SHRIPAD GAJANAN SUTHANKAR versus DATTARAM KASHINATH SUTHANKAR AND ORS.

Citation: [1974] 3 S.C.R. 474 · Decided: 01-03-1974 · Supreme Court of India · Bench: D.G. PALEKAR · Disposal: Directions issued

Cited by 3 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

474 
SHRIPAD GAJANAN $UTHANKAR 
.. 
DATTARAM KASH!NATH SUTHANKAR AND ORS. 
March I, 1974 
. 
[D. o: PALEKAR, P. N. BHAGWATI AND v. R. KRISHNA !YER, JJ.J 
Hindu Law-Prior to Hindu SuCl't>ssio11 Act, 1956--Dearh of Copal'cener leaving 
it'idolf-Partition among 
other r:oparceners /ater~AdoptiolJ by widow- Share of 
adoPl~d son ill -coparcenary properly. 
· 
-
M: ha,d two sons-the first defe~dant and K. 
K died in 1921 leaving a widow ~nd 
a daughter.'' In-1944 there was'a partition between Mand the first defendant, and, 
in that partition, allotment (or residence and :i;naintenance of K's widow was made. 
Thereafter, M· 8ifted away his share, which he got in partition, to Uie first defendant's 
son. the second defendant (appeUant). In 1956, before the HinOu Succession Act 
came into force, the widow of K adopted her daughter's son (respondent) and he 
filed the suit for a fresh partition claiming a half share of the entire property ignoring 
the earlier partition and gift. 
' 
On the question of the rights and shares of the parties, 
HELD : (l) The firiding of the High Court that the adoption of the respondent 
was t~e and valid, both .from the ~ngles of custom and_ factun1, is established by 
t~e evidence. f476FJ 
·· 
(2) (a) Under. the Mitakshara School of Hindu Law a widow's adoption cannot 
be stultified by an anterior partition of the joint family and the adopted son can 
claim a· share as if he were begotten and alive when '~e adOptive father breathed his 
last. [48SE] 
(b) Nevertheless the fact um of partition .is not wiped out by the later adoption. 
[48SE-Fj 
(c) Any disposition, testamentary or inter rfl'os, lawfully made ;uitecedent to 
A 
B 
c 
D 
1he adoption is immune to challenge by the adopted son; l485FJ 
)!; 
(d) Lswful alienation, in this context; rnea::is not necessarily for a family neces· 
sity but .alienation made competently in accordance with law. [485F·G] 
(e) A widow's power of alienation is limited, and if only if the conditions set 
by the Hindu Law are fulfilled will the alienation bind a subsequently adopted ·son. 
So also the alienation by the Karta of an undivided family or transfer by a copar· 
cener governed by the Banaras School of Hindu Law; [485F-G] 
(f) Once partitioned validly, the share of a me1nber of a Mitakshara Hilidu 
F 
family in which his own issue have no right b}' birth, can be transferred by him at 
his will and such transfers, be they by will, gift or sale, bind the adopted son who 
comes later on the scene. [48.~G·H] 
(3) In computing the net available property for g:iving a share to the respondent, 
the property gifted by M to the second defendant has to be excluded while the allot-
ment for nlaintenance will have to be brought into the corpus. But, in calculating 
his share the adopted son's right, arising long after other proprictai'y events. should 
be worked out, not rigidly but justly. If the respondent is given his 1/3 share as at 
G 
the time when the partition took place; since M's share, which had been f_iftcd away, 
-should be ignored, the respondent will get his 1/3 share of the entire family property 
from out of the 112 share of the first defendant got by him at the 194+partition. 
But jt would be uiifair to the first defendant 10 deprive him of such a large share 
n1erely because he had not parted with his properties before the rcspondcnf:i adop· 
tioa. Equally, it would be unjust to _the re<;p~~ent if he !8 given only 1/3 of the 
prop!rties given to the 1st d~fendant and rema1n1ng .with bun at the date of ado~ 
t!on. Th!refore, it would be emine.ntly just t~ divi~e the properties got by. the .first 
defendant at the 1944-partition, wJuch were with him at the date of adopbon, toto 
H 
two eq~al shares and award one share to the plaintiff-respondent. Hence, a dcci:cc 
should be passed (i) allowing the respondent an half share out of such P:ropcrties 
allotted to the fi;st defendant !-'oder the 19.W.partitio!l as wei:e with the fust d~fen· 
·dant at the date of adoption, including, therein, the umcs set apart for the .ma1nte· 
A 
B 
c 
D 
s. G. SUTHANKAR v. DATTARAM (Krishna Iyer, J.) 
475 
nance of the adoptive mother; (ii) directing profits to be paid to the plaintiff on that 
basis; and (iii) dh'ecting the ~tion of payment of maintenance by the first def en· 
danfs branch to the adoptive mother . .f479A·E; 485H-486G] 
Govind v. Nagappa, [19i2] 3 SCR 200, P. Ammal v. Rama/ingam, [1970] 3 SCR, 
894, Sriniva.r [1955), I S.C.R. 1;17; 24-45; Krishna Murtli

Excerpt shown. Read the full judgment & AI analysis in Lexace.