Supreme Court: The 3-Judges Bench of Fazl Ali, B.K. Mukherjea and Chandrasekhara Aiyar*, JJ., opined that it agreed with the finding of the Bombay High Court that there was ample material on record from which it could be held that Appellant 1, must have known, when he got the properties under the will of his father, that they were his separate properties, in which his sons had no interest and that with this knowledge he subsequently treated them as joint family properties belonging to himself and his three sons. The Supreme Court further opined that after considering the evidence, there was no scope for saying that Appellant 1 was not aware of his rights about the properties that he got under the will of his father and that he was labouring under a mistaken belief all along that they were all joint family properties. Thus, the Supreme Court confirmed the decree of the Bombay High Court and dismissed the appeal.
Background
The original suit was for partition of movable and immovable properties, and it was filed by Respondent 1, widow of one Vyomeshchandra, and two others, claiming as executors under the last will and codicil of Vyomeshchandra against Vyomeshchandra’s brothers. It was claimed that the properties were joint family properties of Janardan, Appellant 1 and his four sons, and that Respondent 1's husband, expressed his intention to separate himself from the family in 1928 and that he followed up this oral declaration by a written notice to the other members on 10-9-1929. He had also made a will on the previous date. This suit of Respondent 1 was resisted, and it was alleged that the properties were the separate self-acquired properties of Appellant 1, and that Respondent 1's husband had no share or interest therein.
Analysis, Law, and Decision
The Subordinate Judge held that the properties were the sole and absolute properties of Appellant 1 and that Respondent 1's husband had no share therein. The contention that even if the properties were regarded as the separate properties of Appellant 1, they became converted into joint family properties, was negatived by the Subordinate Judge on the ground that there was no satisfactory evidence to prove any such conversion. On the appeal, the Bombay High Court concurred with the findings of the Subordinate Judge that the properties which came to Appellant 1 under the will of his father were his separate properties.
The Subordinate Judge opined that Appellant 1 and his sons believed from the beginning that the properties were ancestral in the hands of Appellant 1 and with this belief and impression Appellant 1 made statement to that effect in 1906-1907, 1926, 1928, 1935 and 1936. There was however nothing from the evidence in this case that could prove that these statements were made by Appellant 1 knowingly and deliberately with a view to giving up his right to the separate properties and to convert it into joint family properties.
The Bombay High Court did not agree with the finding of the Subordinate Judge and thus, concluded that there was sufficient evidence before the Court to show that Appellant 1 knew, or must have known, that the properties he got under the will of his father were his separate properties and that he subsequently treated them as joint family properties. There was no scope for any mistaken belief on the part of Appellant 1. The Bombay High Court opined that “Appellant 1’s admissions and conduct could not be set aside as mistaken in fact or in law, and therefore, were not binding, but they were to be assessed as proceedings from a person who knew that the property was his own and he could treat it as he liked”.
Thus, the Bombay High Court decreed Respondent 1's suit after taking the view that Appellant had knowledge that the properties, he had got under his father’s will were his separate properties and that his conduct and admissions were much more consistent with his intention to convert it into joint family properties than with his intention to keep it separate. The Bombay High Court further observed that “the other admissions, whose admissibility in evidence could not be challenged for any such reason, were sought to be explained away on the ground that from the very commencement when Appellant 1 got the properties under his father’s will, he was labouring under the mistaken belief that they were joint family properties and that was why he made related statements on so many occasions”.
The Supreme Court noted that Virbhadra, Appellant 1's father was adopted in 1826 and after his death his three sons partitioned the properties in accordance with the directions contained in the father’s will keeping certain properties as joint for convenience of management. In proceedings taken at the instance of relations of the family subsequent to his adoption and prior to Virbhadra’s death, it was held that his adoption by his adoptive mother was invalid as some other person had already been adopted by his adoptive mother's husband. Therefore, Virbhadra could not be said to have got the properties from his adoptive father as joint family properties and if he got any title to them, it must have been by adverse possession against the rightful heirs or owners, and so, the property must be deemed to have been his self-acquired and separate property in which his sons, including Appellant 1 had no interest by birth.
Thus, the Supreme Court opined that it agreed with the finding of the Bombay High Court that there was ample material on record from which it could be held that Appellant 1, must have known, when he got the properties under the will of his father, that they were his separate properties, in which his sons had no interest and that with this knowledge he subsequently treated them as joint family properties belonging to himself and his three sons. The Supreme Court noted that Appellant 1 had submitted that “we three brothers had got property of our father through his will. Under the will, my son and my brother’s son, who were then in existence, were not given anything. There was no intention expressed by my father to give anything to his grandsons ”. Thus, the Supreme Court opined that after this evidence, there was no scope for saying that he was not aware of his rights about the properties that he got under the will and that he was labouring under a mistaken belief all along that they were all joint family properties.
The Supreme Court confirmed the decree of the Bombay High Court and dismissed the present appeal with costs of this Court payable by the appellants to the respondents.
[Mangesh Janardan Pathakji v. Jaymangavri, 1951 SCC 557, decided on 16-5-1951]
Note: Property acquired through adoption
Hindu law of adoption has been codified in the Hindu Adoptions and Maintenance Act, 1956 (‘Act'). Therefore, an adoption has to be made in accordance with the provisions of the Act. Any adoption made in contravention of the said provisions shall be void. But adoption made before 1956 according to prior Hindu Law, are valid under Section 5 of the Act. As per the Act, an adoption is either valid or void, and there is no voidable or invalid adoption. It cannot be also partly valid and partly void. A void adoption brings about no legal change in the status of the adopted person. The adopted child does not acquire any right in the adoptive family. Likewise, the child's rights in the natural family are not lost. After adoption, suppose the natural father alienates family property. If the adoption is valid, the alienation cannot be impeached by the adopted child. If the adoption is void, the adopted child can attack alienation as not binding on him/her.
Advocates who appeared in this case :
For the Appellants: R.J. Thakur, S.L. Chibber, Advocates
For the Respondents: B. Somayya, Senior Advocate
*Judgment authored by: Justice Chandrasekhara Aiyar
I am Somaskanda Advocate practicing in Benga .