband of a Hindu woman while, though he continued to remain (as a member) in the Joint family, the widow shall become a Sahabhagidar in place of (her) husband and she shall be entitled to claim by partition such share (Hissa) in the joint family properties which her husband could have claimed; provided that the word widow shall not include a widow of a Hindu who shall not be entitled to claim partition under the Hindu Law. (A) The nature of a joint family shall not change merely because a widow in a joint family takes (her) share. (B) x x x x x x (C) x x x x x x (D) The right (Hak) for partition allowed under this Act shall, along with the right (Hak) for maintenance, be an alternative right (Hak); provided that a Hindu widow, if she once claims any of the rights of partition or maintenance shall not claim the other right. (E) Hindu women who may have become widows prior to the passing of this Act may also claim benefit of the provisions of this Act; provided, however, widows who may have got their maintenance decided either through Court or out of Court, shall not be entitled to claim partition. Explanation: (i) x x x x x (ii) x x x x x (iii) Sahabhagidar means that she will get the rights which male Sahabhagidars have got but unless there is a partition, she cannot make an adoption without the consent of the other Sahabhagidars; and as a Sahabhagidar she has no right to alienate or otherwise deal with her right to sue. Nor will it be liable for being sold for debts incurred by her."5. Upon merger of Sangli State in the territories of the Union of India the Sangli Act was repealed by the Indian State (Application of Laws) Order, 1948 [hereinafter referred to as "the Order of 1948"]. The repealing provision, which is as follows, would also require a specific notice."Repeal of enactments in force in any Indian State or part thereof and corresponding to the enactments in force in the Province of Bombay and extended to any such state under paragraph 3 shall stand repealed; Provided that the repeal by this Order of any such enactments shall not affect the validity, invalidity, effect or consequence of any thing already done, or suffered or any right, title obligation or liability already acquired, or incurred or any remedy or proceeding in respect thereof or any release or discharge of or from any debt, penalty, obligation, liability claim or demand or any indemnity already granted or the proof of any past act or thing."6. Having set out the relevant provisions of the Sangli Act we may now advert to the facts of the case. The common ancestor of the parties is one Mallappa who had two sons Damodar and Baburao. The second son Baburao and his wife Saraswathi died issueless. The first son Damodar who died in the year 1932 had three wives, namely, Rukmabai, Rajmathi and the plaintiff Gunamma. Damodar through his first wife had a son also known as Mallappa who died in the year 1934 (hereinafter referred to as "Mallappa-2"). The aforesaid Mallappa-2 had married one Sevanthibai i.e. defendant No.1. The said defendant No.1 was disposing of the properties of which the common ancestor Mallappa was the owner. The plaintiff had, therefore, filed a suit for partition based on her rights under the Sangli Act. During the pendency of the suit, the original plaintiff died and her legal heir (adopted son) was impleaded as plaintiff in the said suit. Death of the original plaintiff occurred in the year 1983 while the adoption took place in the year 1978. The suit was dismissed. In First Appeal, by the substituted plaintiff (appellant herein), all issues were decided in favour of the plaintiff but as the original plaintiff had died in the year 1983 the first appellate Court held that the substituted plaintiff, as the adopted son, would have no right to the properties as the said adoption was not valid on the ground that the original plaintiffs power to adopt a son was permanently extinguished on the death of the natural son leaving his widow. In Second Appeal by the substituted plaintiff the High Court took the view that though the adoption was valid, the property had already vested in the legal heir of the sole coparcener i.e. Mallappa-2 and such legal heir (defendant No.1) cannot be divested of the property by the subsequent adoption. Aggrieved, this appeal has been filed. 7. We have heard the learned counsels for the parties. We have considered the provisions of the Sangli Act as extracted in the Appeal Paper Book; the provisions of the Hindu Womens Rights to Property Act, 1937; and also the relevant provisions of the Hindu Adoptions & Maintenance Act, 1956. 8. The matter really lies within a short compass and the issue arising can be identified to be whether the original plaintiff Gunamma had a share in the property inherited by her husband Damodar at the time of the her husbands (Damodar) death in the year 1932. 9. A consideration of the provisions of the Sangli Act would go to show that upon the death of a husband of a Hindu woman, not only she continues to remain a member in the joint family but also becomes a Sahabhagidar in place of her husband and is entitled to claim partition. The aforesaid right, therefore, accrued to the original plaintiff under the Sangli Act, notwithstanding the death of her husband Damodar in the year 1932 i.e. before coming into force of the Sangli Act [Section 1(E)]. If under the Sangli Act, the original plaintiff Gunamma was a Sahabhagidar in place of her husband, it is difficult to appreciate how on the death of her husband Damodar in the year 1932 she would cease to have any right in the property and the entire of the same could go in favour of Malappa-2, son of Damodar through his first wife. 10. If the original plaintiff had a share in the property inherited by her husband Damodar, naturally, if the adoption of the substituted plaintiff is held to be valid, as held by the High Court, the substituted plaintiff would continue to have a right in the property to the extent of the share of his mother i.e. Gunamma, the original plaintiff. In this regard, we have also noticed that it was precisely the above issue which was framed as Issue No.5 in the suit. The said issue was held in favour of the plaintiff by the first appellate Court. No cross-objection to the said findings under Issue No.5 has been taken by the defendant - respondents. 11. An argument has been sought to be raised relying on the decision of this court in the case of Ravinder Kumar Sharma v. State of Assam and others, AIR 1999 SC 3571 to contend that the filing of a cross-objection is an optional course of action and not mandatory. While the same may be correct, under Order XLI rule 22 of the Code of Civil Procedure, 1908 a contest can also be made to a finding adverse to a party though the decree may be in his favour. No contest to the findings of the learned first appellate Court was made by the present respondents in the Second Appeal before the High Court. We, therefore, do not consider it appropriate to go into the said question in the present proceedings under Article 136 of the Constitution of India. Even otherwise, on merits, for the reasons that we have indicated earlier, we find no error in the aforesaid view taken by the first appellate Court. 12. Another argument has been made on behalf of the respondent -defendant No.1 that under Sections 3 and 4 of the Hindu Womens Rights to Property Act, 1937 Gunamma would not be entitled to an absolute right in any part of the property following the death of her husband. The position may be correct so far as the Hindu Womens Rights to Property Act, 1937 is concerned, particularly, in view of the provisions contained in Section 3(3) of the said Act. However, in the present case, it is the provisions of the Sangli Act which would govern the parties. The concept of limited estate contained in Section 3(3) of the Hindu Womens Rights to Property Act, 1937 do not find any reflection in the provisions of the Sangli Act which has been extracted above and has been considered by us in the present proceedings. 13. A further argument has been advanced by the learned counsel for the respondents with regard to the provisions contained in Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956. It has been submitted that the adoption of the substituted plaintiff being in the year 1978, the pre-existing rights cannot be divested. 14. We have noticed that it is on the aforesaid basis on which the High Court had proceeded to affirm the decree of dismissal of the suit. Having considered the facts of the case and the provisions of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956 we are of the view that the said provision would have no application to the present case. As already held by us, the plaintiff Gunamma was entitled to a share to the property of her husband Damodar way back in the year 1932 and, adoption being in the year 1978, on her death, the substituted plaintiff i.e. the adopted son must be understood to be legal heir in respect of the aforesaid property of the original plaintiff Gunamma. The argument raised on the strength of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956, therefore, has to fail.

Decision:
1[ds]9. A consideration of the provisions of the Sangli Act would go to show that upon the death of a husband of a Hindu woman, not only she continues to remain a member in the joint family but also becomes a Sahabhagidar in place of her husband and is entitled to claim partition. The aforesaid right, therefore, accrued to the original plaintiff under the Sangli Act, notwithstanding the death of her husband Damodar in the year 1932 i.e. before coming into force of the Sangli Act [Section 1(E)]. If under the Sangli Act, the original plaintiff Gunamma was a Sahabhagidar in place of her husband, it is difficult to appreciate how on the death of her husband Damodar in the year 1932 she would cease to have any right in the property and the entire of the same could go in favour ofson of Damodar through his first wife.If the original plaintiff had a share in the property inherited by her husband Damodar, naturally, if the adoption of the substituted plaintiff is held to be valid, as held by the High Court, the substituted plaintiff would continue to have a right in the property to the extent of the share of his mother i.e. Gunamma, the original plaintiff. In this regard, we have also noticed that it was precisely the above issue which was framed as Issue No.5 in the suit. The said issue was held in favour of the plaintiff by the first appellate Court. Noto the said findings under Issue No.5 has been taken by the defendantthe same may be correct, under Order XLI rule 22 of the Code of Civil Procedure, 1908 a contest can also be made to a finding adverse to a party though the decree may be in his favour. No contest to the findings of the learned first appellate Court was made by the present respondents in the Second Appeal before the High Court. We, therefore, do not consider it appropriate to go into the said question in the present proceedings under Article 136 of the Constitution of India. Even otherwise, on merits, for the reasons that we have indicated earlier, we find no error in the aforesaid view taken by the first appellateposition may be correct so far as the Hindu Womens Rights to Property Act, 1937 is concerned, particularly, in view of the provisions contained in Section 3(3) of the said Act. However, in the present case, it is the provisions of the Sangli Act which would govern the parties. The concept of limited estate contained in Section 3(3) of the Hindu Womens Rights to Property Act, 1937 do not find any reflection in the provisions of the Sangli Act which has been extracted above and has been considered by us in the present proceedings.We have noticed that it is on the aforesaid basis on which the High Court had proceeded to affirm the decree of dismissal of the suit. Having considered the facts of the case and the provisions of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956 we are of the view that the said provision would have no application to the present case. As already held by us, the plaintiff Gunamma was entitled to a share to the property of her husband Damodar way back in the year 1932 and, adoption being in the year 1978, on her death, the substituted plaintiff i.e. the adopted son must be understood to be legal heir in respect of the aforesaid property of the original plaintiff Gunamma. The argument raised on the strength of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956, therefore, has to fail.