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

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 = appeal accepted, 0 = rejected): 1

Explanation:
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.