Summary
A Hindu governed by the Bombay school of Mitakshara law died in March 1948, leaving a widow and daughters, including the plaintiff, who was born ten days later. In 1949 the widow adopted a son by registered deed. The daughter sued for partition claiming a half share with the adopted son, and the trial and first appellate courts decreed it. The High Court reversed, and the Supreme Court upheld the reversal. Under the doctrine of relation back, the adoption by the widow takes effect from the death of the adoptive father, so the adopted son is notionally deemed to have been alive then and became the sole coparcener. Succession having opened before the Hindu Succession Act, 1956, a daughter did not inherit alongside a son in the Bombay State, and the mother's remarriage conferred no right on her either.
Issues
- Whether, on a widow's adoption of a son in 1949, the doctrine of relation back made the adopted son the sole heir of a father who died in 1948, excluding a daughter born after his death.
- Whether the daughter acquired any share through her mother's remarriage or through a compromise between the adopted son and her step-sisters.
Provisions considered
- Act XVIII of 1937, Hindu Women's Rights to Property Act, 1937Although it recognised the widow as an heir, it gave the daughter no right when succession opened in 1948 in the presence of a son. (¶¶ 12, 15)
- Section 4, Hindu Succession Act, 1956Noted as having swept away earlier Hindu law texts for later successions, but inapplicable because succession here opened in 1948, before the Act. (¶¶ 10, 11, 15)
- Section 12, Hindu Adoptions and Maintenance Act, 1956Referred to in the extract from Shripad Gajanan Suthankar for post-Act adoptions taking effect from the date of adoption; the present adoption of 1949 was pre-statutory and governed by relation back. (¶ 10)
Held
- Adoption by a widow relates back to the date of the adoptive father's death, so the adopted son is deemed to have been born then and takes a coparcenary interest co-extensive with the deceased's; there can be no vacuum in the vesting of title (Govind Hanumantha Rao Desai; Shripad Gajanan Suthankar). (¶¶ 10, 11)
- Under the order of succession to males in the Bombay State governed by Mitakshara, the son, son's son and son's son's son inherit simultaneously and exclude the daughter. A daughter takes absolutely only where there are daughters and no son. (¶¶ 12, 13, 14)
- As succession opened in 1948, the daughter was neither a coparcener nor an heir in the notional presence of the adopted son, and the mother's remarriage therefore conferred no right on her; the adopted son became sole owner. (¶¶ 15, 16)
- The compromise between the adopted son and the step-sisters, to which the plaintiff was not a party, did not help her; no case of estoppel was before the Court. (¶ 17)
Result
Appeal dismissed; no order as to costs.