Gunamma (D) By Lrs.Dhanyakumar vs Shevantibai (D) By Lrs.. on 12 September, 2017

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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.

Signature Not Verified

Digitally signed by
VINOD LAKHINA
Date: 2017.09.14
18:09:28 IST
Reason:

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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]

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