R B S S MUNNALAL Vs. S S RAJKUMAR

JUDGEMENT

(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.

(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.