KASABAI TUKARAM KARVAR & ORS. versus NIVRUTI (DEAD) THROUGH LEGAL HEIRS & ORS

Citation: [2022] 5 S.C.R. 899 · Decided: 20-07-2022 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Dismissed

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

Judgment (excerpt)

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899
KASABAI TUKARAM KARVAR & ORS.
v.
NIVRUTI (DEAD) THROUGH LEGAL HEIRS & ORS.
(Civil Appeal No. 6076 of 2010)
JULY 20, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
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
[2022] 5 S.C.R. 899
899
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SUPREME COURT REPORTS
[2022] 5 S.C.R.
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 11-
14][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
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and Others (1974) 2 SCC 156 : [1974] 3 SCR 474 –
relied on.
Mulla o

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