SHAH, J.: - (1.) THE Judgement of the court was delivered by
(2.) THIS appeal with special leave is against the decree of the Madhya Pradesh High court confirming the decree of the 1st Additional District Judge, Jabalpur in Civil Suit No. 12-A of 1952. The dispute between the parties arose in a suit for partition of joint family property. The parties are Digambar Jains of the Porwal Sect and are residents of Jabalpur which at the material time was in Madhya Pradesh. The following pedigree explains the relationship between the parties:- JUDGEMENT_1493_AIR(SC)_1962Image1.jpg Saheblal son of Munnalal filed Suit No. 12A of 1952 in the court of the 1st Additional Subordinate Judge, Jabalpur on 21/06/1952 for a decree of partition and separate possession of his l/12th share in the joint family property. He claimed that in the property his father's branch was entitled to have a half share and the remaining half was owned by Ram Chand and his branch. The Additional Dist. Judge ordered that Khilonabai -grandmother of Munnalal & Ramchand file wives of Munnalal and Ramchand and their sons and Bhuribai (widow of Padamchand) and Rajkumar who claimed to be a son of Padam Chand by adoption by Bhuribai On 26/07/1952, be impleaded as defendants to the suit. At the trial of the suit the right of Saheblal to a share in the property was not questioned: the dispute principally turned upon the claim made by Bhuribai and her adopted son Rajkumar to a share in the property. Padamchand had died before the enactment of the Hindu Women's Right to property Act 1987, and his widow could not claim by virtue of that Act a share in in the property of the family. But Bhuribai and Rajkumar pleaded that the parties were governed in the matter of adoption by tha customary law prevalent amongst the Jains of central India, Madhya Pradesh, Vindhya Pradesh North and Western India, and Rajkumar as a son adopted by Bhuribai to Padam Chand became a coparcener in the Joint family and entitled to a share in the property and accretions thereto. The validity of the adoption of Rajkumar was challenged on many grounds, one only of which is material in this appeal. It was submitted by the contesting defendants that Bhuribai had no authority express or implied from her husband Padam Cnand to adopt a son and that the adoption of Rajkumar as a son without such authority wad invalid. The Additional District Judge rejected this plea and ordered a preliminary decree for partition and declared that the share of the plaintiff was 1/24th. of Munnalal, his wife and 3 sons collectively was 5/24th of Ramchand and his sons 1/4th, of Khilonabai 1/4th and the remaining 1/4th share belonged to Rajkumar. Against the decree, Munnalal, Ramchand, Khilonabai, wife and sons of Munnalal 1496 and the wife and sons of Ramchand who were defendants 1 to 10 preferred an appeal to the High court of Madhya Pradesh. During the 'pendency of this appeal Khilonabai died on 3/07/1956 and Ramchand and Munnalal applied to be impleaded as her legal representatives in respect of the interest in the property awarded to Khilonabai by the preliminary decree. By order dated 12/12/1957, the District Judge held that the interest of Khilonabai devolved upon the applicants by virtue of Ss. 15 and 16 of the Hindu Succession Act, 1956 which was brought into operation on 14/06/1956 and that the sons of Munnalal, Ramchand and Padam Chand could not take a share in Khilonabai's interest.
(3.) BEFORE the High court two questions were canvassed: (1) as to the factum and validity of the adoption of Rajkumar, and (2} devolution of the share of Khilonabai declared by the preliminary decree on her death. The High court upheld the finding of the trial court that Rajkumar was in fact adopted by Bhuribai as a son to her husband on 26/07/1952 and that amongst the Jains residing in the North West Province, central India, Northern India and in Bombay a widow could adopt a son to her deceased husband without any express authority in that behalf. In so holding the High court relied upon the judgments of the Privy council in Premraj v. Mst. Chand Kanwar, 74 Ind App 254: (AIR 1948 PC 60) and Mangibai Gulabehand v. Suganchand Bhikamchand, AIR 1948 PC 177. But the High court declined to accept the view of he trial court that the right of Khilonabai declared by the preliminary decree devolved upon Munnalal and Ramchand alone. In their view, Khilonabai's interest under the decree being inchoate was not "possessed" by her within the meaning of S. 14 of the Hindu Succession Act, 1956, and on her death it merged into the estate. The High court observed: "The result is that the interest of Smt. Khilonabai remained inchoate and fluctuating so that after her death, the interest declared by the preliminary decree is available for partition as joint family property and consequently S. 15 and 16 of the Hindu Succession Act are inapplicable to the interest. As the property never became her absolute property by virtue of section 14 of the Act, the same remained point family property." Accordingly the decree of the trial court was modified and 1/3rd share in the joint family property was awarded to Rajkumar, 1/3rd to the branch of Munnalal and the remaining 1/3rd to the branch of Ramchand and adjustments were made on that footing in the shares of the plaintiff and other members of the family. In this appeal by defendants Nos. 1 {Munnalal), 2 (Ramchand) and 410 10, three contentions were raised: (1) in the absence of express authority from her husband, Bhuribai could not adopt a son, (2) that the interest of Khilonabai under the preliminary decree became her absolute property by virtue of S. 14 of the Hindu. Succession Act, 1956 and on her death It devolved upon her grandsons Munnalal and Ramcnand defendants 1 and 2 and (3) the trial court was in error in delegating to a Commissioner judicial functions, such as, ascertainment of property to be divided and effecting partition. The third question is easily answered. The trial court appointed a commissioner to propose a partition of joint family property, and for that purpose the; court authorised him to ascertain the property the debts which the family owed and also the individual liability of the parties for the debts. For deciding those questions the Commissioner was empowered to record statements of the parties, frame issues and to record evidence as might be necessary. The commissioner was also directed to submit his proposals relating to the right of Bhuribai to be maintained out of the joint family property. This order, it appears, was passed with the consent of all the parties. It is true that the decree drawn up by the trial court is not strictly in accordance with the directions given in the judgment. But it is manifest that the trial Judge only directed the Commissioner to submit his proposals for partition of the property, and for that purpose authorised him to ascertain the property which was available for partition and to ascertain the liability of the joint family. By so authorising the Commissioner, the trial court did not abdicate its functions to the commissioner: the commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the court would adjudicate upon such proposals in the light of the decree, and the contentions of the parties. The proposals of the commissioner cannot from their very nature be binding upon the parties nor the reasons in support thereof. The order it may be remembered was made with the consent of the parties no objection to the order was, it appears, pressed before the High court. We do not think that any case is made out for modifying that part of the order. 1497 ;