{"id":50789,"date":"1962-02-23T00:00:00","date_gmt":"1962-02-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-s-munna-lal-vs-s-s-rajkumar-and-others-on-23-february-1962"},"modified":"2015-06-21T08:00:56","modified_gmt":"2015-06-21T02:30:56","slug":"s-s-munna-lal-vs-s-s-rajkumar-and-others-on-23-february-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-s-munna-lal-vs-s-s-rajkumar-and-others-on-23-february-1962","title":{"rendered":"S. S. Munna Lal vs S. S. Rajkumar And Others on 23 February, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S. S. Munna Lal vs S. S. Rajkumar And Others on 23 February, 1962<\/div>\n
           PETITIONER:\nS.   S. MUNNA LAL\n\n\tVs.\n\nRESPONDENT:\nS.   S. RAJKUMAR AND OTHERS\n\nDATE OF JUDGMENT:\n23\/02\/1962\n\nBENCH:\n\n\nACT:\nHindu  Law--Jains--Adoption--Widow,  if\t can  adopt  without\nexpress\t  authority  of\t husband--Preliminary\tdecree\t for\npartition declaring widow's share--Whether share \"possessed\"\nby widow--Death of widow--If share reverts to  estate--Hindu\nSuccession Act, 1956 (30 of 1956), ss. 4,14,15 and 16.\n\n\n\nHEADNOTE:\nG, a Digamber Jain of the, Porwal sect, died in 1934 leaving\nbehind\this  widow Smt.\t K, his son G who died in  1939\t and\nthree  grandsons M, P and R. In 1952 M's son S filed a\tsuit\nfor  partition\tof the joint family  properties.   Rajkumar,\nclaiming  to be a son of P adopted by his widow,  claimed  a\n1\/4th share in the joint family property.  The adoption\t was\nchallenged on the ground that no express authority had\tbeen\ngiven by P to his widow to adopt.  The trial court held that\nno express authority was required by a sinless Jain widow to\nadopt  a  son and that the adoption was\t duly  and  properly\nmade.\tAccordingly,  a\t preliminary  decree  declaring\t the\nshares\tof Smt.\t K, the branch of M, the branch of R and  of\nRajkumar  to  be 1\/4th each was passed.\t M and\tothers\tpre-\nferred\tan  appeal  to the High- Court\tmainly\tagainst\t the\nfindings  on the question of adoption.\tDuring the  pendency\nof  the\t appeal, the Hindu Succession Act, 1956,  came\tinto\nforce.\t Shortly  thereafter Smt.  K died.  The\t High  Court\nupheld\t'.he decision of the trial court on the question  of\nthe adoption of Rajkumar.  With respect to the share of Smt.\nK  the\tHigh Court held that her interest  declared  by\t the\npreliminary  decree  was  inchoate, that  she  never  became\n\"possessed\",\n419\nof any share within the meaning of s 14 of the Act and\tthat\nit  remained  joint family property which  became  divisible\namongst\t the parties proportionately to their  shares.\t The\nappellants  contended  that  the adoption  of  Rajkumar\t was\ninvalid\t as no custom applicable to the Porwal sect  of\t the\njains  had  been  established empowering a  widow  to  adopt\nwithout\t the  authority of her husband and  that  the  1\/4th\nshare  of  Smt.\t K declared by the  preliminary\t decree\t had\nbecome\ther absolute property by virtue of s. 14 of the\t Act\nand upon her death it descended to her grandsons M and R  to\nthe exclusion of other parties.\nHeld,  that the adoption of Rajkumar was valid.\t  A  sonless\nJain  widow could adopt a son without the express  authority\nof her husband.\t Such a custom among the Jains not domiciled\nin the States of Madras and the Punjab) has been  recognised\nby  judicial  decisions spread over a period longer  than  a\ncentury.   Though  none of these decisions  related  to\t the\nPorwal sect of Jabalpur to which the parties belonged.\tThey\nlaid  down  a  general\tcustom\tof  the\t jains\twhich\twere\napplicable  to\tthe parties.  The  decisions  proceeded\t not\nupon. any custom peculiar to any locality or to any sect  of\nthe  jains  but.  upon\tgeneral custom\twhich  had  by\tlong\nacceptance become part of the law applicable to them.  Where\na custom is repeatedly brought to the notice of the  Courts,\nthe  courts  may held that custom introduced  into  the\t law\nwithout the necessity of proof in each individual case.\nPemraj\tv. Mst.\t Chand Kanwar, (1947) L. R. 74 1. A. 224 and\nMangibai Gulabchand v. Suganchand Bhikamchand, A.I.R. (1948)\nP. C. 177, relied on.\nSheokuarbai  v.Jeoraj,\tA.I.R. (1921)  P.C.  77,  Saraswathi\nAmmal  v. ,Jagadambal, (1953) S.C.R. 1939, Maharajah  Govind\nnath Ray v. Gulal Chand, (1833) 5 Sel.\tRep. 276, Bhagwandas\nTejmal\tv. Rajmal Alias Hiralal Lachmindas, (1873)  10\tBom.\nH.C. Rep. 241, Sheo Singh Rai v. Mst.  Dakho and Morari\t Lal\n(1878)\tL.R. 5 1. A. 87, Lakhmi Chand v. Gatto\tBai,  (1886)\nI.L.R.\t8 All. 319, Manik Cha nd Golecha v.  Jagit  Settani,\n(1889) I.L.R. 17 Cal. 518, Harar nabh Parshad alias  Rajajee\nv.  Mangil Das, (1899) I. L. R. 27 Cal. 379,  ManoharLal  v.\nBanarsi\t Das (1907) I. L. R. 29 All. 495, Asharfi  Kumar  v.\nRupchand,  (1908)  I.L.R. 30 All. 197, Rup Chand  v.  Jambu,\nPrasad\t(1910)\tI.L.R.\t32  All,  2  47,  Jiwaraj  v.\tMst.\nSheokuwarbai,  A.I.R. (1920) Nag. 162, Banarsi Das v.  Sumat\nPrasad,\t (1936) I.L.R. 58 All. 1019 and Rama Rao v. Raja  of\nPittapur, (1918) L. R. 43 1. A. 148, referred to.\nHeld,  further that the 1\/4th share of Smt.  K\tdeclared  by\nthe preliminury decree was \"possessed\" by her and on her\n420\ndeath  it  descended  to her grandsons\tin  accordance\twith\nprovisions  of\tss.  15\t and  16  of  the  Act.\t  The\tword\n\"possessed\"  in s. 14 was used in a broad sense meaning\t the\nstate of owing or having in one's power.  The rule laid down\nby the Privy Council that till actual division of the  share\ndeclared in her favour by a preliminary decree for partition\nof  the,joint  family prop\" a Hindu wife or mother  was\t not\nrecognised  as\towner of that share cannot apply  after\t the\nenactment  of the Hindu Succession Act, 1956.  Section 4  of\nthe  Act  made\tit clear that the  Legislature\tintended  to\nsupersede  the\trules of Hindu law on all rs in\t respect  of\nwhich there was an express provision made in the Act.\nGumalapura  Taggina Matada Kotturuswami v.  Setra  Veerayya,<\/a>\n(1959) 1 Supp.\tS.C.R. 968 and Pratapmull Agarwalla v. Dhanabati\nBibi, (1935) L.R. 63 I.A. 33, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 130 of 61.
\nAppeal\tby special leave from the judgment and decree  dated
\nApril  25,  1959 of the Madhya Pradesh High Court  in  First
\nAppeal No. 139 of 1955.\n<\/p>\n
M.C. Setalvad, Attorney-General of India, S. T. Desai, J.
\nB.  Dadachanji,\t 0. C. Mathur and Ravinder Narain,  for\t the
\nappellants.\n<\/p>\n
Sarjoo Prasad and G. C. Mathur, for respondents No. 1 and 2.
\nGanpat Rai, for respondent No. 3.\n<\/p>\n
1962.  February 23.  The Judgment of the Court was delivered
\nby
\nSHAH,  J.-This\tappeal\twith special leave  is\tagainst\t the
\ndecree\tof  the\t Madhya Pradesh High  Court  confirming\t the
\ndecree\tof  the 1st Additional District Judge,\tJabalpur  in
\nCivil Suit No. 12-A of 1952.\n<\/p>\n
The  dispute  between  the  parties  arose  in\ta  suit\t for
\npartition  of  joint  family  property.\t  The  parties\t are
\nDigambar  Jains\t of  the Porwal Sect and  are  residents  of
\nJabalpur which at the material time
\n 421<\/span>
\nwas in Madhya Pradesh.\tThe following pedigree explains\t the
\nrelationship between the parties
\nGaribdas=Mst.  Khilonabai
\nd. 24.7.34 (Def. 3) d.3.7.56
\nGulzarilal
\nd. 13.4.39
\nMunnalal\t      Padamchand d.10.1.36\t  Ramchand
\n(Def 1)\t\t\t\t\t\t  (Def 2)
\nPyaribabu\t      widow Bhuribai\t\t  Chandrani-\n<\/p>\n
\t\t\t\t\t\t  bahu
\n(Def. 4)\t      (Def. 11)\t\t\t  (Def. 8)
\n\t\t      Adupted son Rajkumar
\n\t\t      (Def. 12) adopted 26.7.52
\nSaheblal      Ballu\t Nand\t      Hiralal\t    Ishwari
\n\t\t\t Kumar\t\t\t    Prasad
\n(Plaintiff)   (dead)\t(Def. 5)      (Def. 6)\t    (Def.7)
\nRajendra Kumar\t\t Abhay Kumar
\n(Def 9)\t\t\t (Def. 10)
\nSaheblal  son of Munnalal filed Suit No. 12A of 1952 in\t the
\nCourt  of the 1st Additional Subordinate Judge, Jabalpur  on
\nJune  21,  1952,  for a decree\tof  partition  and  separate
\npossession of his 1\/12th share in the joint family property.
\nHe  claimed  that in the property his  father’s\t branch\t was
\nentitled  to  have a half share and the remaining  half\t was
\nowned by
\n422<\/span>
\nRam  Chand  and his branch.  The Additional  District  Judge
\nordered\t that  Khilonabai grandmother of  Munnalal  and\t Ram
\nchand-the wives of Munnalal and Ramchand and their sons\t and
\nBhuribai  (widow of Padamchand) and Rajkumar who claimed  to
\nbe a son of Padam Chand by adoption by Bhuribai on July\t 26,
\n1952, be impleaded as defendants to the suit.
\nAt the trial of the suit the right of Saheblal to a share in
\nthe  property was Dot questioned-. the\tdispute\t principally
\nturned\tupon the claim made by Bhuribai and her adopted\t son
\nRajkumar  to a share in the property.  Padamchand  had\tdied
\nbefore the enactment of the Hindu Womens’ Rigbt to  Property
\nAct,  1937, and his widow could not claim by virtue of\tthat
\nAct a share in the property of the family.  But Bhuribai and
\nRajkumar  pleaded  that\t the parties were  governed  in\t the
\nmatter\tof adoption by the customary law  prevalent  amongst
\nthe Jains of Central India, Madhya Pradesh, Vindhya Pradesh.
\nNorth  and Western India, and Rajkumar as a son\t adopted  by
\nBhuribai  to  Padam Chand became a coparcener in  the  joint
\nfamily\tand  entitled  to  a  share  in\t the  property\t and
\naccretions thereto.\n<\/p>\n
The  validity of the adoption of Rajkumar was challenged  on
\nmany grounds, one only of which is material in this  appeal.
\nIt  was submitted by the contesting defendants and  Bhuribai
\nhad  no authority express or implied from her husband  Padam
\nChand to adopt a son and that the adoption of Rajkumar as  a
\nson  without such authority was invalid.   ‘.the  Additional
\nDistrict Judge rejected this plea and ordered a\t preliminary
\ndecree\tfor  partition and declared that the  share  of\t the
\nplaintiff  was\t1\/24th,\t of Munnalal, his wife\tand  3\tsons
\ncollectively was 5\/24th, of Ramchand and his sons 1\/4th,  of
\nKhilonabai  1\/4th and the remaining 1\/4th share belonged  to
\nRajkumar.\n<\/p>\n
423<\/span><\/p>\n
Against\t them decree, Munnalal, Ramchand,  Khilonabai,\twife
\nand  sons of Munnalal and the wife and sons of Ramchand\t who
\nwere  defendants  1 to 10 preferred an appeal  to  the\tHigh
\nCourt of Madhya Pradesh.  During the pendency of this appeal
\nKhilonabai  died on July 3, 1956 and Ramchand  and  Munnalal
\napplied\t to  be impleaded as her  legal\t representatives  in
\nrespect\t  of  the  interest  in\t the  property\tawarded\t  to
\nKhilonabai  by\tthe  preliminary  decree.   By\torder  dated
\nDecember 12, 1957, the District Judge held that the interest
\nof Khilonabai devolved upon the applicants by virtue of\t ss.
\n15  and\t 16  of the Hindu Succession  Act,  1956  which\t was
\nbrought into operation on June 14, 1956, and that the  sons-
\nof Munnalal, Ramchand and Padam Chand could not take a share
\nin Khilonabai’s interest.\n<\/p>\n
Before\tthe High Court two questions were canvassed: (1)  as
\nto the factum and validity of the adoption of Rajkumar,\t and
\n(2)  devolution of the share of Khilonabai declared  by\t the
\npreliminary decree on her death.  The High Court upheld\t the
\nfinding of the trial Court that Rajkumar was in fact adopted
\nby  Bhuribai as a son to her husband on July 26,  1952,\t and
\nthat amongst the Jains residing in the North West  Province,
\nCentral\t India, Northern India and in Bombay a\twidow  could
\nadopt  a  son to her deceased husband  without\tany  express
\nauthority in that behalf In so holding the High Court relied
\nupon  the judgments of the Privy Council in Pemraj  v.\tMst.
\nChand\tKanwar\t and  Mangibai\tGulabchand   v.\t  Suganchand
\nBaikamcand  (1).  But the High Court diclined to accept\t the
\nview  of  the  trial  Court that  the  right  of  Khilonabai
\ndeclared  by the preliminary decree devolved  upon  Munnalal
\nand  Ramchand alone.  In their view,  Khilonabai’s  interest
\nunder  the decree being incohate was not “Possessed” by\t her
\nwithin. the meaning of s. 14
\n(1)  (1947) L.R. 74 I.A. 254.\n<\/p>\n
(2)  A.I.R. (1948) P.C. 177.\n<\/p>\n
424<\/span><\/p>\n
of  the\t Hindu\tSuccession Act, 1956, and on  her  death  it
\nmerged\tinto  the  estate, The High Court  observed  :\t“The
\nresult\tis  that the interest of Smt.\tKhilonabai  remained
\nincohate  and  fluctuating  so that  after  her\t death,\t the
\ninterest declared by the preliminary decree is available for
\npartition  as joint family property and\t consequently  ss.15
\nand  16 of the Hindu Succession Act are inapplicable to\t the
\ninterest.   As\tthe  property  never  became  her   absolute
\nproperty  by  virtue of s.14 of the Act, the  same  remained
\njoint family property.” Accordingly the decree of the  trial
\nCourt  was  modified  and 1\/3rd Share in  the  joint  family
\nproperty  was  awarded to Rajkumar, 1\/3rd to the  branch  of
\nMunnalal and the remaining 1\/3rd to the branch. of  Ramchand
\nand  adjustments were made on that footing in the shares  of
\nthe plaintiff and other members of the family.
\nIn  this appeal by defendant No. 1 (Munnalal)  2  (Ramchand)
\nand  4\tto 10, three contentions were raised :\t(1)  in\t the
\nabsence\t of  express authority from  her  husband,  Bhuribai
\ncould not adopt a son, (2) that the ‘interest of  Khilonabai
\nunder the preliminary decree became her absolute property by
\nvirtue of s.14 of the Hindu Succession Act, 1956 and on\t her
\ndeath it devolved upon her grandsons Munnalal and  Ramchand-
\ndefendants 1 and 2-and (3) the trial Court was in error\t in-
\ndelegating  to\ta Commissioner judicial function,  such\t as,
\nascertainment of property to be divided and effecting parti-
\ntion.\n<\/p>\n
The  third  question is easily answered.   The\ttrial  court
\nappointed  a  commissioner to propose a partition  of  joint
\nfamily\tproperty, and for that purpose the court  authorised
\nhim  to ascertain the property, the debts which\t the  family
\nowed  and also the individual liability of the\tparties\t for
\nthe  debts.  For deciding those questions  the\tCommissioner
\nwas empowered to record statements of the parties, frame
\n425<\/span>
\nissues\tand to record evidence as might be  necessary.\t The
\ncommissioner  was  also\t directed to  submit  his  proposals
\nrelating  to the right of Bhuribai to be maintained  out  of
\nthe  joint  family property.  This order,  it  appears,\t was
\npassed with the consent of all the parties.  It is true that
\nthe  decree drawn up by the trial Court is not\tstrictly  in
\naccordance  with the directions given in the judgment.\t But
\nit is manifest that the\t  trial\t Judge\tonly  directed\t the
\nCommissioner   to submit his proposals for partition of\t  the
\nproperty,  and for that purpose authorised him to  ascertain
\nthe  property  which  was available  for  partition  and  to
\nascertain  the\tliability  of  the  joint  family.   By\t  so
\nauthorising  the  Commissioner,\t the  trial  Court  did\t not
\nabdicate its functions to the comissioner : the commissioner
\nwas  merely called upon to make proposals for partition,  on
\nwhich  the  parties  would be heard,  and  the\tCourt  would
\nadjudicate  upon such proposals in the light of the  decree,
\nand  the contentions of the parties.  The proposals  of\t the
\ncommissioner  cannot from their very nature be binding\tupon
\nthe  parties nor the reasons in support thereof.  The  order
\nit  may\t be,  remembered was made with the  consent  of\t the
\nparties\t and  no  objection to the order  was,\tit  appears,
\npressed\t before\t the High Court.  We do not think  that\t any
\ncase is made out for modifying that part of the order.
\nThe parties to this dispute are Digamber Jains\t  of\t the
\nPorwal sect and are resident of Jabalpur.    Jains\thave
\ngenerally  been\t regarded  as heterodox Hindus\tand  in\t the
\nabsence\t of  special custom they are governed-by  the  rules
\napplicable  to Hindus.\tAs observed by the Privy Council  in
\nSheokuarbai  v. Jeoraff.(1) The Jains are of  Hindu  origin;
\nthey  are Hindu dissenters, and although as was pointed\t out
\nby  Mr. Mayne in paragraph 46 of his Hindu Law\tand  Usages-
\n“Generally adhering to ordinary Hindu law, that is, the\t law
\nof the three
\n(1)  A.I.R. (1921) P.C. 77.\n<\/p>\n
426<\/span><\/p>\n
superior castes, they recognise, no divine authority in\t the
\nVedas  and do not practise the Shradhs, or ceremony for\t the
\ndead.”\t“The  due performance of the Shradhs,  or  religious
\nceremonies  for\t the dead, is at the base of  the  religious
\ntheory of adoption, but the Jains; have so generally adopted
\nthe  Hindu law that the Hindu rules of adoption are  applied
\nto  them in the absence of some contrary usage x x  x.”\t But
\namongst the Jainsa custom enabling a widow to adopt a son to
\nher husband without express authority has been reco.  gnised
\nby  judicial  decisions spread over a period longer  than  a
\ncentury.   In  Pemraj  v.  Musammad  Chand  Kanwar(1),\t the
\nJudicial  Committee of the Privy Council after a  review  of
\nthe  case law observed : ”  x x x x, in many other  parts of
\nIndia”\t(parts\tother than the Provinces of Madras  and\t the
\nPunjab)\t “it has now been established by decisions based  on
\nevidence from widely separated districts and from  different
\nsects that the Jains observe the custom by which a widow may
\nadopt to her husband without his authority.  This custom  is
\nbased on religious tenants common to all sects of Jains, and
\nparticularly  their  disbelief\tof  the\t doctrine  that\t the
\nspiritual welfare of the deceased husband may be affected by
\nthe  adoption, and though it cannot be shown that in any  of
\nthe  decided cases the parties were of the Khandelwal  sect,
\nyet  in\t none  of the cases has\t a  distinction\t been  drawn
\nbetween\t  one  sect  and  another.   It\t is  now  in   their
\nLordship,%’  opinion  no longer premature to hold  that\t the
\ncustom\tprevails generally among all Jains except  in  those
\nareas  in which there are special reasons, not operative  in
\nthe  rest  of India, which explains why the custom  has\t not
\nestablished itself.  Mayne, in his treaties on Hindu Law and
\nUsage, at page 209, has lent the weight of his authority  to
\nthe  proposition that among the Jains, except in the  Madras
\nPresidency a sonless widow can adopt a son to her
\n(1)  (1947) L.K. 74 I.A. 254.\n<\/p>\n
427<\/span><\/p>\n
husband\t without  his  authority  or  the  consent  of\t his
\nsapindas”.  This view was reiterated by the Privy Council in
\na   case  reported  in\tMangibai   Gulabchand\tv.Suganchand
\nBhikamchand (1).\n<\/p>\n
The  Attorney General for the appellants, however,  contends
\nthat there is no evidence of a custom authorising the  widow
\nof  a Porwal Digamber Jain residing in Jabalpur to  adopt  a
\nson to her husband without express authority.  Counsel\tsub-
\nmitted\tthat the observations in the two cases\trelating  to
\nthe  custom of adoption must be restricted to the  sects  to
\nwhich the parties to these cases belonged, and in so far  as
\nthey  purport to extend the custom to all Jain residents  in
\nIndia outside Madras and the Punjab they are mere dicta\t and
\nnot  binding upon this Court.  In Pemraj’s case the  parties
\nbelonged  to the Khandelwal sect domiciled and\tresident  in
\nAjmer and in Mangibai’s case the parties were Marwari  Jains
\nof  the Vis-Oswal sect who having migrated from Jodhpur\t had
\nsettled\t down in the Thana District of the Bombay  Province,
\nbut   the  opinion  of\tthe  Judicial  Committee   expressly
\nproceeded  upon a well-recognised custom applicable  to\t all
\nJains  in the territory of India (excepting Madras  and\t the
\nPunjab) and not upon proof of a restricted custom  governing
\nthe   sects  of\t Jains\tto  which  the\t parties   belonged.
\nUndoubtedly, as observed by this Court in Saraswathi’  Ammal
\nv.  Jagadamhal\t(2)  in dealing with the  quantum  of  proof
\nrequired  to  prove  a\tfamily or loca I  custom,  ”  it  is
\nincumbent on a party getting up a custom to allege and prove
\nthe  custom on which he relies and it is not any  theory  of
\ncustom or deductions from other customs which can be made  a
\nrule  of  decision but only any customs\t applicable  to\t the
\nparties\t concerned  that  can be the  rule  of\tdecision  in
\nparticular case. x x x
\n(1).  A.I.R. (1948) P.C. 177.\n<\/p>\n
(2) (1953) S.C.R. 939.\n<\/p>\n
428<\/span><\/p>\n
Theory and custom are antitheses, custom cannot be a  matter
\nmere  of theory but must always be a matter of fact and\t one
\ncustom cannot be deducted from another.\t A community  living
\nin  one\t particular district may have evolved  a  particular
\ncustom\tbut from that it does not follow that the  community
\nliving in another district is necessarily following the same
\ncustom.” But the application of the custom to the parties to
\nthis  appeal  does not appear to proceed upon  analogies  or
\ndeductions.  It governs the parties, because the custom\t has
\nbecome\ta  part\t of the law applicable\tto  Jains  in  India
\n(except\t  in   Madras  and  the\t Punjab)  by  a\t  long\t and
\nuninterrupted course of acceptance.\n<\/p>\n
A   review  of\tthe  cases  decided  by\t  different   Courts
\nclearlyshows  that  the custom is  generally  applicable  to
\nJains  all over India, except the Jain domiciled  in  Madras
\nand  the  Punjab.  The earliest case of which  a  report  is
\navailable  is  Maharaja\t Govindnath Bay\t v.  Ray  Chand\t (1)
\ndecided by the Saddar Court Calcutta in 1933.  ‘in that case
\nthe  validity  of  an adoption by a Jain  ‘Widow  of  a\t son
\nwithout\t express authority from her husband was\t questioned.
\nThe Court after consulting the Pandits held that by Jain law
\na  sonless widow could adopt a son just as her\thusband\t for
\nthe  performance of religious rites and that the section  of
\nthe  vitis or priests to the adoption is not essential.\t  In
\nBhagwandas\t      Tejmal   V.   Rajmal   alias   Hiralal
\nLachmidas(2) the Bombay High Court-opined that the widow  of
\na Jain was a delegate either by express or implied authority
\nto adopt a son, but she could not delegate to another person
\nthat  authority\t to  adopt a son to her\t husband  after\t her
\ndeath.\tIn Sheo Singh Rai v. Mussumut Dakho and Moorari Lal,
\n(3) decided in 1878, the Privy ‘Council affirmed the view of
\nthe North West Provinces High Court that a sonless widow  of
\na  Jain had the right of adoption without the permission  of
\nher husband or the consent
\n(1) (1833) 5 Scl Rep 276.\n<\/p>\n
(2) (1873) 10 Bom.  H.C. Rep. 241.\n<\/p>\n
(3) (1878) L.R. 5 I.& 87
\n429<\/span>
\nof his heirs.  In that case before the Subordinate Judge and
\nbefore\tthe High Court evidence was recorded of\t the  custom
\napplicable  to Jains generally, in different place  such  as
\nDelhi,\tJaipur, Mathura, Banaras and it was held  that’\t the
\ncustom was established by evidence.  The parties to the suit
\nwere  Agarwal Jains of Meerut District, but decision of\t the
\nBoard proceeded upon a custom found on evidence to be common
\nto all Jains.  In Lakhmi Chand v. Catto Bai. (1) decided  in
\n1886, again the power of a Jain widow to adopt a son to\t her
\ndeceased husband was held proved.  In Manik Chand Golecha v.
\nJagat Settani, (2) decided in 1889, the High Court of Bengal
\nupheld\ta  custom in respect of adoption by a widow  of\t an.
\nOswal Jain.  The decision of the Court did not proceed\tupon
\nany  custom peculiar to the Oswal sect.\t In Harnabh  Pershad
\nalias Rajajee v. Mangil Das(3) decided in 1899, it was\theld
\nupon  the evidence consisting partly of\t judicial  decisions
\nand  partly of oral evidence that the custom that a  sonless
\nJain  widow  was  competent to adopt a son  to\ther  husband
\nwithout\t his permission or the consent of his  kinsmen,\t was
\nsufficiently established and that in this respect there\t was
\nno  material  difference  in the  custom  of  the  Aggarwal,
\nChoreewal  (Porwal), Khandwal and Oswal sects of the Jaim  ;
\nand  that  there was nothing to differentiate the  Jains  at
\nArrab  from the Jains elsewhere.  The judgment of  the\tcase
\nproceeded   upon  an  elaborate\t examination   of   numerous
\ninstances  in  which the custom was  held  established.\t  In
\nManohar\t Lal  v.  Banarsi Das(4) and  in  Asharfi  Kumar  v.
\nRupchand(5)  a similar custom was hold established.  In\t the
\nlatter\tcase  a large number of witnesses were\texamined  at
\ndifferent  places and on a review of the decisions  and\t the
\nevidence the Court held the custom proved.  The judgment  of
\nthe Allahabad
\n(1)  (1886) I.L.R. 8 All. 319.\n<\/p>\n
(2) (1889) I.L.R. 17 Cal. 5 1 8.\n<\/p>\n
(3) (1899) I.L.R. 27 Cal. 379.\n<\/p>\n
(4) (1907) 1.L.R. 29 All. 495.\n<\/p>\n
(5) (1908) I.L.R. 30 All.197
\n430<\/span>
\nHigh  Court  in\t Asharfi’s case was affirmed  by  the  Privy
\nCouncil\t in RupChand v. Jambu Prasad. (1) It may  be  stated
\nthat the right of a Jain widow to adopt without authority of
\nher husband was not questioned before the Privy Council.  In
\nJiwraj\tv..  Mt.   Sheokuwarbai the Court  of  the  Judicial
\nCommissioner’  Nagpur  held  that  the\tpermission  of\t the
\nhusband was    not necessary in the case of a Jain widow  to
\nadopt\t  a  son.  This case was also carried to  the  Privy
\nCouncil\t and  the judgment was affirmed\t in  Sheokuarbat  v.
\nJeoraj\t(3).  In Banarsi Das v. Samat Prasad (4)  a  similar
\ncustom\twas  held established.\tThe decisions in  all  these
\ncases proceeded not upon any custom peculiar to the  locali-
\nty, or to the sect of Jains to which they belonged, but upon
\nthe view that being Jains, they were governed by the  custom
\nwhich  had  by\tlong  acceptance  become  part\tof  the\t law
\napplicable to them.  It is well-settled that where a  custom
\nis  repeatedly\tbrought\t to the notice of the  Courts  of  a
\ncountry, the courts may hold that custom introduced into the
\nlaw without the necessity of proof in each. individual case.
\n(Rama Rao v. Raja of Pittapur) (5).\n<\/p>\n
The plea about the invalidity of the adoption of Rajkumar by
\nBburibai must therefore fail.\n<\/p>\n
Khilonabai  died after the Hindu Succession Act was  brought
\ninto  operation\t on June 14, 1956.  This Act by\t s.  2(1)(b)
\napplies\t to  Hindus  and also to persons who  are  Jains  by
\nreligion.   The\t preliminary decree was passed on  July\t 29,
\n1955,  and  thereby Khilonabai was declared  entitled  to  a
\nfourth\tshare in the property of the family.  Section 14  of
\nthe Hindu Succession Act, 1956 provides:\n<\/p>\n
\t      “14(1)  Any  property possessed by  a  female-
\n\t      Hindu,  whether acquired before or  after\t the
\n\t      commencement of this Act, shall be
\n\t      (1)   (1910) I.L.R. 32 All. 217.\n<\/p><\/blockquote>\n
\t      (3)   A.I.R. (1921) P.C. 77.\n<\/p><\/blockquote>\n
\t      (2)   A.I.R. (1920) Nag. 162.\n<\/p><\/blockquote>\n
\t      (4) (1936) I.L.R. 58 All. 1019,
\n\t      (5) (1918) L.R. 4 5 1.A. 148.\n<\/p><\/blockquote>\n
\t       431<\/span><\/p>\n
held  by  her  as full owner thereof and not  as  a  limited
\nowner.\n<\/p>\n
\t      EXPLANATION.   In this sub-section  ,property”
\n\t      includes\tboth movable property acquired by  a
\n\t      female Hindu by inheritance or devise, or at a
\n\t      partition,  or  in  lieu\tof  maintenance\t  or
\n\t      arrears  of maintenance, or by gift  from\t any
\n\t      person, whether a relative or not, before,  at
\n\t      or after her marriage, or by her own skill  or
\n\t      exertion,\t or by purchase or by  prescription,
\n\t      or in any other manner whatsoever, and also by
\n\t      such   property  held  by\t her  as   stridhana
\n\t      immediately  before the commencement  of\tthis
\n\t      Act.\n<\/p>\n
\t      (2)   Nothing  contained\tin  sub-section\t (1)
\n\t      shall apply to any property acquired by way of
\n\t      gift or- under a will or any other  instrument
\n\t      or under a decree or order of a civil court or
\n\t      under  an award where the terms of  the  gift,
\n\t      will or other instrument or the decree,  order
\n\t      or award prescribe a restricted estate in such
\n\t      property.”\n<\/p>\n
\t      Section 15 provides:\n<\/p>\n
\t      “115 (1) The property of a female Hindu  dying
\n\t      intestate shall devolve according to the rules
\n\t      set out in section 16,-\n<\/p>\n
\t      (a)   firstly,  upon  the sons  and  daughters
\n\t      (including the children of any predeceased son
\n\t      or daughter) and the husband;\n<\/p>\n
\t      (b)   secondly, upon the heirs of the husband;\n<\/p>\n
\t      (c)   thirdly’ upon the mother and father;\n<\/p>\n
\t      432<\/span><\/p>\n
\t      (d)   fourthly, upon the heirs of the father;\n<\/p>\n
\t      (e)   lastly, upon, the heirs of the mother;
\n(2)  Notwithstanding anything contained in sub-section (1),-\n<\/p>\n
\t      (a)   any\t property  inherited  by  a   female
\n\t      Hindu-   from  her  father  or  mother   shall
\n\t      devolve, in the absence of any son or daughter
\n\t      of the deceased (including the children of any
\n\t      predeceased  son\tor daughter)  not  upon\t the
\n\t      other heirs referred to in sub-section (1) in
\n\t      the order specified therein but upon the heirs
\n\t      of the father: and\n<\/p><\/blockquote>\n
\t      (b)   any property inherited by a female Hindu
\n\t      from  her\t husband or from  her  father-in-law
\n\t      shall  devolve, in the absence of any  son  or
\n\t      daughter\t of  the  deceased  (including\t the
\n\t      children\tof any predeceased son or  daughter)
\n\t      not  upon the other heirs referred to in\tsub-
\n\t      section  (1) in the order\t specified  therein,
\n\t      but upon the heirs of the husband.”\n<\/p><\/blockquote>\n
Section\t 16  which prescribes the order\t of  succession\t and
\nmanner\tof distribution among, the heirs of a  Hindu  female
\nprovides by Rule
\n\t      ,,Among the heirs specified in sub-section (1)
\n\t      of  section  15, those in one entry  shall  be
\n\t      preferred\t to those in any  succeeding  entry,
\n\t      and those included in the same entry shall
\n\t      take simultaneously.”\n<\/p>\n
433<\/span><\/p>\n
Counsel\t for  Rajkumar concedes, and in our judgment  he  is
\nright  in  so conceding that if the share  declared  by\t the
\npreliminary  decree  in\t favour of  Khilonabai\tis  property
\npossessed by her at the date of her death, it should devolve
\nupon  her grandsons Munnalal and Ramchand, to the  exclusion
\nof Rajkumar adopted son of Padam Chand.\n<\/p>\n
This  Court  in Gumalapara Taggina  Matada  Kotturuswami  v.
\nSetra Veeravva<\/a> (1) held that “The word “possessed” in s.  14
\nis used in a broad sense and in the context means the  state
\nof owning or having in one’s power”.  The preliminary decree
\ndeclared  that\tKhilonabai was entitled to a  share  in\t the
\nfamily ‘estate and the estate being with the family of which
\nshe was a member and in joint enjoyment, would be  possessed
\nby  her.  But counsel for Rajkumar submitted that under\t the
\npreliminary  decree  passed in the suit\t for  partition\t the
\ninterest  of Khilonabai in the estate was  merely  inchoate,
\nfor she had a mere right to be maintained out of the  estate
\nand  that her right continued to retain that character\ttill
\nactual\tdivision  was  made and the share  declared  by\t the
\npreliminary decree was separated to her: on her death before
\nactual division the inchoate interest again reverted to\t the
\nestate out of which it was carved.  Counsel relied upon\t the
\njudgment  of the judicial committee in Pratpamull  Agarwalla
\nv. Dhanabati Bibi (2) in support of his plea that under\t the
\nMitakshara law, when the family estate is divided a wife  or
\nmother is entitled to a share.. but is not recognised as the
\nowner  of such share until the division of the, property  is
\nactually made,as she has no preexisting right in the  estate
\nexcept a right of maintenance.\tCounsel submitted that\tthis
\nrule of Hindu law was not affected by anything contained  in
\ns. 14 of the Hindu Succession Act.\n<\/p>\n
By s. 14 (1) the Legislature sought to convert the  interest
\nof a Hindu female which under the
\n(1)  [1959] 1 Supp.  S.C.R. 968.\n<\/p>\n
(2)  (1935) L.R. 63 I.A 33.\n<\/p>\n
434<\/span><\/p>\n
Sastric\t Hindu\tlaw would have been regarded  as  a  limited
\ninterest  into an absolute interest and by  the\t explanation
\nthereto\t  gave\tto  the\t expression  property”\tthe   widest
\nconnotation.  The expression includes property acquired by a
\nHindu female by inheritance or devise, or at a partition, or
\nin lieu of maintenance or arrears of maintenance, or by gift
\nfrom  any  person, whether a relative or not, before  at  or
\nafter  her marriage, or by her own skill or exertion, or  by
\npurchase  or  by  prescription,\t or  in\t any  other   manner
\nwhatsoever.   By  s.  14(1) manifestly\tit  is\tintended  to
\nconvert\t the interest which a Hindu female has\tin  property
\nhowever\t restricted  the nature of that interest  under\t the
\nSastric Hindu law may be into absolute estate. Pratap mull’s
\ncase undoubtedly laid down that till actual division of\t the
\nshare  declared\t in her favour by a preliminary\t decree\t for
\npartition of the joint family estate a Hindu wife or mother,
\nwas  not  recognized as owner, but that rule cannot  in\t our
\njudgment  apply after the enactment of the Hindu  Succession
\nAct.   The  Act is a codifying enactment, and has  made\t far
\nreaching  changes  in  the structure of\t the  Hindu  law  of
\ninheritance,  and  succession.\tThe Act confers\t upon  Hindu
\nfemales\t full  rights of inheritance, and  sweeps  away\t the
\ntraditional limitations on her powers of dispositions  which
\nwere regarded under the Hindu law as inherent in her estate.
\nShe  it; under the Act regarded as a fresh stock of  descent
\nin  respect of property possessed by her at the time of\t her
\ndeath.\t It is true that under the Sastric Hindu,  law,\t the
\nshare  given to a Hindu widow on partition between her\tsons
\nor  her grandsons was in lieu of her right  to\tmaintenance.
\nShe   was  not\tentitled  to  claim  partition.\t   But\t the
\nLegislature by enacting the Hindu Women’s’ Right to Property
\nAct, 1937 made a significant departure in that branch of the
\nlaw:  the  Act gave a Hindu widow the same interest  in\t the
\nproperty
\n435<\/span>
\nwhich  her husband had at the time of his death, and if\t the
\nestate was partitioned she became owner in severally of\t her
\nshare, subject of course, to the restrictions on disposition
\nand  the peculiar rule of extinction of the estate on  death
\nactual or civil.  It cannot be amused having regard to\tthis
\ndevelopment  that in enacting 8. 14 of the Hindu  Succession
\nAct,  the  Legislature merely intended to declare  the\trule
\nenunciated  by\tthe  Privy  Council  in\t Pratapmulls   case.
\nSection\t 4  of\tthe Act gives an overriding  effect  to\t the
\nprovisions   of\t the  Act.   It\t enacts”Save  as   otherwise
\nexpressly provided in this Act,-\n<\/p>\n
\t      (a)  any text rule or interpretation of  Hindi
\n\t      law or any custom or usage as part of that law
\n\t      in  force immediately before the\tcommencement
\n\t      of  this Act shall cease to have ;effect\twith
\n\t      respect to ‘any matter for which provision  is
\n\t      made in this Act :\n<\/p><\/blockquote>\n
(b)  x\tx  x x X” Manifestly, the  legislature\tintended  to
\nsupersede  the rules of Hindu law on all matters in  respect
\nof  which  there was an express provision made in  the\tAct.
\nNormally  a  rights declared in an estate by  a\t preliminary
\ndecree\twould be regarded as property, and there is  nothing
\nin  the context in which s. 14 occurs or in the\t phraseology
\nused  by  the Legislature to warrant the view  that  such  a
\nright  declared in relation to the estate of a joint  family
\nin  favour  of\ta Hindu widow is  not  property\t within\t the
\nmeaning of s. 14.  In the light of the scheme of the Act and
\nits  avowed  purpose it. would be difficult,  without  doing
\nviolence  to the language used in the enactment,  to  assume
\nthat  a\t right declared in property in favour  of  a  person
\nunder  a decree for partition is not a right to property.  ,
\nIf under a preliminary decree the right in favour of a Hindu
\nmale be regarded as property the right declared in favour of
\na Hindu female must also be regarded
\n436<\/span>
\nas property.  The High Court was therefore, in our judgment,
\nin  error  in holding that the right declared in  favour  of
\nKhilonabai  was\t not possessed by her, nor are\twe  able  to
\nagree  with  the submission of the learned counsel  for\t Raj
\nKumar  that it was not property within the meaning of s.  14
\nof the Act.\n<\/p>\n
On that view of the case, by virtue of so. 15 and 16 of\t the
\nAct, the interest declared in favour of Khilonabai  devolved
\nupon her sons Munnalal and Ramohand to the exclusion of\t her
\ngrandson  Rajkumar.  The decree passed by the High Court  is
\ntherefore modified in this respect and the decree passed  by
\nthe  trial  Court restored.  Having regard  to\tthe  partial
\nsuccess\t of the parties, there will be no order as to  costs
\nin this appeal and in the High Court.\n<\/p>\n
Appeal partly allowed<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S. S. Munna Lal vs S. S. Rajkumar And Others on 23 February, 1962 PETITIONER: S. S. MUNNA LAL Vs. RESPONDENT: S. S. RAJKUMAR AND OTHERS DATE OF JUDGMENT: 23\/02\/1962 BENCH: ACT: Hindu Law–Jains–Adoption–Widow, if can adopt without express authority of husband–Preliminary decree for partition declaring widow’s share–Whether share “possessed” by […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-50789","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS. S. Munna Lal vs S. S. 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