YARLAGADDA NAYUDAMMA Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) Seetaram Reddy, J.-In this reference the point that falls for our consideration is: when a member of a coparcenary governed by Mitakshara School is given in adoption, whether his undivided interest in the coparcenary property would continue to vest in him even after adoption by reason of the proviso (b) to section 12 of the Hindu Adoptions and' Maintenance Act, 1956 (hereinafter referred to as the Act). The answer chiefly turns upon the construction of the language employed, in particular, in proviso (b) to section 12 of the Act. Before reaching the conclusion by the processual interpretation of the said provisions, the relevant facts may briefly be noticed.

(2.) The petitioner in C.R.P. No. 103 of 1979 is one Nayudamma (male). Lakshmamma, the petitioner in C.R.P. No. 104 of 1979 is his widowed mother and the petitioner in C.R.P. No. 105 of 1979 is his son. Nayudamma has another son by name Sree Rama Prasad, who was given in adoption on 20th August, 1970 to one R. Rattama, who filed the declaration in C.C. No. 2216 of 1975. The petitioners in the present civil revision petitions and the aforesaid Rattamma claim that the adopted son is entitled to a share in the lands belonging to the natural family and therefore his share in the lands should be included in his holding and excluded from the holdings of his natural father and brother within the meaning of the proviso (b) to section 12. In other words, the right of the said Sree Rama Prasad in the properties of the natural family was a vested right and the right, even after adoption, continued to vest in him and it is that vested right which is sought to be challenged by the contentions and rival contentions. This reference arises because of conflict of opinions given by the authors who edited Mulla's Hindu Law, 14th Edition on the one hand and Hindu Law of Adoption, Maintenance, Minority and Guardianship, commented by Sri S. V. Cupte. Proviso (b) to section 12 of the Act, is as follows: "12. An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that:- (a) * * * * (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth

(3.) From the provisions of the aforesaid Statute it is quite manifest that the Legislature has enacted a special provisions i.e., proviso (b) to section 12 of the Act which is explicit and enequivocal in its lauguage and intention. The property as per the said proviso (b) to section 12 of the Act which is explicit and unequivocal in its language and intention. The property as per the said proviso (b) which vested in the adopted child before the, adoption shall continue to vest in such person. It is further added that property will be subject to the obligations, if any, attached to the ownership of such property. Therefore it is the undoubted view of the Legislature that a person even after being given in adoption, takes along with him the property from his natural family which vested in him and continues to vest in him, adoption notwithstanding, whether that property vested in him either due to partition or otherwise. The texts of the Mitakshara Law, which we will presently see, are emphatic with regard to the vesting of the property in the coparcener. The property vests in a coparcener by birth and hence he gets a vested right in that property by virtue of inheritance. The position would have been probably different if the proviso (b) was not enacted in section 12. Be that as it may, in so far as the proviso (b) is concerned, it makes perfectly clear that the person even after his adoption, takes the property along with him which was earlier vested in that person. This view of ours is supported by Sri S. V. Gupte. who has written commentary on Hindu Law of Adoption, Maintenance, Minority and Guardianship. While dealing with the proviso (b) to section 12, the learned Author holds the view of ours, which is to the following effect:- "As regards property held by a son as the sole surviving coparcener in the natural family, there was, as stated earlier, a difference of opinion. But that difference does not exist under this Act; it is submitted that all property vested in the son in his natural family. Whether self-acquired, obtained by will or inherited from his father or other ancestor or collateral (which is coparcenary property held along with other coparcener or coparceners) including property held by him as the sole surviving coparcener would not be divested on adoption but would continue to be vested and to belong to the son even after adoption. Under the old law a coparcener given in adoption would be divested of his interest in the coparcenary property of the natural family. That was the undoubted law. Does that law still continue or is it modified by clause (b) of the proviso to section 12 of the Act? Under clause (b) any property vested in the adopted child before adoption continues to vest in such person. Can it be denied that the interest of a coparcener in the joint family property, though huctuating, is a vested interest, whatever may be the extent of that interest? If the interest of a deceased coparcener can devolve upon his heirs mentioned in the proviso to section 6 of the Hindu Succession Act and not by survivorship why can it not be said that by virtue of the provisions of clause (b) the undivided interest of a person in a Mistakshara coparcenary property will not, on his adoption, be divested but will continue to vest in him even after adoption. If the main provisions of section 12 had stood alone it would have been possible to contend that by virtue of these provisions a son given in adoption would rease to be a coparcener and loss his interest in the coparcenary property. But clause (b) is an exception to the general rule contained in section 12 and the main provisions of the section must be read subject to that exception. In short on adoption not only the property belonging to an adopted child in the natural family such as his or her self-acquired property, property inherited by him or her from other persons including his or her father or other ancestor and property held as a sole surviving coparcener in a Mitakshara property, but. even the undivided interest of a male child in a Mitakshara coparcenary would pass with him as if he had separated from the coparcenary". The second aspect of the observation which we made above viz., that under Mitakshara Law a coparcener has a vested right in the property which he, acquires by birth is reinforced by various commentators on Hindu Law. While editing Mayne's Treaties on Hindu Law and Usage, eleventh edition, N. Chandrasekhara Aiyar, observed in paragraph 270 as follows: "The undivided interest of a coparcener who leaves a widow does not go by survivorship to his male issue or to the other coparceners on his death but it goes to her as his heir for the limited estate of a Hindu woman. While she cannot be, in the strict sense a coparcener with the other members, her position will be analogous to that of member of an undivided family under the Dayabhaga law with this possible difference that, as she is only to have the 'same interest' as her husband himself had, the share to which she will be entitled at a partition may be liable to the same fluctuation caused by changes in the family as if she occupied the place of her husband or as the share of any member of an undivided Mitakshara family. It follows from the conception of unobstructed heritage (apratibandhadaya) and of the sons' right vested by birth that an undivided son takes not only the paternal grandfather's property but also the property acquired by his father not strictly by inheritance but by virtue of his right by birth and only as unobstructed heritage. The Mitakshara and the other authorities following it are quite explicit on the matter. The very definition of unobstructed heritage makes no distinction between the property of the father and the property of the grandfather so far as the son's right to take it as unobstructed heritage is concerned. That the right vested by birth in the son extended to property acquired by the father is unequivocally stated in the Mitakshara (I). 1, 23. 27, 33). Therefore it is a settled point that property in the paternal or the grand-paternal estate is by birth. The distinction between the son's equal right by birth in the grand-father's property and his unequal right by birth in the father's property is fully brought out by Vijnanesvara.