Hindu Succession Act, 1956 – Succession prior to the Act – Share of daughter vis-à-vis adopted son, if any – Doctrine of relation back – Applicability of – Father of the first appellant-plaintiff (since deceased) died in 1948 – She was born soon thereafter – Her mother adopted a son (first defendant) in 1949 – Suit filed by the plaintiff seeking partition of the plaint schedule properties was eventually dismissed by High Court reversing the concurrent findings of the Trial Court and First Appellate Court – On appeal, held: In the present case, admittedly the succession opened up prior to the 1956 Act coming into force – Further, there is no dispute about the adoption or the validity of the adoption – Thus, on applying the doctrine of relation back, it would be deemed that as on the date of the death of their father, the first defendant was very much notionally alive and he would become the sole coparcener – The adopted son (first defendant), being a son on applying the doctrine of relation back, would exclude the daughter-plaintiff – She would not be an heir, in view of the notional existence of the adopted son by virtue of the said doctrine – No case made out for any interference – Hindu Women’s Rights to Property Act, 1937 (XVIII of 1937). Dismissing the appeal, the Court
HELD: 1.1 There is no dispute about the adoption or about the validity of the adoption. It is, in fact, the case of the plaintiff that the first defendant was the adopted son. On the said basis, the further conclusion is inevitable that on applying the doctrine of relation back, it would be deemed that as on the date of the death of their father, the first defendant was very much notionally alive and he would become the sole coparcener. There can be no vacuum or break in vesting of title on the death of a person. This is a case where succession opened up admittedly prior to the Hindu Succession Act, 1956 coming into force. The plaintiff relied upon Section-72 of Part-I, Chapter VI-Order of Succession to Males in the Bombay State in Mulla on Hindu Law, 23rd Edition. There are other heirs but they are not being referred to. The Court must, in the facts of this case, proceed on the basis that the adopted son (first defendant), being a son on applying the doctrine of relation back, would exclude the daughter. This result flows from the statement that the persons in serial Nos.1 to 6, namely, son, son’s son (whose father is dead) and son’s son’s son (whose father and grandfather are both dead) inherit simultaneously. If there is a son, the daughter would not be entitled to share along with the son. The daughter, in other words, would not be a legal heir who would take simultaneously with the son. [Paras 1114][906-C-F; 907-C-E]
1.2 It is, undoubtedly, true that in view of the Hindu Women’s Rights to Property Act, 1937 (XVIII of 1937), the widow, inter-alia, is also recognized as an heir. There was, as on the date when the succession opened, in this case in the year 1948, the daughter (the appellant) who would not have any right. The daughter would not be a coparcener which she, undoubtedly, is under the present dispensation in view of the sweeping developments which took place in the matter of succession which have been ushered in as a result of the Hindu Succession Act and the changes that have been engrafted therein. The plaintiff daughter would not be an heir, in view of the notional existence of the adopted son by virtue of the doctrine of relation back. As far as the effect of remarriage of the mother of the plaintiff and the first defendant is concerned, again, in view of the fact that in the presence of the son, the daughter may stand excluded, it would again result in no right accruing to the plaintiff-daughter as a result of the remarriage. The first defendant, as son, would become the sole owner of the property. The appellants have not made out a case for any interference. [Paras 15, 16 and 18][907-E-H; 908-A, B-C] Govind Hanumantha Rao Desai v. Nagappa alias
Narahari Laxman Rao Deshpande and Sever Others
(1972) 1 SCC 515 : [1972] 3 SCR 200; Shripad
Gajanan Suthankar v. Dattaram Kashinath Suthankar and Others (1974) 2 SCC 156 : [1974] 3 SCR 474 – relied on.
Mulla on Hindu Law 23rd Edition – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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