Case name: – Smt. Sitabai and Anr. Vs Ramchandra
Citation: – AIR 1970 SC 343
Date of judgement: – 20 August, 1969
Bench: – J.C Shah (Acting C.J.) and V. Ramaswami and A.N. Grover, JJ
Plaintiff: – Smt. Sitabai
Defendant: – Ramchandra
Case references: – Gowli Buddanna v. Commissioner of Income-tax, Mysore 60 I.T.R. 293 (S.C.)
Facts:-
- Plaintiff 1 is the widow of deceased Bhagirath, who was brother of Dhulichand. After Bhagirath died, the plaintiff Sitabai was living with Dhulichand as a result of which connection, an illegitimate child defendant Ramchandra was born in 1935. Dhulichand died on March 13, 1958.
- Plaintiff 1 adopted plaintiff 2, Suresh Chandra and an adoption deed was executed on March 4, 1958. After the death of Dhulichand, Ramchandra took possession of the joint family properties.
- The plaintiffs therefore brought the present case for removal of the defendant, the illegitimate son of Dhulichand from the disputed properties. The defendant contested on the ground that Dhulichand had in his lifetime surrendered the properties entirely to him.
- The trial court decided all the issues and stated that Dhulichand was valid so far as half of his share in the properties was concerned and, therefore, defendant was entitled to claim half the share of the properties in dispute.
- The defendant appealed in High court, which states that on the date of adoption Dhulichand was the sole coparcener and there was nobody else to take a share of his property and plaintiff 2 had no concern with the coparcenary property in the hands of Dhulichand. Plaintiffs appealed for the same in Supreme Court.
Issue involved:-
Whether the son adopted by the widow becomes the son of the deceased husband and coparcener of a joint family?
Rationale:-
The apex court took reference of Clause (VI) of Section 11 and Section 12 of Hindu Adoptions and Maintenance Act, 1956 which states:
“The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption.
Section 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 replaced by those created by the adoption in the adoptive family;
Provided that, the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”
Obiter dicta:-
“Section 5(1) of Hindu Adoptions and Maintenance Act, 1956 states:
(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this chapter.
Section 6 deals with the requisites of a valid adoption and provides:
No adoption shall be valid unless-
(i) The person adopting has the capacity, and also the right, to take in adoption.
(ii) The person giving in adoption has the capacity to do so;
(iii) The person adopted is capable of being taken in adoption; and
(iv)The adoption is made in compliance with the other conditions mentioned in this Chapter.
Sections 7 and 8 relate to the capacity of a male Hindu and a female Hindu to take in adoption.
Under Section 7 any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption.
If he is married, requires the consent of his wife in connection with the adoption.
A person having more than one wife is required to have the consent of all his wives.
Under Section 8 any female Hindu, who is of sound mind and not a minor is stated to have capacity to take a son or a daughter in adoption. The language of this section shows that all females except a wife have capacity to adopt a son or a daughter.
Thus, an unmarried female or a divorcee or a widow has the legal capacity to take a son or a daughter in adoption. “
Judgement:-
The Supreme Court set aside the decree passed by the High Court and further allowed the decree of trial court granting the half share of the joint family properties.
Conclusion:-
The present case states the dispute regarding the Joint Hindu Family property between the son born in the family and an adoptive son. The dispute arose between the two regarding who will get the family properties.
Plaintiff 2 is the adopted son and the widow filed a suit referring Section 11 and 12 of the Hindu Adoption and Maintenance Act, 1956 whereas the defendant contested that he should be entitled to get all the property in regard of the will which Dhulichand created to be executed after his death. The trial court states that defendant was entitled to claim half the share of properties in dispute.
Further, the defendant made an appeal where the High court ruled in his favour and dismissed the suit entirely. After this, the plaintiffs appealed before Supreme Court where the order made by the High Court was set aside and retained the decree passed by the trial Judge.