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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.(S) 12579 OF 2017
[Arising out of Special Leave Petition
(Civil) No.20726 of 2007]
GUNAMMA (D) BY L.R. ...APPELLANT(S)
VERSUS
SHEVANTIBAI (D) BY L.R.
& ORS. ...RESPONDENT(S)
ORDER
1. Delay condoned.
2. Leave granted.
3. The original plaintiff/her legal
heir (substituted plaintiff) who has not
succeeded in all the three courts below is
in appeal before this Court upon grant of
special leave under Article 136 of the
Constitution of India.
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4. The original plaintiff – Gunamma
was a subject of 'Sangli State' which
merged in the Union of India in the year
1948. There was a Sangli Widow's Right to
Property Act of 1935 (Act No.1 of 1935)
[hereinafter referred to as “the Sangli
Act”] which governed, inter alia, the right
of a widow to ask for partition. Under
Section 1(E) of the Sangli Act, Hindu women
who had become widows prior to the passing
of the Sangli Act in the year 1935 were
also entitled to claim the benefits of the
provisions of the Sangli Act. The following
extract of the relevant parts of the Sangli
Act would be required to be made at the
very outset for a proper appreciation of
the issues arising in the present case.
“An Act regarding the right of
a widow to get a share by
inheritance of partition from
males.
Object. Whereas it is
expedient to remove doubts and
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disparities existing in the
Hindu Shastras, in respect of
the females in the property
which is to come by way of
inheritance or partition, and
whereas it is expedient and
necessary to confer new rights,
and whereas it is further
necessary to place the status
of females on satisfactory
basis, it is hereby enacted as
follows:-
1. Right of a widow to ask
for partition - Upon the death
of the husband of a Hindu woman
while, though he continued to
remain (as a member) in the
Joint family, the widow shall
become a 'Sahabhagidar' in
place of (her) husband and she
shall be entitled to claim by
partition such share (Hissa) in
the joint family properties
which her husband could have
claimed; provided that the word
'widow' shall not include a
widow of a Hindu who shall not
be entitled to claim partition
under the Hindu Law.
(A) The nature of a joint
family shall not change merely
because a widow in a joint
family takes (her) share.
(B) x x x x x x
(C) x x x x x x
(D) The right (Hak) for
partition allowed under this
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Act shall, along with the right
(Hak) for maintenance, be an
alternative right (Hak);
provided that a Hindu widow, if
she once claims any of the
rights of partition or
maintenance shall not claim the
other right.
(E) Hindu women who may have
become widows prior to the
passing of this Act may also
claim benefit of the provisions
of this Act; provided, however,
widows who may have got their
maintenance decided either
through Court or out of Court,
shall not be entitled to claim
partition.
Explanation:
(i) x x x x x
(ii) x x x x x
(iii) 'Sahabhagidar' means that
she will get the rights which
male 'Sahabhagidars' have got
but unless there is a
partition, she cannot make an
adoption without the consent of
the other 'Sahabhagidars'; and
as a Sahabhagidar she has no
right to alienate or otherwise
deal with her right to sue.
Nor will it be liable for being
sold for debts incurred by
her.”
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5. Upon merger of 'Sangli State' in
the territories of the 'Union of India' the
Sangli Act was repealed by the Indian State
(Application of Laws) Order, 1948
[hereinafter referred to as “the Order of
1948”]. The repealing provision, which is
as follows, would also require a specific
notice.
“Repeal of enactments in force
in any Indian State or part
thereof and corresponding to
the enactments in force in the
Province of Bombay and extended
to any such state under
paragraph 3 shall stand
repealed;
Provided that the repeal by
this Order of any such
enactments shall not affect the
validity, invalidity, effect or
consequence of any thing
already done, or suffered or
any right, title obligation or
liability already acquired, or
incurred or any remedy or
proceeding in respect thereof
or any release or discharge of
or from any debt, penalty,
obligation, liability claim or
demand or any indemnity already
granted or the proof of any
past act or thing.”
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6. Having set out the relevant
provisions of the Sangli Act we may now
advert to the facts of the case.
The common ancestor of the parties is
one Mallappa who had two sons Damodar and
Baburao. The second son Baburao and his
wife Saraswathi died issueless. The first
son Damodar who died in the year 1932 had
three wives, namely, Rukmabai, Rajmathi and
the plaintiff Gunamma. Damodar through his
first wife had a son also known as Mallappa
who died in the year 1934 (hereinafter
referred to as “Mallappa-2”). The
aforesaid Mallappa-2 had married one
Sevanthibai i.e. defendant No.1. The said
defendant No.1 was disposing of the
properties of which the common ancestor
Mallappa was the owner. The plaintiff had,
therefore, filed a suit for partition based
on her rights under the Sangli Act. During
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the pendency of the suit, the original
plaintiff died and her legal heir (adopted
son) was impleaded as plaintiff in the said
suit. Death of the original plaintiff
occurred in the year 1983 while the
adoption took place in the year 1978. The
suit was dismissed. In First Appeal, by the
substituted plaintiff (appellant herein),
all 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
plaintiff's 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
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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 Women's 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
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at the time of the her husband's (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
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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.
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11. An argument has been sought to be
raised relying on the decision of this
court in the case of Ravinder Kumar Sharma
vs. State of Assam and others1 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
1 AIR 1999 SC 3571
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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
Women's Rights to Proprty 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 Women's 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 Women's Rights to Property Act, 1937
do not find any reflection in the
provisions of the Sangli Act which has been
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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 provisionis 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
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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.
15. For the aforesaid reasons, we find
that the view taken by the three forums
below would require correction.
Accordingly, we set aside the decree of
dismissal of the suit and decree the
plaintiff's suit to the extent of the
plaintiff's right to claim partition and
separate possession of the suit property.
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16. Consequently and in the light of
the above we allow this appeal and set
aside the order of the High court.
....................,J.
(RANJAN GOGOI)
...................,J.
(ABHAY MANOHAR SAPRE)
...................,J.
(NAVIN SINHA)
NEW DELHI
SEPTEMBER 12, 2017
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ITEM NO.5 COURT NO.3 SECTION IV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (C) NO(S). 20726/2007
(ARISING OUT OF IMPUGNED FINAL JUDGMENT AND ORDER DATED 10-04-2007
IN RSA NO. 601/2000 PASSED BY THE HIGH COURT OF KARNATAKA AT
BENGALURU)
GUNAMMA (D) BY L.R. PETITIONER(S)
VERSUS
SHEVANTIBAI (D) BY L.R. & ORS. RESPONDENT(S)
Date : 12-09-2017 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE
HON'BLE MR. JUSTICE NAVIN SINHA
For Petitioner(s) Mr. Mallikarjun S. Mylar, Adv.
Mr. F.S. Baratakke, Adv.
Ms. S. Usha Reddy, AOR
For Respondent(s) Mr. Vivek C. Solshe, Adv.
Mr. Amol B. Karande, Adv.
Mr. C. G. Solshe, AOR
UPON hearing the counsel the Court made the following
O R D E R
Delay condoned.
Leave granted.
The appeal is allowed in terms of the signed
order.
[VINOD LAKHINA] [ASHA SONI]
AR-cum-PS BRANCH OFFICER
[SIGNED ORDER IS PLACED ON THE FILE]
