LexGURAMMA BHRATAR CHANBASAPPA DESHMUKH AND ANOTHER versus MALAPPA
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4 S.C.R.
SUPREM:E COURT REPORTS
497
evidence being given. This case turned on wholly diffe-
rent facts and is of no assistance.
We may also refer to, In re N atesan (1 ) where it was
observed that the decision in Nazir Ahmed's ca.<e(')
might require reconsideration in view of the observations
of this Comt in Willie Slaney v. The State of Madhya
PradeshC). The actual decision in In re Natesan(") does
not affect the question before us and with regard to the
aforesaid observation made in it we think it enough on
the present occasion to say that we are unable to accept
it as correct.
We think that the High Court in the present case
rightly rejected the oral evidence of Mr. Dixit.
The result is that the appeal fails and is dismissed.
Appeal dismissed.
GURAMMA BHRATAR
CHANBASAPPA
DESH-
MUKH AND ANOTHER
v.
MALAPPA
(K. SuBBA RAo, RAGHUBAR DAYAL AND J. R. MunHOLKAR,
JJ.)
Hindu
LatV-foint family-Manager,
powers of-Gifts of
property to stranger and to daughter aftC1· marriage, validity of-
Adoption-Whether existence of son in embryo £nvalidates adop-
tion-partition-Sudras of Bombay Presidency-Share of adopted
son vis-a-vis natural born son.
'A' died on Jwuary 8, 1944. He left behind him three wives
and t\vo wido\vcd daughters, children of his pre-deceased wife.
The senior most widow filed a civil suit for partition and possession
of l/6th share after setting aside the alienations n1ade by her hus-
band on January 4 and 5, 1944.
It was alleged that at the time
of the death of '/\' his youngest \.vife \.Vas pregnant and that she
gave birth to a male child on October 4, 1944. On January 30, 1944,
the senior most widow took her sister's son in adoption. A few days
before his death 'A' executed two deeds of maintenance in favour
of his two wives (defendant Nos. 1 and 2) and also executed deeds
of gift in favour of widowed daughter, a son of an illegitimate
son and a relative.
Long before his death he also executed two
deeds viz on,t a deed of maintenance and a deed of gift in favour of
the senior most wido\.\' (the plaintiff). To this suit the two widows
were made defendants 1 and 2; the alleged adopted son, defendant 3,
(') A.LR. 1960 Mad. 443.
,,___,
(2) L. R. 63 !. A. 372.
( 3 ) [1955] 2 S.C.R. 1140.
1963
State of l:tt.:r
Pradc:1i
v
ShiS:,·h1<'1·a Singh
and OtlicrJ.
August 19,
1963
1963
Deshmukli
v.
Malappa
498
SUPREME COURT REPORTS
[1964]
the alleged posthumous son, defendant 4; and the alienees defen-
dants 5 to 8. These two appeals arise out of the certificate granted
by the High Court_
Held (1) that the existence of a son in embryo does not in-
validate an adoption.
Narayana Reddi v. Varadachala Reddi, S. A. No. 223 of
1859 M.S.D. 1859, p. 97, referred to.
Nagabhushanam v. Seshammagaru, (1878-8i) I.LR. 3 Mad. 18()
Shamvahoo v.
Dwarakadas Vasanji, (1888) I.LR. 12 Born. 202,
Dau/at Ram v. Ram Lal, ( 1907) l.L.R. 29 All 310, approved.
(2) that the High Court was right in affirming the alienation•
made in favour of the plaintiff and was equally justified in setting
aside the alienations made in favour of defendents 1 and 2. The
former documents were executed by uA" in 1937 and 1939 'vhen
he 'vas the sole surviving coparcenar whereas the latter documents
were executed when he had ceased to have that power because
the male child i.e., 4th defendant was already conceived.
(3) that a managing member
of
the family has power to
alienate for value joint family property either for family necessity
or for the benefit of the estate. The sole surviving member of a
Co-parcenary has an absolute power
to
alienate the family pro-
perty, as at the time of alienation there is no other me1nber \.vho
has joint interest in the family.
If another member 'vas conceived
in the family or inducted therein by adoption the power of the mana·
ger \Vas circumscribed as aforesaid and if the alienations were ma<le
by the manager or father for a purpose not binding on the estate,
they 'vould be voidable at the instance of subsequently born son
or adopted son.
Avdesh Kumar v. Zak_aul Hassain, I.LR. [ 1944 J All 612, Chan-
dramani v. fambeswara, A.LR. 1931 Mad. 550 and Bhagwat Prasad
Bahidar v. Debichaud Bogra, ( 1941) I.LR. 20 Pat. 727, referred to.
( 4) that a gift to a stranger of joint family property by the
manager of the family is void as he has not the absolute po,ver
oi disposal over the joint Hindu family property.
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