Case: Sitabai &amp; Anr Vs. Ram Chandra

Dulichand and Bhagirath were brothers and the properties concerned are, according to the written statement of the defendant himself, ancestral. Plaintiff Sitabai is the widow of Bhagirath, who predeceased Dulichand, his eider brother sometime in 1930. It is the admitted case of both the parties that after Bhagirath died, the plaintiff Sitabai was living with Dulichand as a result of which connection an illegitimate child defendant Ramchandra was born in 1935. Dulichand died on March 13, 1958. Sometime before his death Sitabai adopted plaintiff no. 2 Suresh Chandra and an adoption deed was executed on March 4, 1958. After the death of Dulichand Ramchandra took possession of the joint family properties. The plaintiff therefore brought the present suit for ejectment of the defendant Ramchandra, the illegitimate son of Dulichand from the disputed properties. The suit was contested by the defendant on the ground that Dulichand had in his lifetime surrendered the lands to the Jagirdar who made resettlement of the same with the defendant. As regards the house the contention of the defendant was that Dulichand had executed a will before his death making a bequest of his house entirely to him. The trial court decided all the issues in favour of the plaintiff and granted the plaintiffs a decree for possession with regard to the land and the house. The defendant took the matter in appeal to the District Judge who modified the decree. The District Judge took the view that the will executed by Dulichand was valid so far as half of his share in the house was concerned and, therefore, defendant was entitled to claim half the share of the house in dispute. The defendant preferred a second appeal before the Madhya Pradesh High Court which reversed the decree of the lower courts and held that the plaintiff was not entitled to any relief and the suit should be dismissed in its entirety. The High Court held that plaintiff no. 2 became the son of plaintiff no. 1 in 1958 from the date of adoption and did not obtain any coparcenary interest in the joint family properties. The High Court thought that on the date of adoption Dulichand was the sole coparcener and there was nobody else to take a share of his property and plaintiff no. 2 had no concern with the coparcenary property in the hands of Dulichand.

Court's reasoning:
It is the admitted case of both the parties that the properties consisted of agricultural land and a house jointly held by Bhagirath and Dulichand. After the death of Bhagirath, Dulichand became the sole surviving coparcener of the joint family. At the time when plaintiff no. 2 Suresh Chandra was adopted the joint family still continued to exist and the disputed properties retained their character of coparcenary properties.basis of the decision was that the property which was the joint family property of the Hindu undivided family did not cease to be so because of the "temporary reduction of the coparcenary unit to a single individual". The character of the property, viz. that it was the joint property of a Hindu undivided family, remained the same. Applying the principle to the present case, after the death of Bhagirath the joint family property continued to retain its character in the hands of Dulichand as the widow of Bhagirath was still alive and continued to enjoy the right of maintenance out of the joint familyour view the argument put forward on behalf of the appellant is well-founded and must be accepted asis clear on a reading of the main part of s. 12 and sub-s. (vi) of s. 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. The result is, as mentioned in s. 14(1) namely where a wife is living, adoption by the husband results in the adoption of the child by both these spouses; the child is not only the child of the adoptive father but also of the adoptive mother. In case of there lying two wives, the child becomes the adoptive child of the senior-most wife in marriage, the junior wife becoming the step-mother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption, his wife becomes the step-mother of the adopted child. When a widow or an unmarried woman adopts a child, any husband she marries subsequent to adoption becomes the step-father of the adopted child. The scheme of ss. 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of son ship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husbands brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way, the adopted son would become a member of the widows family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that s. 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of ss. 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in sub-s. (4) of s. 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the "step-father" of the adopted child. The true effect and interpretation of ss. 11 and 12 of Act No. 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Arukushi Narayan v. Janabai Sama Sawat(67 B.L.R. 864). It follows that in the present case plaintiff no. 2 Suresh Chandra, when he was adopted by Bhagiraths widow, became the adopted son of both the widow and her deceased husband Bhagirath and, therefore, became a coparcener with Dulichand in the joint family properties. After the death of Dulichand, plaintiff no. 2 became the sole surviving coparcener and was entitled to the possession of all joint family properties. The Additional District Judge was, therefore, right in granting a decree in favour of the plaintiff no. 2 declaring his title to the agricultural lands in the village Palasia and half share of the house situated in theis not possible to accept the argumentadvanced on behalf of the respondent that under the scheme of Act 66 of 1950 the rights of ordinary tenant are not heritable.It is true that there are special provisions with regard to heritability as regards pakka tenant. 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. Section 86 of the Act contains provisions with regard to mutation ofissue was decided against the respondent in the trial court and also in the first appellate court. The decision of the lower courts on this point was not challenged in the High Court and it is not permissible for the respondent to raise this question at this stage.