:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.184 OF 1991 SECOND APPEAL NO.184 OF 1991 SECOND APPEAL NO.184 OF 1991 Narayan Tukaram Kate, 29 years, Occ.Agriculturist, resident of Kodoli, Tal. & Dist. Satara ...Appellant. (Orig. Deft.No.4) v. 1. Hirabai Ramchandra Godse (Deceased) 2. Ambikabai Shirang Jadhav 54, Occ.Agriculturist, resident of Jalgaon, Tal.Koregaon, Dist. Satara 3. Narmadabai Dnyanu Jadhav (Deceased) (Org.Plaintiffs) 4. Gangubai Dnyanu Chavan deceased by her L.Rs:- 4-A. Tukaram Dnyanu Chavan, 26, Occupation: Service, Resident of Kodoli, Tal:Satara, 4-B. Sau. Bebi Namdeo Phadatare 34, Occ.Household, resident of Koregaon, Dist. Satara. 5. Saraswatibai Rau Jadhav, 59 Occ.Agriculturist resident of Satara. ...Respondents. (Org.Deft.Nos.2 and 1) (C.A.No.4683/97 for bringing the legal heirs of the respondent no.1 and C.A.No.5295/07 for bring the legal heirs of the respondent no.3 have already been dismissed as per the Court’s order dated 13/6/97 and 21/8/97 respectively.) Mr.V.B.Rajure & Shri Nitin Jamdar , advs. for the Appellant. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 9th July, 2008. DATE: 9th July, 2008. DATE: 9th July, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. This Second Appeal is preferred by the original defendant no.4 after having failed in the Regular Civil :2: Appeal No.203 of 1986 filed against the judgment passed by the IInd Joint Civil Judge, Junior Division in Regular Civil Suit No.24 of 1975. Respondent nos.1 to 3 are the original plaintiffs while the respondent nos.4 and 5 are original defendant nos.2 and 1 respectively. For the sake of convenience, the parties shall be addressed by their original status in the suit. 2. To state in brief, it is admitted position that one Tukaram Kate held the suit property consisting of agricultural lands and houses. The said Tukaram died sometimes in 1949-50 leaving behind widow Lalubai and 5 daughters. Plaintiffs and the defendant no.1 and the deceased defendant no.2 Gangubai were their daughters. In 1954 Lalubai widow of Tukaram adopted defendant no.4 Madhav @ Narayan Kate, who is the natural son of her daughter Saraswatibai. The defendant no.1 Lalubai died in 1961 leaving behind adopted son defendant no.4 Madhav and the five daughters. The plaintiff nos.1 to 3 being daughters of Tukaram filed the suit seeking partition and separate possession of their share in the suit property. They also challenged adoption of the defendant no.4. Defendant no.2 Gangubai had died and her legal heirs supported the claim of the plaintiffs. However, the defendant nos.1 and 4 filed their separate but similar written statements. According to them, the defendant no.4 was lawfully adopted son of Lalubai. According to them, the plaintiffs had filed a false suit :3: and they had never claimed any share and partition in the property and they prayed for dismissal of the suit on several technical grounds. 3. The trial Court framed several issues and after hearing the parties, came to conclusion that Lalubai had adopted the defendant no.4 Madhav @ Narayan in 1954. The trial Court also came to conclusion that no partition had taken place before filing of the suit as alleged by the plaintiffs. The trial Court also came to conclusion that as per law, adoption would relate back to the life time of the adoptive father Tukaram and on his death, property would devolve upon his adopted son and widow Lalubai equally and on the death of Lalubai in 1961, her half share would be inherited equally by the adopted son and 5 daughters in view of the provisions of Section 15 of the Hindu Succession Act, 1956. In the result, the suit to the extent of challenging the adoption of the defendant no.4 came to be dismissed but it was decreed to the extent of claim of the plaintiffs in respect of their share in the property. The trial Court held that each of the plaintiffs was entitled to 1/12th share in the suit property. The defendant nos.1 and 4 challenged the said judgement and decree in Regular Civil Appeal No.203 of 1986. However, the appellate Court dismissed the appeal. 4. The Second Appeal filed by the defendant nos.4 :4: only was admitted observing that the ground no.2 raises substantial question of law. Ground No.2 reads as follows: 2. That the substantial question of law involved in this Second Appeal is that whether the widow whose husband died after the commencement of Hindu Women’s Rights to Property Act, 1937 and whose interest is an interest of a coparcener having right of partition takes adoption in 1954 which affects her right and if she does not claim partition till the time of her death which occurred in 1961, her coparcenery interest devolves on adopted son as surviving coparcener or it goes by inheritance. 5. Heard Mr.Rajure the learned counsel for the appellant/original defendant no.4. In spite of service, none for the respondents appeared. Even though in the suit, adoption of the defendant no.4, who is present appellant, was challenged but the learned trial Court rejected that challenge and held that Lalubai widow of Tukaram had lawfully adopted the defendant no.4. The plaintiffs did not prefer any appeal against that judgment and thus, the finding of the trial Court in respect of adoption has become final. Therefore, now it is admitted position that Tukaram died in 1949-50 and his widow Lalubai adopted the defendant no.4 Madhav @ Narayan in 1954. Lalubai died in the year 1961 leaving behind adopted son and five daughters. The question is what were the rights of Lalubai in respect of the suit property after death of her husband and after adoption :5: of son. 6. Section 2 of the Hindu Women’s Rights to Property Act, 1937 provides that notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate. Admittedly, Tukaram had died in 1949-50. Therefore, Section 3 of the Hindu Women’s Rights to Property Act, 1937 would be applicable. Admittedly, Tukaram did not leave behind any son and on his death only his widow was the legal heir, because prior to Hindu Succession Act, 1956, daughters did not have right of inheritance. Section 3(1) provides that when a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, shall subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son. Sub-section 3 provides that any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a "Hindu woman’s estate", provided however, that she shall have the same right of claiming partition as a male owner. In view of this legal position, Lalubai, being the widow of the deceased Tukaram, who had died intestate, would be entitled to the property of her husband just like a son but that :6: right or interest was limited interest known as a "Hindu woman’s estate". Till she adopted the defendant no.4 as a son, she was exclusively holding the property of her husband but she was having limited interest known as Hindu woman’s estate. In 1954 she adopted defendant no.4. There is no dispute that the adoption of a son by widow relates back to her husband and it shall be presumed that the defendant no.4 was adopted by the husband of Lalubai. In view of this legal position, it will have to be notionally presumed that on the death of Tukaram, he was survived by adopted son, widow and five daughters. However, the daughters did not get any right of inheritance at that time. In view of the provisions of Section 3 of The Hindu Women’s Rights to Property Act, 1937, from the time and date of the adoption, Lalubai would be presumed to have share in the property of her husband equally to the share of a son. Therefore, from the date of the adoption, Lalubai and the defendant no.4 being the adopted son, would be entitled to equal share in the property. However, while share of the adopted son was absolute, the share held by Lalubai was only to the extent of limited interest known as Hindu woman’s estate. 7. Thereafter, comes Hindu Succession Act, 1956. Section 14(1) of the Hindu Succession Act, 1956 declares that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, :7: shall be held by her as full owner thereof and not as a limited owner. In view of this provision, limited ownership or "Hindu woman’s estate", which was held by Lalubai was converted into absolute or full ownership over half share in the property left by her husband. Thus, with the Hindu Succession Act, 1956 coming into force, Lalubai and her adopted son, the defendant no.4, had equal share in the property of the deceased Tukaram. 8. Admittedly, Lalubai died in 1961 and in view of the facts and legal position stated above, she was having half share in the property. Section 15(1) of the Hindu Succession Act, 1956 provides that the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16. Firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. In 2nd, 3rd and 4th entries, different relatives are mentioned. Rule 1 under Section 16 provides that among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously. In view of this rule, the sons and daughters, being heirs in the first entry would be entitled to succeed in preference to any other relatives in entry (b), (c) and (d) and the sons and daughters being the heirs of first and the same entry would take simultaneously. In view of this, it is clear that the :8: adopted son and the five daughters of Lalubai would be entitled to inherit her property equally among themselves. Therefore, each of them would get 1/6th share in the share of Lalubai in the property. As Lalubai was having half share in the total property, her adopted son and each of the daughters would be entitled to 1/6th of 1/2, i.e., 1/12th share in the total property. 9. Merely because Lalubai did not seek partition of the property during her lifetime, her half share in the property could not be taken away or divested in any manner. That right was absolute in view of the legal provisions, particularly Section 14 of the Hindu Succession Act read with Section 3 of the Hindu Women’s Rights to Property Act, 1937. The learned counsel for the defendant no.4/appellant could not point out any provision of law contrary to this. In view of the legal position stated above, I find that the Courts below were right in holding that the each of the plaintiffs was entitled to 1/12 share in the total property, which was left behind by Tukaram. 10. In the result, the Second Appeal stands dismissed. :9: (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)