RAJULAPATI SOMIAH Vs. RAJULAPATI RATTAMMA

JUDGEMENT

(1.) This appeal arises out of a suit for setting aside an adoption instituted by the appellants. The three of them are brothers and sons of one Lakshmiah older brother of Ramaswamy, the deceased husband of Rattamma, the 1st defendant. The 2nd defendant is the boy adopted by Rattamma. He is the son of Rajamma, daughter of Rattamma and Ramaswami. Rajamma was married to Ramayya a bro-her of Rattamma. The plaintiffs case is that the alleged adoption of the 2nd defendant by Kattamma on 5-6-1950 is neither true in fact nor valid in law. While maintaining that the adoption set up did not at all take place, they contend that, assuming that it did, it is invalid for the reason that their consent thereto --they being the nearest sapindas-- was not obtained. The defendants, on the other hand, assert that the adoption is true; they also maintain that the adoption is valid in spite of the fact that the plaintiffs withheld their consent to the adoption. Their case is that as the plaintiffs improperly refused to assent to the adoption, the widow obtained the approval of Sapindas next in rank particularly of one of two agnates nearest in relationship to her husband, the other, too having improperly withheld his assent. It is not denied that Venkayya and Kotayya are the reversioners next in degree. The defendants case is that Kotayya having improperly declined to receive a registered notice sought to be served on him seeking his consent, the widow approached his brother Venkayya and obtained his consent. She also claims to have obtained the consent of some remoter reversioners. The trial Court held that the adoption was true as well as valid.

(2.) When this appeal came on for hearing, an objection was taken on behalf of the respondents to the consideration of the merits of the appeal based upon the provisions of the Hindu Succession Act (XXX of 1956). Reliance was placed upon Ss. 14 and 15 of that Act. We shall read the sections in so far as they are material for our present purposes : "14. Property of a female Hindu to be her absolute property (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. EXPLANATION : In this Sub-section, property includes both moveable and immoveable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhana immediately before the commencement of this Act. (2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gilt or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. 15. General rules of succession in the case of female Hindus (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16 : (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (ei) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in Sub-section (1) : (a)X X X X (b) Any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any prede- ceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified there in, but upon the heirs of the husband." The argument on behalf of the respondents is put thus ; As a result of these provisions, the class of persons known as reversioners under Hindu law is abolished. All property inherited by a female Hindu is her absolute property and after her death, the property goes under Section 15 to her Own heirs, although where it is inherited from her husband, her heirs will be the heirs of her husband. That being so, a suit to set aside an adoption made by a Hindu female, will not be maintainable after the coming into force of the Act, because the adoption affects her own property, which can no longer be treated as the estate of her husband. The widow does not act as a representative of such an estate and there are no reversionary rights therein; and hence there are no persons described as reversioners. The position of the widow making the adoption would not in any way be different from that of any male making an adoption to himself. Declaratory suits in relation to an alienation or adoption by a reversioner rented on the proposition that the widow is a limited owner who, in the normal course, is to pass on the inheritance to her husbands reversioners subject to her power to alienate it for necessity, to make an adoption or to relinquish her estate ;is a whole to the nearest reversioner. Even, though the suit out of which the appeal arises was commenced before the coming into force of the Act, as the Act has destroyed the conception altogether of a reversion as understood by the Hindu law, the suit should be dismissed as not maintainable.

(3.) It seems to us desirable before we proceed to consider this argument to state what, in our view is the effect of the provisions above-cited. It must be observed that Sub-section (1) of Section 14 refers only to "property possessed by a female Hindu," although it does not matter whether it was acquired before or after the commencement of the Act. Sub-section (2) however excludes property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order Or award prescribe a restricted estate in such property; that is to say, in these cases, the female Hindu may continue to own the property as a limited owner. To such property in her hands the old law must be presumed to continue to apply, unless there is something in Section 15 to preclude such application. But in our reading of Section 15 however there is nothing in it which has the effect of excluding the applicability of the old rules not only to such property but to property acquired by a Hindu woman before the commencement of the Act but of which she has irrevocably lost possession. Section 15 applies only to "the property of a female Hindu dying intestate" and if it happens to be the property inherited by her different courses of devolution are prescribed according as the property is inherited from her husband or her father-in-law on the one hand or is inherited from her father or mother. It is perfectly clear that where she has a restricted estate in any property such as is referred to in Sub-section (2) of Section 14, that property cannot be said to be her property at the time of her death. Section 15 therefore cannot apply to it and the property either reverts to the donor or the testator or follows any other mode of devolution prescribed by the gift, will, instrument, decree, order or award. Then again, where a Hindu woman alienates before the commencement of the Act, the whole or any part of the property which she has inherited and conveyed possession thereof to the transferee, the alienated property also cannot be properly described as the property of a female Hindu within the meaning of Section 15, because property possession of which she cannot recover cannot be called her property. The Act does not purport to affect property which has irrevocably passed out of her possession. Take again, a case of an adoption made by a Hindu widow before the commencement of the Act which turns out to be invalid. Its invalidity may be due to the non-existence of certain facts which the law requires, should be conditions precedent to the validity of an adoption such as for instance, an authority from a husband and consent of the nearest sapindas. If the widow should have represented as in the case in Dharam Kunwar v. Balwant Singh ILR 34 All, 393 (PC) to the adoptee or his father that she had such authority when she had none and brought about a change in the position of the adoptee as result of such a representation, she may be personally estopped from questioning the validity of the adoption and part at least of the property in her possession (excluding the part she might be entitled to under the Hindu Womens Rights to Property Act) must be deemed to have gone into the possession of the adoptee. The property which must be deemed in law to have gone into the possession of the adoptee cannot devolve as the property of the widow when she dies whatever may happen to the property to which she herself may be entitled under the Hindu Womens Right to Property Act. As regards the property which, so far as she was concerned must be deemed to have passed out of her possession, one would think that it continues! to be part of the estate of her deceased husband and it would be open, even under the law as it is to-day to the reversioners of her husband to claim! it on the ground that the adoption made by her was invalid and the widow did not obtain absolute estate under Section 14 in the property in the possession of the adoptee. If the adoption is on the other hand, absolutely invalid, i.e., for instance, where no DATTAHOMA was performed in a case where it should be, the widow must in law be supposed to be in possession of the whole of the estate of her husband despite the invalid adoption. To such a case Section 14 would apply in the first instance and at the time of her death. Section 15. A similar rule would conceivably apply to a surrender. If the limited owner is precluded from resiling from the surrender, then the property which she had inherited cannot be said to be possessed by her either in the sense that she is in actual) possession or in the wider sense that she has a right to possession. In such cases, Section 14 may not apply at all, the position being different, if the surrender is one which she herself can successfully impugn.