C.Y. Somayajulu, J.
1. Defendants in a suit for partition are the appellants. For the sake of convenience the parties to this appeal would hereinafter be referred to as they are arrayed in the trial Court.
2. Minor plaintiff, represented by his mother as guardian, filed the suit for partition of the properties specified in the plaint A to D schedules (the suit properties) into two equal shares, and for allotment of one such share to him inter alia contending that his father Narsing Rao (the deceased), the son of the defendants 1 and 2, died on 12-12-1954 leaving behind his wife Sushila Bai, who took him in adoption as per sastric rites on 02-03-1975 in the presence of the villagers. A deed of adoption evidencing his adoption was also executed by her on 13-02-1980. As the coparcenary of the deceased and first defendant, of which the first defendant was the karta, was possessing the suit properties, the deceased was having half share therein. After the death of the deceased he became entitled to that share of the deceased as the adopted son of the deceased, first defendant, who was affectionate towards him and who had executed a registered Will bequeathing all his properties to him and the second defendant, had, subsequently, without any legal necessity, sold away the properties described in the plaint 'B' schedule and utilized the sale proceeds for himself and so those sale transactions are not binding on him. For reasons not known to him first defendant developed ill-will towards him and his adoptive mother Sushila Bai and threatened that he would make them paupers and did not co-operate for partition of the suit properties though he (first defendant) had, in the declaration filed by him under the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (the Act), admitted that his daughter-in-law Sushila Bai has half share in the properties shown by him therein. Hence the suit.
3. First defendant, who died during the pendency of the suit, filed his written statement inter alia admitting the relationship between him and the deceased and the adoption of the plaintiff by Sushila Bai and contending that inasmuch as the deceased died in 1954, neither Sushila Bai, as his widow, nor the plaintiff, as the adopted son of Sushila Bai, could inherit the share of his son (the deceased) and denied the existence of the gold articles mentioned in the plaint 'D' schedule, and alleged that Sushila Bai, who was presented with 41 tolas of gold at the time of her marriage with the deceased, is in possession of that gold, and contended that though he does not accept the plaintiff as the adopted son of the deceased, he with a view to save the property belonging to his family, by brining it out from the purview of the Act, mentioned in the declaration filed by him under the Act that his daughter-in-law Sushila Bai has half share in the family properties, but that contention of his was not accepted by the Tribunal constituted under the Act. Though he, at the instance of Sushila Bai and K.Kishen Rao-the natural father of the plaintiff had to execute a Will on 27-02-1980, with a hope that Sushila Bai would look after him and his wife during their old age, had by cancelling that Will executed another Will dated 25-01-1982, and got it registered, as Sushila Bai and Kishen Rao started pestering him. Since all the lands mentioned in plaint 'A' and 'B' schedules were sold long prior to 02-03-1975, the date of the adoption of the plaintiff, plaintiff, in any event, cannot claim a share in those properties which were sold away by him. As the properties mentioned in the plaint 'B' schedule are his self-acquired properties and not the joint family properties, plaintiff, in any event, has no share therein. As he adopted a boy named Parthasarathi, Parthasarathi also is entitled to a share in the properties belong to the joint family. Since his adopted son Parthasarathi, who is a necessary party, is not made a party to the suit, the suit is not maintainable. Sushila Bai who was entitled to maintenance was put in possession of Acs. 6-07 gts in Sy. Nos. 136, 137, 15 and 214; and Acs.3-21gts in Sy. No. 356 of Yakeenpur belonging to the joint family. Since those lands are not shown in any of the schedules appended to the plaint, the suit, in any event filed for partition of only some of the properties belonging to the joint family is not maintainable.
4. Second defendant, after she was brought on record as the legal representative of the first defendant, filed her written statement adopting the written statement of the first defendant.
5. Basing on the above pleadings, the trial Court framed six issues and five additional issues on 24-01-1986 and one additional issue on 08-07-1987, for trial. In support of the case of the plaintiff, his adoptive mother Sushila Bai examined herself as P.W. 1 and four other witnesses as P.Ws. 2 to 5 and marked Exs.A-1 to A-9. In support of her case, the second defendant examined herself as D.W. 1 and four other witnesses as D.Ws.2 to 5 and marked Exs.B-1 to B-34. Exs.X-1 to X-3 were marked through witnesses. The trial Court, on issue No. 1 which relates to the question whether the plaintiff is the adopted son of the deceased and is entitled to half share, held in favour of the plaintiff; on issue No. 3 and additional issues Nos. 2 to 4 framed on 24-01-1986 which relate to the question whether plaint 'B' schedule properties are liable to be allotted to the share of defendant in the event of partition and whether the alienees of 'B' schedule properties are necessary and proper parties to the suit and whether 'B' schedule properties are sold without any legal or family necessity and whether permission of Sushila Bai was required for sale of the properties, held that 'B' schedule properties were sold for legal necessity and not for any immoral purpose and hence are not liable for partition and so purchasers of the plaint 'B' schedule properties are not necessary parties to the suit; and on additional issue No. 1 framed on 24-01-1986 and issue No. 2, which relate to the question whether Nambi Parthasarathi is a necessary party to the suit and whether the plaint 'A' and 'C schedule properties are the joint family properties and are liable for partition, held that as the adoption of Parthasarathi is proved he is entitled to a share in the properties and that plaint 'A' schedule properties are to be partitioned between the plaintiff and Sushila Bai, and that plaintiff and Sushila Bai are entitled to half share and Parthasarathi and the second defendant are entitled to the remaining half share therein and since there is no evidence on record, except the averment in the written statement, that houses at Yakeenpur village belong to Vithalraju Bai and since no record is produced to show that houses mentioned in the plaint 'C schedule belongs to Vithalraju Bai, they have to be treated as joint family properties and so the plaintiff is entitled a share therein and thus the plaintiff has a share in the lands shown in plaint 'A' schedule and Ac.06-07 guntas in Sy. Nos. 15, 136, 137 and 214 and Ac. 03-21 guntas in Sy. No. 356 at Yakeenpur village, excluding two acres which was sold away by Sushila Bai, and that the plaintiff is entitled to a half share in the plaint 'C schedule property, on additional issue No. 5 which relates to the question whether the suit is liable to be dismissed for non joinder of necessary and proper parties, held that inasmuch as Parthasarathi is not a necessary party to the suit it is not liable to be dismissed for not impleading him as a party. On issue No. 5, which relates to the sufficiency of Court fee held in favour of the plaintiff; on the additional issue framed on 08-7-1987 which relates to the question whether second defendant is entitled to equal share with her son, held that after the death of first defendant (Narsing Rao) his wife second defendant became his heir and as Narsing Rao predeceased Narayan Rao, plaintiff is entitled to the half share in the remaining share and the remaining share will go to first defendant and on his death his share devolved on the second defendant and her adopted son in equal shares; and on issue No. 6 relating to the relief it held that the plaintiff is entitled to half share in the plaint 'A' schedule properties and Ac. 09-28 guntas in Sy. Nos. 15, 136, 137, 214 and 356 of Yakeenpur excluding two acres sold by P.W.I (Sushila Bai) and that the plaint B to D schedule properties are not available for partition and passed a preliminary decree accordingly.
6. The main contention of Sri N.V. Suryanarayana Murthy, learned senior Advocate appearing for the defendants, is that since the deceased died on 12-12-1954 and since the alleged adoption of the plaintiff by Susila Bai, the widow of the deceased, was on 02.03.1975, the doctrine of relation back does not apply more so because it is not even the case of the plaintiff, nor is there evidence on record, to show that the deceased gave authority to Sushila Bai -his wife to adopt a child for him, and since Section 8 of the Hindu Adoptions and Maintenance Act, 1956 (HAAM Act) is silent as to whether adoption by a widow for her husband is valid without the authority of her husband and as the HAAM Act has no overriding effect upon the Shastric Law, which mandated that only in cases where the husband gives an authority to his wife to adopt a son for him, can his widow make an adoption for him, and as the plaintiff, admittedly, was not born by 12.12.1954 the date of death of the deceased, the doctrine of relation back, in any event, does not apply to the adoption of the plaintiff and placed strong reliance on Rajendra Kumar v. Kalyan (dead) by L.Rs. : AIR2000SC3335 and Namdev Vyankat Ghadge and Anr. v. Chandrakant Ganpat Ghadge and Ors. AIR 20C3 SC 1735 : 2003 (4) ALT 4.2 (DN SC) in support of his said contention, and contended that inasmuch as Sushila Bai, who was entitled to sue the first defendant for partition of the share of the deceased in the joint family properties as per Hindu Women's Right to Property Act, 1937 (1937 Act), failed to do so, and since 1937 Act was repealed by the Hindu Succession Act, 1956 (1956 Act), question relating to the rights acquired by Sushila Bai under 1937 Act has no relevance to decide this case. It is his contention that in any event the trial Court, having held that the lands at Yakeenpur village were given to the first defendant by his sister Smt. Vithal Raju Bai, was in error in holding that those properties also are the joint family properties, when it is not even the case of the plaintiff that the first defendant threw those properties in the (sic. into) common hotchpotch or treated them also as the joint family properties. His next contention is that the trial Court having held that adoption of Parthasaradhi by defendants 1 and 2 is true, was in error in decreeing the suit by holding that he is not a necessary party, and by placing strong reliance on Kanakarathanammal v. V.S. Loganatha Mudaliar and Anr. : [1964]6SCR1 contended that the suit is liable to be dismissed for non impleading of the necessary party. His next contention is that inasmuch as the property given possession of to Sushila Bai towards maintenance, is not shown in any of the schedules appended to the plaint, the trial Court ought to have held that the suit filed for partial partition is bad for not including all the properties liable for partition and dismissed the same but was in error in passing a preliminary decree for partition of those properties which are not included in any of the plaint schedules.
7. The contention of Sri C. Ramesh Sagar, learned Counsel for the plaintiff, is that since the evidence on record clearly establishes the adoption of the plaintiff by Sushila Bai, he, on his adoption, became the adopted son of not only Sushila Bai but the deceased also, because he was adopted by Sushila Bai as per the oral authority given by the deceased to her, and so he became a coparcener in the joint family consisting of the first defendant, second defendant Sushila Bai and himself, plaintiff, as a coparcener, does have the right to claim partition, and contended that even assuming that the deceased did not give an authority to adopt to Sushila Bai, inasmuch as the deceased died as a member of Hindu undivided family, and as consent of a coparcener/Sapinda is sufficient to authorise the adoption, as held in V.T.S. Chandrasekhar Mudaliar v. Kulandaivelu Mudaliar and Ors. AIR 1963 SC 185, and inasmuch as Ex.A-8 shows that the first defendant made an admission before the Land Reforms Tribunal that plaintiff is the adopted son of the deceased and Sushila Bai, (his daughter-in-law) and is living with him and that Sushila Bai and Plaintiff are having half share in the properties, his consent for the adoption can be implied and so denial of adoption of the plaintiff by defendants 1 and 2 for the first time in the suit is not of any consequence. It is his contention that inasmuch as Smt. Vithal Raju Bai, sister of first defendant, had no issues she was being maintained by the first defendant and as the properties belonging to Vithal Raju Bai also were being treated as the joint family properties by the first defendant, and had shown those lands also in the declaration filed by him under the Act, those properties also became the joint family properties and contended that merely because Parthasaradhi is not made a party to the suit, the suit is not liable to be dismissed in view of the ratio in Surajmal v. Motiram and Ors. : 2002(4)ALD720 . He, relying on V. Tulasamma and Ors. v. Sesha Reddy : [1977]3SCR261 , contended that since the deceased died on 12.12.1954, by virtue of the Hyderabad Hindu Women's Rights to Property (Extension to Agricultural Lands) Act, 1954, (1954 Act) Sushila Bai inherited the half share of the deceased in his ancestral property, and thereafter, by virtue of Section 14 of the 1956 Act that share of hers got enlarged into an absolute right, and as she has no objection to partition the property, the trial Court rightly passed a decree in favour of the plaintiff. Relying on Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe and Ors. : [1988]2SCR1077 and Smt. Sitabai and Anr. v. Ramachandra : [1970]2SCR1 , he contended that a person adopted by a widow, after coming into force of the HAAM Act, can claim a share in the joint family property already devolved on the sole surviving coparcener. Relying on L. Debi Prasad v. Tribeni Devi : [1971]1SCR101 he contended that if a person adopted is treated as the adopted son of the adoptee, his adoption can be held to have been proved. His next contention is that since this Court can, in exercise of its inherent power, add Pardhasaradhi as a party to the suit, as held in C. Subbarayudu v. E. Brahmanandan and Ors. : AIR1970AP211 the suit may not be dismissed for not impleading Pardhasaradhi as a party to the suit and the said Pardhasaradhi may be ordered to be brought on record as a party. Relying on Panna Lal v. State of Bombay : [1964]1SCR980 he contended that in view of Rule 33 of Order 41 CPC respondents can, even without filing cross-objections, canvass the incorrectness of the finding recorded against them by the trial Court, plaintiff not filing cross-objections in respect of the adverse findings recorded against him by the trial Court is not of any consequence.
8. In reply, the contention of Sri N.V. Suryanarayana Murthy is that in view of the ratio in Kanakarathanammal case (3 supra), the decision of this Court in Surajmal case (5 supra) relied on by the learned Counsel for the plaintiff, is per incuriam.
9. The points for consideration are
(1) Whether the suit is bad for nonjoinder of necessary party i.e. Parthasarathi, who was adopted by the first defendant?
(2) Whether plaintiff is the adopted son of the deceased? If so to what share is he entitled to and in what properties?
(3) To what relief?
Point No. 1
10. C. Subbarayudu case (10 supra) has no application to the facts of this case because the facts in that case are entirely different from the facts in this case. In that case the point for consideration before the Division Bench was whether a settlee pendente lite of one of the items of the property covered by the suit can be added as a party to an appeal brought by the plaintiff in the suit. The plaintiff in that case filed the suit for partition of the joint family properties against his brothers, mother and alienees of one of the items of the suit property in that suit. The brother of the plaintiff died shortly after the institution of the suit leaving behind his mother as his only heir. The mother of the plaintiff contested the suit on the ground that all items 1 to 6 of the plaint schedule property are her separate properties and so plaintiff has no share therein. Her claim in respect of items 1 and 6, which were settled by her on her daughter's son, was accepted. The settlee was not brought on record as a party to the suit. The trial Court dismissed the suit on merits. Plaintiff filed an appeal questioning the decision of the trial Court in 1961. In 1962 the settlee filed a petition to come on record as a party to the appeal. On the next day plaintiff and her mother filed a compromise memo whereunder her mother gave up her claim to item No. 6 as her separate property and both of them opposed the settlee coming on record as a party to the appeal, on the ground that the settlement deed relied on by her is vitiated by fraud and undue influence. The appellate court allowed the petition of the settlee to come on record. Questioning the said order plaintiff filed a revision. That revision was referred to a division bench in view of the conflict between two decisions. Holding that inquiry into the truth and validity of the settlement deed cannot be deemed to be foreign to the scope of the appeal and that filing of a compromise memo was no bar to entertain the application or inquiry into its merits, the division bench dismissed the revision. The facts in this case are entirely different from the facts in that case. Parthasaradhi did not file an application to come on record as a party to the appeal, and plaintiff also did not make such an application to bring Parthasaradhi as a party to the appeal. So the said decision is of no help to the plaintiff.
11. Since Parthasaradhi's adoption by defendants 1 and 2 is upheld by the trial Court, and as no cross-objections are preferred questioning that finding, and as no circumstances warranting interference with the said finding of the trial Court are brought out during the course of arguments in this appeal, even assuming that the plaintiff is not obliged to file cross-objections, as he was granted substantial relief in his favour by the trial Court, in view of the ratio in Panna Lal case (11 supra) relied on by the learned Counsel for the plaintiff, and as it is well known that in a suit for partition all the persons who have a share in the properties to be partitioned are necessary parties, non-impleading of Parthasaradhi as a party to the suit entails dismissal of the suit. Significantly, the plaintiff, even after the defendants took a specific ground in the grounds of appeal that the suit filed without impleading Parthasaradhi as a party is liable to be dismissed for non impleading of that necessary party, did not take steps to file a petition to bring on record Parthasaradhi as party to the suit in this appeal at least. The power of the Court to direct a necessary or proper party being brought on record is undisputable. But I find no circumstance warranting exercise of such suo motu power in this case to help the plaintiff who with his eyes wide open did not take steps in that regard, in spite of his having an opportunity to file a petition to bring Parthasarathi on record as a party.
12. Prior to the 1977 amendment to Rule 9 of Order 1 CPC mandating dismissal of a suit for non-impleading a necessary party, a suit could not be dismissed for non-impleading of a necessary party. Even then a Constitution Bench of the apex Court in Kanakarathanammal case (3 supra) held as follows in para 15.
(15) It is unfortunate that the appellant's claim has to be rejected on the ground that she failed to implead her two brothers to the suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolved by succession under Section 12 of the Act. That, in fact, is the conclusion, which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record. It is true that under Order 1, Rule 9 of the Code of Civil Procedure no suit shall be defeated by reason of the misjoinder or non-joinder of the parties but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under Order 1 Rule 10, Sub-rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea of limitation. Once it is held that the appellant's two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra v. Radhashyam Mahish the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co-mortgagors were necessary parties and in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of Order 1, Rule 9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that 'they are unable to hold that, the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India'.
Inasmuch as a preliminary decree for partition can be passed only when all the sharers of the property to be partitioned are before the Court, and inasmuch as a decree for partition obtained behind the back of a sharer will not bind him, any finding recorded by the trial Court relating to the share of Parthasarathi would not bind him. To what share Parthasarathi is entitled to in the suit properties cannot be decided behind his back, because he also has a right to question the adoption of the plaintiff and his entitlement to a share in the suit properties.
13. It is no doubt true that in Surajmal case (5 supra) a learned single Judge of this Court held that a suit for partition is maintainable even if all the sharers are not made parties, as those parties can be brought on record during final decree proceedings, and so non-joinder of all the sharers before passing of the preliminary decree is not fatal. But as the apex Court in Venkata Reddy v. Pethi Reddy : AIR1963SC992 held that a preliminary decree in a partition suit is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive and final, the shares determined in the preliminary decree cannot be altered or modified so as to reduce them during the final decree proceedings. No doubt the shares allotted in a preliminary decree can be altered by granting a higher share to the parties consequent on the death of some of the sharers who are parties to the suit, to avoid multiplicity of proceedings. Obviously because the decision of the apex Court in Kanakarathanammal case (3 supra) and the proviso to Rule 9 of Order 1 CPC, which leaves no option to the Court except to dismiss the suit for non-impleading of a necessary party, were not brought to the notice of the learned Judge, the learned Judge in the above case must have held that non impleading of a necessary party in a suit for partition is not fatal to the suit. In view of Kanakarathanammal case (3 supra) and Rule 9 of Order 1 CPC, it cannot but be said that Surajmal case (5 supra), relied on by the learned Counsel for the plaintiff, does not reflect the correct position of law, and so the suit is liable to be dismissed for not making Parthasarathi, the adopted son of defendants 1 and 2, a party to the suit. The point is answered accordingly.
14. In view of my finding on point No. 1, the appeal deserves to be allowed and the suit is liable to be dismissed even without answering the other points framed, but as the learned Counsel made their submissions on those points also, I wish to give my findings on those points also.
Point No. 2:
15. In Rajendra Kumar case (1 supra) the apex Court held that in view of Section 8 of 1956 Act a widow, no doubt, has an authority to adopt a child for herself, but inasmuch 1956 Act is silent about the consent by the husband to adopt a child for him, the Shastric Law would come into operation and as Shastric Law provides for an express authority being given by her husband to adopt a child for him, and as there is no evidence relating to the husband authorizing his widow to adopt a child for him, the child adopted by his widow would not become the adopted child of her husband. Though in V.T.S. Chandrasekhar Mudaliar case (4 supra), where it is held that a sapinda has the power to give consent to a proposed adoption by a widow, as the act of giving consent is not a religious act, but is the act of a guardian or protector of a widow, who is authorized to advise the widow who is presumed to be incompetent to form an independent opinion, relates to the law applicable to Gravida community, and though the parties to this suit belong to Telangana area, since first defendant admittedly filed a declaration under the provisions of the Act and admitted that the plaintiff, is the adopted son of Sushila Bai, and has half share in the joint family properties, that admission by the first defendant relating to the adoption of the plaintiff by Susila Bai is binding on him. Therefore, he is estopped from denying the adoption of the plaintiff, or about the entitlement of the plaintiff to claim a share in the joint family property. So it cannot but be said that Sushila Bai adopted the plaintiff with the consent of the first defendant, and so he would be the adopted son of the deceased also.
16. In Smt. Sitabai case (8 supra) it is held that a property belonging to a Hindu joint family does not cease to be so because of the temporary reduction of a coparcenery unit to a single individual, and its character would remain the same even after the death of all but one coparcener. In view thereof afterthe death of the deceased, first defendant became the sole surviving male member in the joint family and the property belonging to his joint family remained to be the property of the joint family only but did not become his separate property. After the plaintiff was adopted by the widow of the deceased he became the second male member in the said joint family.
17. It is no doubt true that by virtue of 1954 Act, which came into force on 22.10.1954, i.e. prior to the death of the deceased on 12.12.1954, the provisions of 1937 Act are applicable to agricultural lands belonging to the joint family also. But, I am not able to accept the contention of the learned Counsel for the plaintiff that by virtue of Section 14 of the 1956 Act, Sushila Bai's rights in the joint family property got crystalized into absolute rights, because Sushila Bai did not seek partition of the joint family properties and was not even in possession of any of the joint family properties.
18. Unlike in this case, in v. Tulasamma case (6 supra) widow of a coparcener was put in possession of some joint family property towards her maintenance, under a compromise in a suit tor maintenance filed by her, and continued to be in possession of those properties by the time of coming into force of 1956 Act and leased them out to a tenant. The other coparcener filed the suit for declaration that the alienations made by the widow do not bind him and would remain valid only during her lifetime. The widow contended that by virtue of Section 14 of the 1956 Act she became the absolute owner of the joint family lands which were put in her possession in lieu of her maintenance. The trial Court decreed the suit. The first appellate Court reversed the decree. The High Court in the Second Appeal restored the decree of the trial Court. On further appeal by the widow, the apex Court set aside the judgment of the High Court and dismissed the suit holding that the widow became the absolute owner of the property which was put in her possession, in view of Section 14(1) of the 1956 Act. In this case, inasmuch as Sushila Bai was not put in possession of the half share of the deceased, she cannot, by virtue of Section 14(1) of the 1956 Act, claim to have become entitled to the half share of her husband i.e. the deceased absolutely. At best, she may claim that the lands at Yakeenpura, put in her possession in lieu of her maintenance, became her absolute properties by virtue of Section 14(1) of the 1956 Act. But no such finding need be given in this case because this is not a suit filed by Sushila Bai claiming ownership over those properties.
19. The facts in Dharma Shamrao Agalawe case (7 supra), which I would refer to in detail shortly, are very similar to the facts of this case, as in that case also a widow of a coparcener who died issueless in 1928, adopted a boy on 09.08.1968 i.e. long subsequent to the coming into force of 1956 Act. But the apex Court did not hold that the widow of the deceased coparcener became entitled to half share in the joint family property by virtue of Section 14 of the 1956 Act, but held that the adoptee of the widow becomes entitled to the share of the deceased coparcener.
20. In Dharma Shamrao Agalawe case (7 supra) a father who had two sons died prior to 1928. One of his sons died in 1928 leaving behind his widow. So the other son became the sole surviving coparcener, subject to the right of maintenance of his sister-in-law. The sole surviving son sold some of the items of the joint family properties. After the coming into force of 1956 Act the widow of deceased brother adopted a boy and filed a suit for partition of the half share belonging to her husband in the joint family properties along with her adopted son, against her brother-in-law and the alienees. The trial Court dismissed the suit. On appeal, the District Judge allowed the appeal and passed a preliminary decree for partition of the half share of the plaintiffs only in respect of the properties not sold by the surviving brother. Second appeal preferred by the surviving brother to the High Court was dismissed. So, he approached the apex Court, where it is held that the sole surviving coparcener, as long as he remains a sole surviving coparcener, may sell or mortgage or gift the coparcenery property, and any new coparcener inducted into the family, either by way of adoption or birth, cannot question those alienations because the joint family property in the hands of the sole surviving coparcener, after adoption by the widow becomes the joint family properties of himself and the adoptee, and so each of them will have half share therein.
21. In Namdev Vyankat Ghadge case (2 supra), relied on by the learned senior advocate for the defendants, two brothers Vyankat and Anand Rao, were members of a joint family. Anand Rao died on 06.07.1936 as a member of the joint family leaving behind his widow. So, Vyankat became the sole surviving coparcener, subject to the right of maintenance of the widow of Anand Rao. Vyankat had two sons and three daughters. A suit for partition of the joint family properties was filed alleging that the widow of Anand Rao (second defendant), who was being granted maintenance till the death of Vyankat on 08.02.1978, had, in collusion with the first defendant, brought into existence a deed of adoption of Dathatreya (grand son of the first defendant through his daughter) and got mutated her name in the revenue records, though she has no right in the joint family properties and so Dathatreya, the allegedly adopted son of the second defendant, cannot acquire any share or rights in the joint family property. Defendants 1 and 2 in that suit filed a common written statement inter alia contending that inasmuch as the second defendant took Dathatreya in adoption on 10.06.1968 plaintiffs can have only 7/48th share in the suit property. Fourth defendant also filed a written statement contesting the suit. Defendants 3 to 5 daughters of Vyankat remained ex parte. After the death of the second defendant, Dathatreya, her adopted son, was allowed to come on record as her legal representative. The trial Court held that the adoption of Dathatreya by the second defendant is valid and that plaintiffs and first defendant will have 7/48th share each and that defendants 3 to 5 have 1/48th share. Appeals preferred by the plaintiffs to the District Court and the High Court were dismissed. On further appeal to it the apex Court allowed the appeal preferred by the plaintiff and held that the share of the plaintiffs would not get reduced due to the adoption of Dathatreya by the second defendant as that adoption took place after the death of Vyankat on 08.02.1978, and as the properties of the joint family in the hands of Vyankat devolved on his heirs i.e. his sons and daughters as per Section 6 of the 1956 Act, subject to the right of maintenance of the second defendant, Dathatreya, who was adopted by the second defendant about four months after the death of Vyankat, cannot get any right in the joint family properties which had already vested in the heirs of Vyankat. While referring to Dharma Shamrao Agalawe case (7 supra), the Court held as follows in paras13, 14 and 15.
13. From the facts in Dharma's case it is clearthat adoption of Pandurang took place during the lifetime of Dharma and as such Pandurang became member of coparcenary to claim the share.
14. In the present case with which we are concerned now, it is not disputed that adoption of Dattatraya took place after the death of Vyankat, the sole surviving coparcener. In our view this makes all the difference for the reasons to be stated hereinafter.
15. On the date of death of Vyankat the properties of the joint family in his hands devolved on his heirs, i.e. his sons and daughters as per Section 6 of the Hindu Succession Act, 1956, subject to rights of maintenance of defendant No. 2 Krishnabai. Opening of succession and devolving of properties operated immediately on the death of Vyankat and the joint family properties stood vested in the heirs of Vyankat. Defendant No. 6 was adopted by defendant No. 2 about four months after the death of Vyankat by which time the properties had already been vested in his heirs as stated above.
(Underlining mine)
So, the reason for the apex Court holding that Dathatreya did not become entitled to any property in the joint family was not due to the fact that he did not become the son of Anand Rao, but due to the fact that the property of the joint family already devolving on the heirs of the sole surviving coparcener by the date of adoption. It is well known that a right in the property of a deceased person acquired by anotherdue to succession, cannot be taken away due to a subsequent event of adoption, because a vested right cannot be divested by a subsequent adoption and as succession can never be put in abeyance.
22. In this case, by the time of adoption of the plaintiff by Sushila Bai, the sole surviving coparcener i.e. the first defendant, who is the father of the deceased, was very much alive and as the 1956 Act was not enacted by the date of death of the deceased in 1954, the share of the deceased did not devolve on Sushila Bai with absolute right. She, as per Section 3(2) of the 1937 Act became entitled to the same rights as her husband (the deceased) was having in the joint family property subject to the limitations imposed in Sub-section (3) thereof i.e the limited right of hindu woman estate which enabled her to seek a partition of the share of her husband. Admittedly Sushila Bai did not claim partition but only sought maintenance, whereupon first defendant gave some lands at Yakeenpura, shown in the plaint A schedule, given to him by his sister to her for her maintenance. So the joint family property remained to be the joint family property even after the death of the deceased and even after the adoption of the plaintiff by Sushila Bai also. So as held in Dharma Shamrao Agalawe case (7 supra), the ratio which applies on all fours to the facts of this case, plaintiff, on his adoption by Sushila Bai, became the coparcener of the first defendant and was having half share. But subsequent to the adoption of Parthasarathi by defendants 1 and 2 that share of his got reduced to 1/3 because in Vasant v. Dattu : AIR1987SC398 the apex held that introduction of a member into a joint family by birth or adoption has the effect of decreasing the share of the rest of the members and does not involve divesting persons of any estate vested in them in view of the proviso (c) to Section 12 of the 1956 Act and that the joint family holds the estate with more members than before, after the first defendant adopted Pardhasarathi the number of coparceners in the joint family of the defendants 1 and 2 and Sushila Bai increased to three.
23. It is well known that till partition no coparcener can say what is his actual share in the joint family property, because the shares can be increased or decreased due to deaths and births in the family. So, the plaintiff in fact would only be entitled to 1/3rd share in the joint family properties but not 1/2 share as claimed by him. So, the trial Court was in error in holding that the plaintiff is entitled to 1/2 share in the joint family properties.
24. Coming to the properties belonging to the joint family, the trial Court held that all sales effected by the first defendant after the death of the deceased are valid because they were made for legal necessity. In view of the ratio in Dharma Shamrao Agalawe case (7 supra) even if the sales made by the sole surviving coparcener are not for legal necessity, as the sole surviving coparcener he has the absolute right to dispose the joint family properties in the manner he likes, those sales made by the first defendant, in any event, cannot be questioned by the plaintiff, who was adopted long subsequent to those sales.
25. The assumption on the part of the trial Court that inasmuch as the first defendant gave the lands at Yakeenpura to Sushila Bai towards her maintenance, those lands, given to by the sister of the first defendant, acquired the character of the joint family properties, cannot be accepted because the properties to be given to a widow of a coparcener for her maintenance by the other coparcener(s) need not necessarily be the properties belonging to the joint family. His or their separate property can also be given to her for that purpose.
26. Question of the first defendant throwing his separate and self acquired properties into common hotch potch, after the death of the deceased, does not arise because the coparcenery consisted of only one male member i.e the first defendant, till Sushila Bai the widow of the deceased adopted the plaintiff.
27. Merely because the first defendant had in the declaration filed by him under the provisions of the Act shown the lands at Yakeenpura also and stated that the plaintiff has half share in the said properties, it cannot be taken that he threw those properties into the common hotch potch after adoption of the plaintiff by Sushila Bai, because first defendant explained the reasons for his stating so in the declaration filed by him under the Act, i.e. he made such a statement with an intention to save the property by not surrendering the land to the Government, which could be very much true, because judicial notice can be taken of the fact that several of the declarants in the declarations filed by them under the provisions of the Act had made several incorrect statements to save their properties, and the Tribunals constituted under the provisions of the Act had in several cases, after enquiry, disbelieved those statements. Be that as it may, since the finding on the question of the first defendant throwing the lands at Yakeenpura in the common hotch potch remains academic, in view of my finding that the suit is liable to be dismissed for not impleading Pardhasarathi, a necessary party, I do not wish to give any finding on that question.
28. The trial Court committed another mistake by passing a preliminary decree for partition of the properties not included by the plaintiff in the plaint schedule, because it having held that all the properties at Yakeenpura given to Sushila Bai for her maintenance including the two acres sold by her are joint family properties, had clubbed those properties with the suit properties and passed a preliminary decree for partition of the half share of the plaintiff in those properties also. Question of the court adding properties suo motu and directing partition of those properties when the parties did not seek relief in respect of those properties, and without making the party in possession of those properties a party to the suit, is highly improper and irregular because the party in possession of those properties, has a right to be heard before any order adverse to him or her is passed. If the trial Court felt that the lands at Yakeenpura given to Sushila Bai also are liable for partition, it should have, by invoking its suo moto power vested in it under Rule 10 of Order I CPC, directed adding of Sushila Bai a party to the suit and given an opportunity of hearing to her, to find out her case and should have granted an opportunity to the defendants to file their written statements. If the Court felt that the lands at Yakeenpura, given to Sushila Bai by the first defendant also are joint family properties, it should have, as rightly contended by the learned senior advocate for defendants, dismissed the suit on the ground that all the properties to be partitioned are not added in the plaint schedule because the general rule is that the suit for partition should embrace the whole of the joint family properties and as a suit for partial partition is not sustainable. The point is answered accordingly.
29. In view of my finding on point No. 1, the appeal is allowed and the decree passed by the trial Court is set aside and O.S. No. 30 of 1992 on the file of the Court of the Subordinate Judge, Nizamabad, is dismissed with costs in the trial Court. Parties shall bear their own costs in this appeal.