9911796707
TMI Blog1978 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of (1) Sawan Ram vs.Kalawanti and others (1) and (2) Smt. Sitabai and another vs. Ramchanra (2) The departmental authorities have not accepted the contention of the accountable person as, in their view, the provisions of s.12 of the Hindu Adoptions and Maintenance Act,1956 clearly provided that the property vested in persons before adoption could not be divested. The Appellate Controller felt that his view was supported by the Supreme Court s third decision in the case of Punithavalli Ammal vs. Minor Ramalingam and Another (3). 2. Taking us through the two Supreme Court decisions in the case of Sawan Ram vs. Kalawanti and Others (1) and Smt. Sitabai and Others vs. Ramchandra (2) at length, Shri Srinivasan, the learned counsel for the accountable person, has submitted that their Lordships of the Supreme Court have clearly held in their aforesaid two decisions that the doctrine of "relation back" was fully applicable in the case of adoption even after the passing of Hindu Succession Act and Hindu Adoption and Maintenance Act,1956.As a natural corollary, he urged that the adopted son must be held to have become a member of the deceased s family at the time of his death ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption. Referring to the facts in the second Supreme Court decision where the adoption was made before the death of the deceased, the departmental representative submits that the said case is distinguishable. According to him, the Supreme Court s decision in the case of Punithavalli Ammal vs. Minor Ramalingam and Another (1) squarely covers the issue. In other words, his submissions are that though the adoption might be taken to go back to the date of death and also to the deceased s father, the property vested in persons before the date of adoption could not be divested. For this purpose, he has referred to example(d)at page 1112 of the Mulla s Hindu Law-14th edition. Reference has also been made to Raghav Achari s Treatise on Hindu Law-5th Edition at page 173. Lastly, he has submitted that after the passing of the Hindu Adoptions Maintenance Act, 1956, adoption can also be by a widow to herself and also to herself and her husband. In the present case, it is stated that the deed of adoption shows that the adoption is only to the widow herself and not to her husband. In any view of the matter, according to the departmental representative, the value of the entire property left by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be to late husband of the widow. Having then regard to the provisions of s.14 of the Hindu Adoption Maintenance Act,1956 which empower not only a widow but also an unmarried woman to adopt, and the adoption can be by and to a Hindu, it appears that, in the present case, the adoption can be said to have been made by the widow to herself only. Since, however, the finding on this issue is not really material for the disposal of the appeal before us, we do not propose to finally express ourselves on it. 6. As regards the doctrine of "relation back" we do not think, there can be any dispute that after the two Supreme Court decisions relied upon by the learned counsel for the accountable person in (1) AIR 1967 (SC) 1761 and (2) AIR 1970 (SC) 343 that the doctrine of "relation back" continues to apply to adoptions inspite of the Hindu Adoptions Maintenance Act,1956.The pertinent question, however, is what is the effect of the doctrine of "relation back" on the property left by a deceased person, assuming the adoption is treated as the adoption not only to the widow but also to her husband, at the time of his death. In our opinion, if we consider the Supreme Court s decision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act,1956. Since we have not found those decisions to be really contrary to those provisions, we do not think, the comments deserve more respect than the Supreme Court decisions themselves. Example (d) given in Mulla s Hindu Law at page 1112 and the comments of Raghava Achari, of course, support the case of the department. We have also gone through the Supreme Court s decision in the case of C.E.D. vs. Alladi Kuppuswamy (4) to consider whether there was something in that decision in support of the accountable person s proposition. We, however, find that the deceased, Alladi Kuppuswamy who had limited interest in the coparcenery property of her husband and three sons, had died on 5th Jan.,1956,a few months before the passing of the Hindu Succession Act,1956.The question that arose for consideration was whether her interest was a coparcenery interest as contemplated by S.7(1) of the Estate Duty Act,1953. We fail to understand how this decision is of any help to the accountable person. 8. Before concluding, we would like to refer to the three Supreme Court decisions in the cases of: (1) Sawan Ram vs.Kalawanti Ors.(1) (2) Smt. Sitabai Anr. vs. Ramchandra (2) (3) Punitha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive father which has passed by survivorship to his father s brothers." It is significant that for reasons given in paras 7 and 8 of its order, the Supreme Court has not accepted the interpretation of the High Court so far as it pertained to the doctrine of "relation back" and so far as the question of adoption to the husband was concerned. Their Lordships have held that on adoption by a Hindu widows the adopted son will be in effect the adopted son of her husband also. For reasons given in para 9 of their order, their Lordships have, however, concurred with the Andhra Pradesh High Court, as it was felt that in view of the clause (c) of the proviso to s.12 of the Act the adopted son could not divest the persons of the property which had vested in them long before adoption. We, thus, fail to understand how this decision is in favour of the accountable person. 11.The facts in the case of Smt. Sitabai and another vs. Ramachandra (2) are that Dulichand and Bhagirath were two brothers. Bhagirath died sometime in 1930 leaving behind his widow, Smt. Sitabai. It was the admitted case of both the parties that after the death of Bhagirath, Sitabai started living with Dulichand as a result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act are not restricted or limited by any rule of Hindu law. That provision makes a clear departure from the Hindu law texts as interpreted by Courts, on adoption by a Hindu widow, the adopted son acquired all the rights of an aurasa son and those rights related back to the date of the death of the adoptive father. These texts or rules cannot be used for circumventing the plain intendment of the provision." This decision, on contrary, squarely goes against the accountable person. 13. Having regard to the above discussion, we hold that the deceased had full power of disposition over the property left by him, the value of which was includible in his estate under s.6 of the Estate Duty Act. There are, of course, some other grounds in this appeal by the accountable person. Both the sides, however, agree that it will be fair and in the interests of justice if the order of the Appellate Controller is set aside with a direction to consider those grounds afresh according to law on merits, after allowing the parties reasonable opportunity which, it was stated, was not available as the whole attention of the Appellate Controller was focussed on the main issue. 14. In the result, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
