KISAN SHORAM LEVA Vs. HARI TOTARAM

JUDGEMENT

(1.) THE question of law which arises in this appeal is whether plaintiff Hair who was adopted on 27-7-1956 by vested in her by virtue of the provisions of Section 14 of the Hinud Succession Act, 1956. The question arise thus: Totaram, the original owner of field survey No. 67/1 situated at mouza Borkhedi, Taluq Malkapur, District Buldana, died in 1953 leaving behind Rukhmabai, defendant No. 1, The Hindu Succession Act came into force on 17-6-1956. Plaintiff Hari was adopted by Rukhmamnbai on 27-7-1956, and after the adoption of the plaintiff, Rukhmabai sold filled survey No. 67/1 to the defendants Nos. 2 and 3 on 10-2-1957. These defendants in their turn gifted the said field to the defendant No. 4 on 14-2-1957 and the defendant No. 4 is in actual possession of the property. Plaintiff Hari brought his suit for possession of field survey No. 67/1 alleging that the sale deed in favour of the defendants Nos. 2 and 3 was illegal and without any legal necessity and was executed to defeat the claim of the plaintiff. According to him, the sale deed was therefore, not binding on him and that since the defendant No. 1 had remarried. , she, had lost all her interest in the suit field and the plaintiff alone was entitled to claim possession. The plaintiff also denied the validity of the sale in favour of the defendant Nos. 2 and 3 and the gift in favour of the defendant No. 4. The suit was mainly contested by the defendants Nos. 2 to 4. According to them, in view of the provisions of Section 14 of the Hindu Succession Act, the defendant No. 1 had become the absolute owner of the field even before the adoption of the plaintiff. They also denied the plaintiff's adoption. They also denied that the sale was no for legal necessity or that it was not binding on the plaintiff. The trial Court held that the plaintiff was duly adopted by the defendant No. 1 on 27-7-1956 and that he had become the owner of the suit property by virtue of being the adopted son of Totaram. It held that as a result of the adoption, the defendant No. 1 was divested of the suit property and she had, therefore, no right to sell the suit field to the defendants Nos. 2 and 3 and consequently the sale were not binding on the plaintiff. The plaintiff was, therefore, held entitled to possession. The trial Court did not given any finding on the issue whether the sale was for legal necessity or not. An inquiry into profits from the date of suit till delivery of possession was also ordered by the trial Court.

(2.) THE defendants Nos. 2 and 4 filed an appeal against the decision of the trail Court. The lower appellate Court also took the view that the adoption of the plaintiff had the effect of divesting the defendant No. 1 of her complete ownership of the suit land, and the plaintiff, therefore, became entitled to claim ownership of the suit land. Since the lower appellate Court took the view that the defendant No. 1 had no right to self away the suit property, the appeal field by the defendants Nos. 2 to 4 was dismissed. On the issue of legal necessity the lower appellate Court found that legal necessity was not proved. The defendants Nos. 2 and 4 have now filed this second appeal.

(3.) IT is contended on beheld of the appellants on the authority of the decision in Yamunabai v. Ram Maharaj, AIR 1960 Bom 463 that the adoption of the plaintiff having taken place after the defendant No. 1 had become absolute owner of the property left behind by Totaram, by virtue of the provisions of the Hindu Succession Act which came into force on 17-6-1956, the adoption did not have the effect of divesting the defendant No. 1 of the property to which she had acquired absolute title. The learned counsel appearing on behalf of the plaintiff-respondent No. 1 relied on the decision of the Supreme Court in Krishnamurthi v. Dhruwaraj, AIR 1962 SC 59 and contended that the view taken by the lower Courts was based on this decision and that they had rightly held that the adoption of the plaintiff had the effect of divesting the defendant No. 1 of the property to which she had succeeded on the death of her husband. There is no dispute that plaintiff Hari was adopted by Rukhmabai after the Hindu Succession Act had already come into force. By virtue of the provisions of Section 14 of the Act, the limited estate which Rukhmabai took in the property left behind by her husband Totaram who died in 1953 was held by her absolutely on the date of the adoption of the plaintiff. There is nothing in the provisions of the Hindu Succession Act which indicated that the absolute estate contemplated by Section 14 could in any way be affected by an adoption made after the estate had absolutely vested in the widow. This question came up for consideration before a Division Bench of this Court in Yamunabaf's case, AIR 1960 Bom 463 (cited supra),in that case a Hindu widow had succeeded to an Inam estate left by her co-widow A as her nearest heir. Prior to her death in 1949 A had adopted the defendant, but as the necessary sanction of the Kolhapur State authorities to the adoption had not been then obtained, Yamunabai became entitled by inheritance to A's estate. The sanction ex--st-facto was accorded to the adoption in 1958 by the State of Bombay, i. e. after Hindu Succession Act had come into force. The question which arose before the Division Bench was whether the estate possessed by Yamunabai which had become absolute by virtue of provision of Section 14 of the Hindu Succession Act was liable to be divested on the grant of a sanction 14 of the Hindu Succession Act was liable to be divested on the grant of sanction ex-Post -facto to an adoption in the family to which the defendant belonged. The Division Bench defendant belonged. The Division Bench held that the estate possessed by Y which became absolute by virtue of Section 14 was not liable to be divested on the grant of a sanction ex-post-facto to the defendant's adoption. It was also held that the sanction ex-post--facto to an adoption may have the effect of divesting property vested in another person by inheritance from the sole surviving coparcener, or a limited owner but that rule in so far as it was inconsistent with Section 14 was superseded by clause (b) of Section 4. Referring to the scope of Section 14 of the Hindu Succession Act, the Division Bench observed in paragraph 7: