DHARMA SHAMRAO AGALAWE versus PANDURANG MIRAGU AGALAWE & ORS.

Citation: [1988] 2 S.C.R. 1077 · Decided: 22-02-1988 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Dismissed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

I 
DHARMA SHAMRAO AGALAWE 
v. 
PANDURANG MIRAGU AGALAWE & ORS. 
FEBRUARY 22, 1988 
A 
IE.S. VENKATARAMIAH AND K.N. SINGH, JJ.) 
B 
Hindu Adoptions and Maintenance Act, 1956-Section 12-
;. 
Proviso (c)-Interpretation of-Whether a person adopted by a Hindu 
widow can claim share in the joint family property which had devolved 
on a sole surviving coparcener on the death of the husband of the widow 
who took him in adoption-Whether it bars filing of a suit for that 
C 
).purpose. 
j 
' 
Hindu Law-Mitakshara School-Joint family property devol-
ving on a sole coparcener-Whether remains joint family property--
Distinction between powers of manager of joint family property and 
sole surviving coparcener-Whether a person adopted by a widow after 
D 
the Hindu Adoption and Maintenance Act, 1956 came into force can 
claim share in the joint family property which had devolved on a sole 
coparcener prior to the Act. 
A person had two sons, the appellant-Dharma and another 
t 
Miragn. Miragn died issueless in 1928 leaving behind his widow, 
respondent No. 2. The Joint family property devolved on the appellant 
as sole surviving coparcener. The appellant disposed of certain proper-
E 
ties. In 1956 the Hindu Adoptions and Maintenance Act, 1956 came into 
force. In 1968 the widow took respondent No. l in adoption. Respon-
dent Nos. l and 2 filed a suit for partition and separate possession of 
one-half share in the property of the joint family. Trial Court dismissed 
F 
~. J !he suit. Respondent Nos. t and 2 filed an appeal which was allowed l>y 
· ~the District Jndge and a preliminliry decree for partition and separate 
possession was passed. The appellant filed an appeal before the High 
Court and the High Court affirmed the decree passed by the District 
Judge. Hence this appeal by special leave. The contention of the appel· 
lant was that respondent No. t could not divest him of any part of the 
G 
estate which had been vested in him lief ore the adoption of respondent 
...._ 
No. l in view of clause (c) of the proviso to section 12 of the Act. 
Dismissing the appeal, this Court, 
HELD: The Joint family property does not cease to he joint fam· 
ily property when it passes to the hands of a sole surviving coparcener.. H 
llJT.7 
1078 
SUPREME COURT REPORTS 
[1988] 2 S.C.R. 
A If a son is born to the sole surviving coparcener, the said properties 
'f 
become the joint family properties in his hands and in the hands of his 
son. Theonly·dift'erence between therightofamanagerofajointHindu 
/'-
• 
family over the joint family properties where there are two or more 
coparceners and the right of a sole surviving coparceners in respect of 
the joint family properties is that while the former can alieD11te the joint 
B family properties only for legal necessity or for family benefit, the latter 
is entitled to dispose of the coparcenary property as if it were his sepa-
t 
rate property as long a& he remains a sole surviving coparcener and he 
may sell or mortgage the coparcenary properfy even though there is no 
' 
legal necessity or family benefit or may even make a gift of the coparce-
-
nary propei-ty. If a son is subseqnently born to or adopted by the sole 
C surviving coparcener or a new coparcener is inducted into the family on 
) 
an adoption made by a widow of a deceased coparcener an alienation /-
made by the sole surviving coparcener before the birth of a new· 
" 
coparcener or the induction of a coparcener by adoption into the family 
whether by way of sale, mortgage or gift would however stand, for the 
coparcener who is born or adopted after the alienation cannot object to 
D alienations made before he was begotten or adopted. f1085G-H; 1086A-C] 
In the instant case the joint family properties which belonged to 
the joint family consisting of Dhanna-the appellant and his brother 
Miragu continued to retain the character of joint family properties in 
the hands of Dharma-the appellant as Champabai, the widow of 
E 
Miragu was still alive and continued to enjoy the right of maintenance 
1 
out of the said joint family properties. Pandurang-the tst respondent 
on adoption became the adopted son of Miragu and became a copar· 
,,,..: 
cener with Dharma-the appellant in the joint family properties. When 
once he became a member~ coparcenary which owned the joint 
family properties he was entitled to institute a suit for partition and 
F 
separate possession of his one-half share in the joint family properties, 
of course, except 

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