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2017 DIGILAW 2406 (RAJ)

Mukat Lal v. Board Of Revenue For Rajasthan

2017-11-02

K.S.JHAVERI, VIJAY KUMAR VYAS

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JUDGMENT 1. By way of this appeal, the present appellant originally defendant of suit filed by present respondent has challenged the judgment and order of learned Single Judge who has reversed the findings given by the Revenue Appellate Authority as well as Board of Revenue confirmed the order passed by the lower Court by which the court decreed the suit of partition in favour of present respondent. 2. The facts giving rise to the present appeal are that the property in dispute which is an agricultural land belong to a common ancestors. As per the case of the parties the following is genealogical table:- Kishan Lal Mangi Lal Madho Lal Kanwar Lal Nand Kanwari Bai (Widow) Mukat Lal Kailash (Adopted Son) (Defendant) (Plaintiff) [Devolution by Will executed by Kanwar Lan not by survivorship] 2.1 Mangi Lal son of Kishan Lal died in the year 1912 and his son Kanwar Lal remained unmarried. Kanwar Lal executed a Will in favour of Mukat Lal, the defendant on 09.02.1949. Kanwar Lal died in the year 1954. The property devolved upon Mukat Lal, the defendant under the Will of Kanwar Lal. 2.2 Madho Lal son of Kishan Lal died somewhere in the year 1929-1930 leaving behind his widow Smt.Nand Kanwari Bai. Smt.Nand Kanwari Bai died in the year 1972 leaving behind the plaintiff as adopted son of Madho Lal. Based on the above facts, the plaintiff claimed that he was entitled to the share of Madho Lal in the property of Kishan Lal. 2.3 The defendant Mukat Lal, on the other hand, denied in the first place that the plaintiff Kailash was adopted son of Smt.Nand Kanwari Bai and Madho Lal. It was also submitted that the last coparcener Kanwar Lal died in the year 1954 leaving behind a Will in favour of Mukat Lal, the defendant and, as such, the coparcenery came to an end in the year 1954 itself and consequently, the plaintiff had no right to claim any share in the property. 2.4 A few additional facts may also be taken note of. Smt.Nand Kanwari Bai filed a suit in the year 1958 for declaration that the property is a joint Hindu Family Property and that the Will is illegal and that Mukat Lal was not entitled to inherit the property by virtue of the aforesaid Will. 2.4 A few additional facts may also be taken note of. Smt.Nand Kanwari Bai filed a suit in the year 1958 for declaration that the property is a joint Hindu Family Property and that the Will is illegal and that Mukat Lal was not entitled to inherit the property by virtue of the aforesaid Will. The aforesaid suit filed by Smt.Nand Kanwari Bai was dismissed by the trial court and it was held that she was entitled to maintenance alone out of the property left behind by Kishan Lal. However, the finding given on issue No.1, as is evident from the document Annexure R-4/9 at page 109 is that the property was held to be Joind Hindu Family Property but Smt.Nand Kanwari Bai was held entitled only to maintenance as in the opinion of the learned Trial Court, the Hindu Women''s Right to Property Act not being applicable at the time in the State of Bundi, the share which was of her husband passed by survivorship to Kanwar Lal, the sole surviving coparcener. It was held that Kanwar Lal inherited the property subject to the liability of Madho Lal, the husband of Smt.Nand Kanwari Bai and mother of the petitioner herein. 2.5 Thereafter, in the year 1966, Mukat Lal, the defendant herein, filed a suit for declaration that the judgment and decree dated 21.05.1959 in favour of Smt.Nand Kanwari Bai be declared to be void and not binding on him and that the said decree had been obtained by collusion and fraud. By the judgment and decree dated 12.07.1966, the suit filed by Mukat Lal for declaring the decree dated 21.05.1959 passed in favour of Smt.Nand Kanwari Bai to be void was dismissed. However, Mukat Lal not being satisfied preferred an appeal before the Senior Civil Judge who allowed the same by judgment dated 09.02.1968 and decreed the suit of Mukat Lal while setting aside the judgment and decree dated 21.05.1959 passed in Civil Suit No.11/1958 in favour of Smt.Nand Kanwari Bai. 2.6 Smt.Nand Kanwari Bai, the widow of Madho Lal being aggrieved by the aforesaid judgment and decree dated 09.02.1968 preferred a second appeal before the High Court being S.B.Civil Second Appeal No.347/1968. 2.6 Smt.Nand Kanwari Bai, the widow of Madho Lal being aggrieved by the aforesaid judgment and decree dated 09.02.1968 preferred a second appeal before the High Court being S.B.Civil Second Appeal No.347/1968. 2.7 During the pendency of the aforesaid second appeal before the High Court, Smt.Nand Kanwari Bai died in the year 1972, as such, an application came to be filed by thepresent petitioner Kailash Chand stating therein that he is adopted son of Smt.Nand Kanwari Bai having been taken in adoption in the year 1959. The aforesaid application was contested by Mukat Lal, the non-petitioner/defendant herein. Consequently, the matter whether Kailash was the adopted son of Madho Lal and Smt.Nand Kanwari Bai was remitted for inquiry to the learned Munsif (trial court). After the inquiry, the learned Munsif sent his finding along with the record wherein it was recorded that Kailash Chand was the adopted son of Madho Lal. Based upon the above findings, the High Court vide order dated 06.03.1973 ordered after hearing the learned counsel for the parties recorded that "right to sue survives and, therefore, Shri Kailash Chand is entitled to be substituted as legal representative of Smt.Nand Kanwari Bai." It was recorded by the learned Single Judge that he would record the reason in the judgment itself and the case was heard on the merits on the same day and the arguments concluded. The High Court vide judgment dated 20.03.1973 (Annexure R- 4/13) allowed the second appeal and set aside the judgment of the learned Civil Judge dated 09.02.1968. Consequently, the second appeal being allowed the suit filed by Mukat Lal for avoiding the judgment and decree dated 21.05.1959 in Suit No.11/1958 decided in favour of Smt.Nand Kanwari Bai, the mother of the plaintiff/petitioner stood dismissed. Consequently, the second appeal being allowed the suit filed by Mukat Lal for avoiding the judgment and decree dated 21.05.1959 in Suit No.11/1958 decided in favour of Smt.Nand Kanwari Bai, the mother of the plaintiff/petitioner stood dismissed. 2.8 It is in this background, as narrated in the plaint (Annexure-1) that the plaintiff filed the present suit on the basis of the above declarations and findings that he being the adopted son of Smt.Nand Kanwari Bai, wife of Madho Lal and Madho Lal being son of Kishan Lal, the property in the hands of Kanwar Lal being a Joint Hindu Family Property, Smt.Nand Kanwari Bai as Widow of Madho Lal had a charge on the same for her right of maintenance and that on coming into force of the Hindu Succession Act in the year 1956, the limited estate of Smt.Nand Kanwari Bai ripened into an absolute estate and, therefore, the petitioner/plaintiff Kailash Chand, being the adopted son, was entitled to one half share in the same irrespective of the fact that Kanwar lal had bequeathed the property to Mukat Lal, the defendant by his Will of 1949. 2.9 The learned trial court vide its judgment dated 14.12.1983 decreed the suit of the plaintiff holding under issue No.2 that the plaintiff/petitioner Kailash Chand was the adopted son and the property being a Joint Hindu Family Property in the hands of Kanwar Lal, the plaintiff Kailash Chand was entitled to one half share belonging to Madho Lal and Smt.Nand Kanwari Bai. 2.10 The defendant Mukat Lal being aggrieved by the aforesaid judgment and decree filed an appeal before the Revenue Appellate Authority, Kota. The learned Revenue Appellate Authority by its judgment dated 31.01.1986 reversed the judgment passed by the trial court and allowed the appeal. 2.10 The defendant Mukat Lal being aggrieved by the aforesaid judgment and decree filed an appeal before the Revenue Appellate Authority, Kota. The learned Revenue Appellate Authority by its judgment dated 31.01.1986 reversed the judgment passed by the trial court and allowed the appeal. The learned Revenue Appellate Authority held that as per the judgment and decree of the High Court dated 20.03.1973 passed in the second appeal, Kailash Chand had been found to be adopted son of Smt.Nand Kanwari Bai and Smt.Nand Kanwari Bai was found entitled only to maintenance and that the property having devolved in favour of Mukat Lal in the year 1954, upon the death of Kanwar Lal, by virtue of his Will executed in the year 1949, the plaintiff was not entitled to any share as his adoption took place in the year 1959 after devolution of the property on defendant by virtue of Will of Kanwar Lal, the last surviving coparcener, in the year 1954. 2.11 Being aggrieved by the aforesaid judgment and decree of the learned Revenue Appellate Authority, Kota reversing the judgment and decree of the learned trial court, the plaintiff Kailash Chand, the petitioner herein, preferred a second appeal before the learned Board of Revenue. The learned Board of Revenue by its judgment dated 12.03.1992 dismissed the second appeal filed by the petitioner upholding the judgment and decree dated 31.01.1986 passed by the learned Revenue Appellate Authority and dismissed the suit. 2.12 Being aggrieved by the aforesaid judgment of learned Board of Revenue as well as of the learned Revenue Appellate Authority, the petitioner has preferred writ petition under Article 226 of the Constitution of India which was allowed by learned Single udge. 3. Learned counsel Mr. Maloo submits that non petitioner Kailash Chand filed suit for partition claiming half share in the agriculture land 84 Bighas 12 Biswas and for separate possession - against petitioner Mukatlal. It was stated that Shri Kishan Lal was common ancestor, he had two sons mangilal & Madholal. Mangilal had one son Kanwarlal. It was stated that after death of Kishanlal & Mangilal, Madholal & Kanwarlal were coparceners. Kanwarlal executed will of the property in favour of his adopted son Mukatlal. After death of Kanwarlal his adopted son Mukatlal & Madholal became coparceners and remained in joint possession. He stated that he was adopted son of Shri Madholal. Mangilal had one son Kanwarlal. It was stated that after death of Kishanlal & Mangilal, Madholal & Kanwarlal were coparceners. Kanwarlal executed will of the property in favour of his adopted son Mukatlal. After death of Kanwarlal his adopted son Mukatlal & Madholal became coparceners and remained in joint possession. He stated that he was adopted son of Shri Madholal. After death of Madholal, his mother Smt. Nand Kanwari Bai filed a suit against Mukatlal for declaration of ownership over the property, possession and for claiming maintenance. In this suit maintenance was granted to her by way of food grain, monthly payment of money and a portion of house for residence. Subsequently Mukatlal filed a suit that the aforesaid decree for maintenance is not binding on him due to gross negligence of his guardian ad lite, which was dismissed by trial court, decreed by District Judge which was reversed in second appeal. Shri Madholal died 50 years back hence Shri Kanwarlal became sole surviving coparcener and therefore the entire property vested in him as sole owner. The alleged adoption of the plaintiff by Smt. Nand Kanwari bai in 1959, 30 years after death of her husband, was denied on fact and in law. It was further submitted that Smt. Nand Kanwari bai had no share in the ancestral property and therefore the plaintiff has no right. It was also submitted that earlier Smt. Nand Kanwari bai had filed a suit in 1958 for declaration of ownership on this property and separate possession besides maintenance but it was dismissed so far as declaration and possession is concerned and only maintenance was granted in 1959. 4. A suit for cancellation of will executed by Kanwarlal in favour of Mukatlal was also filed which was dismissed in 1951. In this suit kailash was also a plaintiff. Trial court (SDO) decreed suit and passed preliminary decree of partition. RAA allowed defendant''s appeal/suit dismissed. Board of Revenue dismissed plaintiff''s second appeal/suit dismissed. Board of Revenue dismissed plaintiff''s second appeal/suit dismissed. Writ petition filed by plaintiff has been allowed. Concurrent judgment of RAA and Board of Revenue set aside by making out a totally new case. 5. Trial court (SDO) decreed suit and passed preliminary decree of partition. RAA allowed defendant''s appeal/suit dismissed. Board of Revenue dismissed plaintiff''s second appeal/suit dismissed. Board of Revenue dismissed plaintiff''s second appeal/suit dismissed. Writ petition filed by plaintiff has been allowed. Concurrent judgment of RAA and Board of Revenue set aside by making out a totally new case. 5. Learned counsel Shri Maloo contended that in view of observations made at page 58 reads as under:- and contended that the averments made by the appellant''s in appeal preferred by them is contrary to what has been held by the learned Single Judge. He also pointed out that the averments which are made at Page 70 where the issues which are framed, are as under: 6. Counsel for the appellant has also contended the issue No.4 which was decided by the Trial Court, reads as under:- 7. Learned counsel further contended that the issue No.7, reads as under: 8. Learned counsel further contended that the appellate authority vide judgment dated 31.01.1986 has rightly dismissed the suit and held that the res judicata principle is rightly applicable in the facts of the case. He has strongly contended that the Appellate Authority, observed as under: 9. Learned counsel further contended that in view of the previous decision in a suit filed by the mother of the present respondent the same is binding on the respondent. She is being claimed from Nand Kanwari Bai which she has filed civil suit in the year 1958 which came to be adopted on 12.06.1959. 10. Learned counsel for appellant has taken us through the observations made by the Court of Civil Judge in its judgment dated 21.05.1959, which observed as under:- "As a result, I hold that the suit property was a joint Hindu family property. The next question is what is right of the plaintiff in property? The plaintiff is admittedly the widow of one of the deceased co-parceners who was entitled to a share in property. The husband of the plaintiff admittedly died about 20 or 22 years ago when there was no Hindu Women''s Right to Property Act in force in the Bundi State. The share of her husband, therefore passed, by survivership to the other coparcener Kanwarlal who was then alive. But it passed on to Kanwarlal subject to the liabilities of Madholal. The husband of the plaintiff admittedly died about 20 or 22 years ago when there was no Hindu Women''s Right to Property Act in force in the Bundi State. The share of her husband, therefore passed, by survivership to the other coparcener Kanwarlal who was then alive. But it passed on to Kanwarlal subject to the liabilities of Madholal. Madholal was bound to maintain his wife, the plaintiff in this case. Kanwarlal, therefore, on the death of Madholal became liabilities maintain the plaintiff cut of the share of Madholal and to that extent only. The plaintiff is, therefore, not entitled to any ownership in respect of the suit properties but is entitled to maintenance out of the same. I decided the issue accordingly. Issue No.(2) There is no evidence on the point and the issue is decided in the negative. Issue No.(3):- No arguments were advanced on the point. I have already held above that the plaintiff is entitled to maintenance. Such a suit clearly lied in the Court. I, therefore, decide this issue against the appellant. Issue No.(4) In para 4 of the plaint the plaintiff alleged that kanwarlal made a will of the suit properties in favour of the defendants which was illegal. Opinion, when Kanwarlal was sole surviving co-parcener he could dispose of the property by a will. No reason was advanced before me why the will should be hold illegal. However, kanwarlal on the death of Madholal as the owner of the entire property by survivership but subject to the right of the plaintiff to be maintained out of the property. The right of the plaintiff to be maintained of the property will subsist so long as where is alive. In the defendant inherited the property on a will made by Kanwarlal in his favour, he inherited it subject to all the liabilities of Kanwarlal. Therefore, when Kanwarlal was bound to maintain the plaintiff out of the suit property, tht liability passed on to the defendant when he inherited the property by virtue of the will in his favour. I, therefore, decide this issue accordingly. Issue No.(5):- I have already held above that the plaintiff is entitled to maintenance. Right of maintenance crues every day and a claim for maintenance can never become barred by time. I, decide this issue accordingly. I, therefore, decide this issue accordingly. Issue No.(5):- I have already held above that the plaintiff is entitled to maintenance. Right of maintenance crues every day and a claim for maintenance can never become barred by time. I, decide this issue accordingly. Issue No.(6):- Under issue No.1 I have held that the plaintiff did not acquire any rights of ownerships over the suit property but where is entitled to maintenance out of by same. D.W.1 Ramnath, the guardian and natural father of the defandant in suit, admitted that the plaintiff is entitled to maintenance. He stated that 9 Mds. Of wheat per year, a residential house or a rent of Re.1/- per month and Rs. 10/- per month for other expenses would be sufficient for the maintenance of the plaintiff. There is no contrary evidence on the record of the case and I see no reason to disbelieve the witness. The witness further stated that he was prepared to provide the plaintiff with a separate resident inhis own house. He also stated that he would open a separate door in the house which he would give to the plaintiff. As a result, I dismiss the plaintiff's claim for declaration of ownership and possession over the suit properties. However, I award a decree for maintenance in favour of the plaintiff against the defendant. The defendant shall deliver 9 Mds. Of wheat every year in advance to the plaintiff on every Vaisakh Sudi 15. the defendant shall also within 15 days from today provide separate residence to the plaintiff in the house owned by his guardian Ramnath and shall open a separate door in it. In case the defendant fails to provide that residence as directed above, defendant shall pay Re.1/- per month by way of rent to the plaintiff with effect from 15 days after today. In case of the plaintiff does not accept the resident as indicated above, she shall not be entitled to any amount by way of rent for the period for which she does not accept that residence. The defendant shall further pay Rs. 10/- per month in advance from today for other expenses to the plaintiff. The plaintiff shall be entitled to receive all this during her life time and till her death the defendant and in case of his death his legal representatives shall be bound to provide maintenance to the plaintiff as indicated above. The defendant shall further pay Rs. 10/- per month in advance from today for other expenses to the plaintiff. The plaintiff shall be entitled to receive all this during her life time and till her death the defendant and in case of his death his legal representatives shall be bound to provide maintenance to the plaintiff as indicated above. The right of the plaintiff for maintenance, as indicated above, shall be a charge on the suit properties. Parties shall bear their own costs and has also taken us to the observations made by Senior Civil Judge in Civil Appeal No.64/1966 decided on 09.02.1962 wherein while deciding the matter the Court has observed as under:-" The appeal is accepted. The judgment and decree dated 12.7.66 is set aside. The plaintiff's suit is decreed and the decree dated 21.5.1959 passed by the Senior Civil Judge Bundi in suit No.11/58 is set aside. The plaintiff appellant shall get costs of this appeal as well as of the lower court from the defendant respondent." 11. Taking into consideration the learned Single Judge has seriously committed error. He has also taken us to the suit filed by the father before adoption being civil suit No.477/50 where the present Will was subject matter of challenge and the same was accepted by which the suit was dismissed and Will was held to be valid. 12. Learned counsel for the appellant strongly contended that the original plaintiff himself was adopted mother, he has strongly relied upon following decisions: 1. Gulabrao Balwantrao Shinde and Ors. vs. Chhabubai Balwantrao Shinde and Ors., (2003) 1 SCC 212 . 2. Shivdev Kaur (Dead) by Lrs. And Ors. vs. R.G. Grewal, (2013) 4 SCC 636 . 3. Dharma Sharmrao Agalawe vs. Pandurang Miragu Agalawe and Ors., AIR 1988 SC 848. 4. Namdev Vyankat Ghadge and Anr. vs. Chandrakant Ganpat Ghadge and Ors., (2003) 4 SCC 71 . 5. Y.K. Nalavade and Ors. vs. Ananda G. Chavan and ors., AIR 1981 Bombay 109. 6. K.Indira Bai vs. R. Venkata Sivaprasada Rao, AIR 1953 Madras 461. 7. Bodi Alias Lakshmakka and Three Ors. vs. Venkataswami Naidu and Two Ors., AIR 1915 MAD 1077. 8. Jaladi Suguna (Deceased) through LRs. vs. Satya Sai Central Trust and Ors., (2008) 8 SCC 521 . 9. Ramchandra Dagdu Sonavane (Dead) vs. Vithu Hira mahar (Dead) by LRs. And Ors., (2009) 10 SCC 273 . 13. 7. Bodi Alias Lakshmakka and Three Ors. vs. Venkataswami Naidu and Two Ors., AIR 1915 MAD 1077. 8. Jaladi Suguna (Deceased) through LRs. vs. Satya Sai Central Trust and Ors., (2008) 8 SCC 521 . 9. Ramchandra Dagdu Sonavane (Dead) vs. Vithu Hira mahar (Dead) by LRs. And Ors., (2009) 10 SCC 273 . 13. Therefore, he contended that the view taken by the learned Single Judge deserves to be reversed and the view taken by the RAA and Board of Revenue are required to be accepted. 14. Counsel for respondent Mr. Garg has taken us through the evidence and relied upon the following decisions which are as under:- 1. Gulabrao Balwantrao Shinde and Ors. vs. Chhabubai Balwantrao Shinde and Ors., (2003) 1 SCC 212 , wherein it has been observed as under:- 7. Counsel for the appellants vehemently argued that in the absence of any pleadings and evidence to the effect that the Balwantrao Shinde had given the property to Chhabubai in lieu of maintenance, the High Court has erred in recording a finding that the property in possession of Chhabubai was in lieu of maintenance which could be enlarged into full ownership rights on her. Counsel for the respondents virtually conceded that Chhabubai did not either raise the plea nor lead any evidence to prove that the properties were given to her by way of maintenance by Balwantrao Shinde. It is also not disputed that properties in the hands of Balwantrao Shinde were ancestral in nature. We agree with the plea raised by the counsel for the appellants that in the absence of any pleadings to the effect that Balwantrao Shinde had given the properties to Chhabubai by way maintenance and in the absence of any evidence to that effect, the finding that the properties were given in lieu of maintenance to Chhabubai which right could be enlarged into full ownership right could not be recorded. The High Court was clearly fell in error in recording a finding to the effect that Chhabubai had become absolute owner of the properties left by Balwantrao Shinde. Another factor which persuades us to take this view is that the properties were ancestral hands of Balwantrao Shinde in which plaintiff No. 1 had a right by birth. The entire property therefore could not have been given to Chhabubai by way of maintenance. 2. Shivdev Kaur (Dead) by Lrs. And Ors. Another factor which persuades us to take this view is that the properties were ancestral hands of Balwantrao Shinde in which plaintiff No. 1 had a right by birth. The entire property therefore could not have been given to Chhabubai by way of maintenance. 2. Shivdev Kaur (Dead) by Lrs. And Ors. vs. R.G. Grewal, (2013) 4 SCC 636 , wherein it has been observed as under:- 10. Section 14 of the Act 1956 reads as under: 14. Property of a female Hindu to be her absolute property. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. (2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. (Emphasis added) The aforesaid statutory provisions provide for conversion of life interest into absolute title on commencement of the Act 1956, however, Subsection (2) carves out an exception to the same as it provides that such right would not be conferred where a property is acquired by a Hindu female by way of gift or under a Will or any other instrument prescribing a restricted estate in that property. 11. In Mst. Karmi vs. Amru and Ors. AIR 1971 SC 745 , a similar issue was considered by this Court and after examining the contents of the Will came to the conclusion that where a woman succeeded some property on the strength of a Will, she cannot claim any right in those properties over and above what was given to her under that Will. The life estate given to her under the Will would not become an absolute estate under the provisions of the Act 1956 and, thus, such a Hindu female cannot claim any title to the suit property on the basis of the Will executed in her favour. (See also: Navneet Lal @ Rangi vs. Gokul and Ors. AIR 1976 SC 794 ; and Jagan Singh (Dead) Through L.Rs. vs. Dhanwanti and Anr. (2012) 2 SCC 628 . 12. (See also: Navneet Lal @ Rangi vs. Gokul and Ors. AIR 1976 SC 794 ; and Jagan Singh (Dead) Through L.Rs. vs. Dhanwanti and Anr. (2012) 2 SCC 628 . 12. In Sadhu Singh vs. Gurdwara Sahib Narike and Ors. AIR 2006 SC 3282 , this Court again considered the issue,as under: "14. When he thus validly disposes of his property by providing for a limited estate to his heir, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the introduction of Section 14(2) of the Act and excluding the operation of Section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otiose. It will also make redundant, the expression "property possessed by a female Hindu" occurring in Section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance. (Emphasis added) 13. Shri Verma, learned Counsel for the Appellant placed a very heavy reliance on the judgment of this Court in Balwant Kaur and Anr. vs. Chanan Singh and Ors. AIR 2000 SC 1908 , contending that a destitute Hindu daughter if acquires such a right, it would stand crystallised in absolute title. There is a complete fallacy in his argument. In the said case, this Court held that all the clauses of the Will must be read together to find out the intention of the testator. AIR 2000 SC 1908 , contending that a destitute Hindu daughter if acquires such a right, it would stand crystallised in absolute title. There is a complete fallacy in his argument. In the said case, this Court held that all the clauses of the Will must be read together to find out the intention of the testator. The court held: ...This is obviously on the principle that the last clause represents the latest intention of the testator. It is true that in the earlier part of the Will, the testator has stated that his daughter Balwant Kaur shall be the heir, owner and titleholder of his entire remaining moveable and immovable property but in the later part of the same Will he has clearly stated that on the death of Balwant Kaur, the brothers of the testator shall be the heirs of the property. This clearly shows that the recitals in the later part of the Will would operate and make Appellant 1 only a limited estate-holder in the property bequeathed to her. (Emphasis added) 14. Thus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu female has been given only a "life interest", through Will or gift or any other document referred to in Section 14 of the Act 1956, the said rights would not stand crystallised into the absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/title into the property by virtue of the provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and 30 of the Act 1956 would become otiose.Section 14(2) carves out an exception to rule provided in Sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a "life interest", it would remain the same even after commencement of the Act 1956, and such a Hindu female cannot acquire absolute title. 15. Whether person is destitute or not, is a question of fact. The expression 'destitute' has not been defined under the Act 1956 or under the Code of Criminal Procedure, 1973, or Code of Civil Procedure, 1908. The dictionary meaning is "without resources, in want of necessaries". 15. Whether person is destitute or not, is a question of fact. The expression 'destitute' has not been defined under the Act 1956 or under the Code of Criminal Procedure, 1973, or Code of Civil Procedure, 1908. The dictionary meaning is "without resources, in want of necessaries". A person can be held destitute when no one is to support him and is found wandering without any settled place of abode and without visible means of subsistence. In the instant case, no factual foundation has ever been laid by the Appellant before the courts below in this regard. In such a fact-situation, the issue does not require consideration. 16. All the courts have taken a consistent view rejecting the claim of the Appellant of having acquired an absolute title. We do not see any cogent reason to interfere with the concurrent findings of facts. Appeals lack merit and are accordingly dismissed. 3. Dharma Shamrao Agalawe vs. Pandurang Miragu Agalawe and Ors., AIR 1988 SC 845 , wherein it has been observed as under:- 1. The short question which arises for consideration in this case is whether a person adopted by a Hindu widow after the coming into force of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act') can claim a share in the property which had devolved on a sole surviving coparcener on the death of the husband of the widow who took him in adoption. 2. One Shamrao, who was governed by the Mitakshara Hindu Law died leaving behind him two sons Dharma (the appellant in this appeal) and Miragu. Miragu died issueless in the year 1928 leaving behind him his widow Champabai respondent No. 2. The properties owned by the joint family of Dharma and Miragu passed on to the hands of Dharma who was the sole surviving coparcener on the death of Miragu. Under the law, as it stood then, Champabai had only a right of maintenance in the joint family properties. The Act came into force on 21st December, 1956. The properties owned by the joint family of Dharma and Miragu passed on to the hands of Dharma who was the sole surviving coparcener on the death of Miragu. Under the law, as it stood then, Champabai had only a right of maintenance in the joint family properties. The Act came into force on 21st December, 1956. On 9.8.1968 she took Pandurang, the 1st respondent, in adoption and immediately thereafter a suit was filed by Pandurang and Champabai in Regular Civil suit No. 457 of 1968 on the file of the Civil Judge, Junior Division, Barsi for partition and separate possession of one-half share in the properties of the joint family of which Dharma, the appellant herein, and Miragu were coparceners. Before the said adoption took place, two items of the joint family properties had been sold in favour of Defendant Nos. 3 and 17 for consideration. Champabai had instituted a suit for maintenance against Dharma and obtained a decree for maintenance. Dharma resisted the suit on the ground that Pandurang was not entitled to claim any share in the properties which originally belonged to the joint family in view of Clause (c) of the proviso to Section 12 of the Act and the properties Which had been sold by him in favour of third parties could not in any event be the subject-matter of the partition suit. 9. We respectfully agree with the above observations of this Court in Vasant's case (supra). The joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property. If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alienation cannot object to alienations made before he was begotten or adopted. 10. The decision of the High Court of Bombay in Y.K. Nalavad's case (supra) which was followed by the High Court in dismissing the appeal, cut of which the present appeal arises, has been rightly given. We agree with the reasons given by the High Court of Bombay in that decision for taking the view that Clause (c) to proviso of Section 12 of the Act would not be attracted to a case of this nature since as observed by this Court in Vasant's case (supra) there was no 'vesting' of joint family property in Dharma - the appellant took place on the death of Miragu and no 'divesting' of property took place when Pandurang - the first respondent was adopted. The decision of the Andhra Pradesh High Court in Narra Hanumantha Rao's case (supra) which takes a contrary view is not approved by us. It, therefore, stands overruled. 11. The joint family properties continued to remain in the hands of Dharma - the appellant as joint family properties and that on his adoption Pandurang - the 1st respondent became a member of the coparcenary entitled to claim one-half share in them except those items which had been sold by Dharma - the appellant. 4. Namdev Vyankat Ghadge and Anr. vs. Chandrakant Ganpat Ghadge and Ors., (2003) 4 SCC 71 ,wherein it has been observed as under:- 11. This Court in the case of Dharma aforementioned respectfully agreed with the above observations made in Vasant vs. Dattu (supra), as stated in para 9 of the said judgment thus:- "We respectfully agree with the above observations of this Court in Vasant's case (supra). The joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property. If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alienation cannot object to alienation made before he was begotten or adopted." 12. Finally this Court concluded that the joint family property continued to remain in the hands of Dharma, the appellant, as joint family properties and that on his adoption Pandurang, the first respondent, became the member of the coparcenary entitled to claim one half share in them except the items, which had been sold by Dharma, the appellant. 13. From the facts in Dharma's case it is clear that 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 this 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. 16. It is appropriate to extract Section 12 of the Act, which reads:- "12. Effect of Adoption. 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. 16. It is appropriate to extract Section 12 of the Act, which reads:- "12. Effect of Adoption. - An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that - (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption." (emphasis supplied) 17. It is plain and clear that an adopted child shall be deemed to be the child of his or her adopted father or mother for all purposes with effect from the date of adoption as is evident from the main part of Section 12. Proviso (c) to Section 12 in clear terms states that the adopted child shall not divest any person of any estate, which vested in him or her before the adoption. 18. In the case of Dharma aforementioned, adopted son became member of coparcenary with Dharma and there was no question of divesting of any property already vested in the view expressed by this Court in Vasant (supra). 19. But on the death of Vyankat, in the present case, property in his hands devolved and vested in his heirs. In view of proviso (c) of Section 12 of the Act defendant No. 6 Dattatraya by virtue of his adoption four months after the death of Vyankat could not divest the properties vested in the heirs of Vyankat so as to claims his share. 5. Y.K. Nalavada and Ors. In view of proviso (c) of Section 12 of the Act defendant No. 6 Dattatraya by virtue of his adoption four months after the death of Vyankat could not divest the properties vested in the heirs of Vyankat so as to claims his share. 5. Y.K. Nalavada and Ors. vs. Ananda G. Chavan and Ors, Air 1981 Bombay 109, wherein it has been observed as under:- 10. It is true that the property includes and interest therein, and such an interest may admit the process of vesting and divesting in the same manner as the property itself. No process of vesting or divesting however, can be said to be, strictly speaking, involved merely, in the fluctuations of such indefinite and uncertain interests in the property to which the joint family property is exposed, on increase or decrease in the strength thereof. That one may loosely describe it so unguardedly is besides the point. Recognition of such member's right to alienate his undivided interest or of its vesting in the Receiver in any Court proceedings, on equitable considerations under the Judge made law, still cannot make any difference to the fluctuating nature of such an undivided interest and the principle enunciated in the above passages. 11. The law declared in these passages still holds good in regard to the incidents of joint family properties and interests of the incoming and outgoing members therein. Recent enactments have not altered it the least. The property left with Dhondi on the death of Govinda in 1929, continued to be the joint family property under this law, notwithstanding his being the sole surviving coparcener. It was as much liable to be shared by any coparcener that Govinda's widow might bring in the family by adoption at any time during her lifetime, as by his own sons on their birth. Dhondi's title, so inherently defeasible, on account of its character and incidence, was first defeated on the birth of his sons and again, defeated when one of his sons, Ananda was adopted and made -a coparcener of equal status in place of his adaptive father Govinda on April 1, 1957. This defeasance is the incidence not of the adoption, but of the character of the property, and the family, and widow's rights therein. The adoption merely furnished an occasion as. the birth in the family could have. This defeasance is the incidence not of the adoption, but of the character of the property, and the family, and widow's rights therein. The adoption merely furnished an occasion as. the birth in the family could have. Thus no question of the property being vested in Dhondi or his being, divested by Ananda in 1957 on adoption can really arise. Ananda succeeds to the interest of his father as coparcener by the sheer force of this unaltered legal position as per the rules of survivorship. 15. Section 12 is aimed at eradicating such inequities. Adoption is expressly made effective from the date of adoption. Section 12 consists of two parts. The second part specifically deals with the ties forged and snapped on adoption and their effect on the rights in the property acquired during the subsistence of such ties. Both the parts of Section 12 are aimed at abolishing the much maligned doctrine of "relation back", by reference to its retrospective effect on the rights in the property. Though, both the parts make adoption effective from the date of adoption, raising fictions to that effect, mechanism resorted to, to achieve the same objective, is different in the one from the other. The fiction raised in the first part is to be effective "for all purposes" from the date of adoption. This prevents the adoption in the joint family from having any retrospective effect on its property. Under the rule of survivorship, a member gets interest in the property on his birth or adoption. The section prevents the rule of survivorship from having any effect before the date of adoption and prevents the adopted son from re-opening the partition effected after the death of his adoptive father and consequently reaching the property in the hands of the divided members or their heirs. 16. The section prevents the rule of survivorship from having any effect before the date of adoption and prevents the adopted son from re-opening the partition effected after the death of his adoptive father and consequently reaching the property in the hands of the divided members or their heirs. 16. The second part takes notice of the inevitable retrospective effect of the severance and replacement of the "ties" on adoption and consequential divesting of the adopted son and others of the properties inherited as the nearest available heir during the subsistence of the preadoption ties, consistent with the fiction of his being born in adoptive family, while devolution of the property on the member of the joint family entering therein by birth or adoption, under the rule of survivorship becomes effective only on partition, the succession to the same under rule of inheritance by the nearest available heir becomes effective immediately on the death of the holder, when succession opens. Second part, however, makes such divesting ineffective firstly by eliminating all pervasive "for all purposes" fiction of the first part from this part, and secondly by making the post-adoption ties effective from the date of adoption; and thirdly, by engrafting an exception to ordinary retrospective effect of severance and replacement of "ties" by enacting Clauses (b) and (c) in the proviso and expressly preventing and divesting of the child and other persons of the properties inherited by them, as nearest heir, during the subsistence of the pre-adoption ties. Merely making adoption effective from the date of adoption could not have had this effect. Arguably such date could be taken as the date from which, rights acquired under the ties newly forged could be enforced with retrospective effect. The "for all purposes" fiction of the first part also could have operated to produce the opposite result. Clauses (b) and (c) of the proviso thus form integral part of the second part of the section which is aimed at preventing the adoption ties from having any retrospective effect on the properties vested. Reference to Clause (a) is not relevant in the present context, but nature of the prohibitions against marriage sought to be preserved thereunder also shows, how the entire proviso and the second part of the section is intended to prevent retrospective effect of the adoption ties. 17. Reference to Clause (a) is not relevant in the present context, but nature of the prohibitions against marriage sought to be preserved thereunder also shows, how the entire proviso and the second part of the section is intended to prevent retrospective effect of the adoption ties. 17. Though the Section 2 does not expressly refer to the two different rules of devolution, the text makes it clear that first part prevents the rule of survivorship from having retrospective effect while second part prevents rule of inheritance from having such retrospective effect. Ananda's claim on adoption to the interest in the property held by Dhondi, as a sole surviving coparcener is covered by first part of the Section 12 and not by the second part thereof. Clause (c) of the proviso is not connected therewith. Reliance thereon by Mr. Sali is thus misconceived." 6. K. Indira Bai vs. R. Venkata Sivaprasada Rao, AIR 1953 Madras 461, wherein it has been observed as under:- 14. With due respect to the learned Judge we have no hesitation in holding that he was in error in his conclusion. The learned Judge was evidently misled by the use of the words "testamentary capacity". He apparently proceeded on the assumption that an undivided Hindu coparcener had no testamentary capacity. This of course is wrong. section 59 of the Succession Act declares that every person of sound mind not being a minor may dispose of his property by will. An undivided coparcener who is not under any personal disability and who is in a sound disposing state of mind has the capacity to execute a will. The rules of Hindu law only curtail the powers of the testator to affect by will joint family property and do not take away the capacity of the coparcener to make a will. Obviously an undivided coparcener, can validly dispose of his separate property. His status as an undivided coparcener does not prevent him from doing so. Only a member of an undivided family cannot validly bequeath his undivided coparcenary interest in the family properties. It is not a lack of capacity; it is a lack of power to bequeath. In other words, the will cannot affect joint family property. The reason is succinctly stated in a very early Madras case. Only a member of an undivided family cannot validly bequeath his undivided coparcenary interest in the family properties. It is not a lack of capacity; it is a lack of power to bequeath. In other words, the will cannot affect joint family property. The reason is succinctly stated in a very early Madras case. -- Vitla Butten vs. Yamenamma', 8 Mad HC Rule 6 thus, "At the moment of death the right by survivorship is at conflict with the right by devise. Then the title by survivorship, being the prior title, takes precedence to the exclusion of that by devise." A Will speaks only from the date of the death of the testator. But on the death of an undivided member of a coparcenary his interest survives to the other member or members with the result that the will cannot operate on such interest. In this view the important question to be determined is not. whether a testator was or was not an undivided coparcener at the time of the execution of the will but whether he died a divided or an undivided member of a joint family. If at the time of his death he was undivided member, the will will not have any effect on his undivided share of joint family property, but if he was divided then the will would be valid, and the disposition of his divided share would be valid. The case in -- 'Shib Sabitri Prasad vs. Collector of Meerut, 29 All 82 is directly, hi point. In that case one Nanakchand executed a will on 20-1- 1885. He died on 16-10-1899. It was admitted that Nanakchand died separate from the rest of his family. It was contended that the will was invalid because he was not divided at the time of the execution of the will. The learned Judges did not accept the contention. In that case one Nanakchand executed a will on 20-1- 1885. He died on 16-10-1899. It was admitted that Nanakchand died separate from the rest of his family. It was contended that the will was invalid because he was not divided at the time of the execution of the will. The learned Judges did not accept the contention. Assuming that he was joint at the time of the will, as it was admitted that he was separate when he died, they held that the will must be construed as "Speaking and taking effect with reference to the state of things in existence immediately before the testator's death, when admittedly he had separated from the members of his family." In -- 'Bodi vs. Venkataswami Naidu, 38 Mad 369, a Hindu, who had no male issue or an undivided coparcener along with him, executed a will which devised ancestral properties to which hg was at that time absolutely entitled as the sole surviving coparcener. But subsequent to the execution of the will, the testator had a son born to him. But the son died shortly after his birth, so that the testator had no son alive at the time of his death. The question was whether the will had been revoked by reason of the death of a son after the execution of a will. It was held that it was not. In discussing the law on the point the learned Judges start with the basic principle that a will is to be understood as speaking at the death of a testator and its validity is to be determined accordingly. They also take it as well settled that even property which a person does not possess at the time of the will may be validly bequeathed. They then say: "Survivorship has the effect of rendering a will invalid with respect to property which the testator could not dispose of at the time of his death. They also take it as well settled that even property which a person does not possess at the time of the will may be validly bequeathed. They then say: "Survivorship has the effect of rendering a will invalid with respect to property which the testator could not dispose of at the time of his death. All other dispositions made by him are valid." This principle is also illustrated by cases in which it has been held that where a sole surviving coparcener makes a will of ancestral property and subsequently makes an adoption, the will becomes inoperative and by cases in which he has been held that where subsequent to the will a son is born who survives the testator or when a posthumous son is born, the will becomes inoperative so far as joint family property is concerned. See -- 'Krishnamurthi vs. Krishnamurthi', 50 Mad 508 (pC) and --Minakshi vs. Virappa', 8 Mad 89. 15. It is therefore clear that if the testator in this case can be said to have died a divided member, then the will would certainly be operative in respect of the divided share of the testator. The fact that at the time of the execution of the will he was not separate would not be material. The learned Judge erred in thinking that the testator should have been a divided member even at the lime of the execution of the will. 7. Bodi Alias Lakshmakka and Three Ors. vs. Venkataswami Naidu and two ors., AIR 1915 Mad 1077, wherein it has been observed as under:- 2. It does not appear that he means to state that a change in the nature of the estate possessed by the testator in consequence of supervening external events and not due to his own voluntary act or to a sale directed by a Court would have the effect of revoking the will. Mr. Seshagiri Ayyar refers also to a passage in 40 American Cyclopedia, page 1207, "An involuntary conveyance of property previously devised also removes it from the operation of the will and has the effect of revoking the will to the extent of the property conveyed." It is not clear that this passage goes further than that cited from Jarman, and that the involuntary conveyance referred to is meant to comprise anything more than a conveyance directed by a Court. He refers also to a note at page 1212 where reference is made to Long vs. Aldred 3 Addams. Eccl.,48, in the following terms: "Where a woman executed a will and then married and subsequently became a widow, her will, which was revoked by the marriage, was not revived by the death of her husband." The passage is of no use to the appellant, for it only lays down that, when a will is revoked by an event which has that effect in law, a subsequent event which makes the testator again competent to make a will will not revive it. The revocation having taken effect, the will ceases to have any validity and the testator if he desires to dispose of his property by testament must execute a fresh will. The same rule applies where the revocation of a will is made by means of an instrument executed for the purpose. If such an instrument is itself subsequently revoked the revoked will would not thereby revive. Apart from the fact that the earlier English authorities do not seem to go to the extent contended for by Mr. Seshagiri Ayyar we do not think that the rule in question should be applied in this country on the ground that it embodies a general principle of law. In the first place, we cannot accept the argument that the sound rule of law with regard to wills is embodied in the earlier rule and not in the Wills Act. It is admitted that according to the latter, a will is to be understood as speaking at the death of the testator and its validity is to be determined accordingly. 1 Vict., e. 26, Section 23, says: "No conveyance or other act made or done subsequently to the execution of a will of or relating to any Real or Personal Estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such Real or Personal Estate as the testator shall have power to dispose of by will at the time of his death." The same principle applies to cases of conversion by operation of law, as, by an Act of Parliament or by an order for sale pronounced by a Court. The reason of the earlier rule was that a will was regarded as a conveyance speaking at the time of its execution but the disposition made thereby to come into effect after the death of the testator. See William's Real Property, page 242, 19th Edition. It was therefore held that, if the property ceased to belong to the testator subsequent to the will, it ceased in law to have any operation. The principle applicable' in this country is that adopted in the English Wills Act that a will has the same effect as if it were executed at the time of the testator's death [See section 77 of the Succession Act which lays down the rule as to the interpretation of wills.]. Moreover, as pointed out in Subba Reddi vs. Doraisami Bathen I.L.R. (1907) Mad. 369, the statutory law of wills here has not adopted the principle that a will should be deemed to be revoked in consequence of a change in the circumstances of the testator or a change with respect to his right to the property disposed of by the will (see section 57 of the Indian Succession Act). It cannot be doubted that property which a person does not possess at the time of the will may be validly bequeathed. There is no reason why the same principle should not apply with respect to property which he owns absolutely both at the time of the bequest; and at the time of his death, but with respect to which he loses the right of testamentary disposition during some time between the two dates. In the present case the change resulting by the birth of the son consisted in the conversion of the testator's absolute right in the property disposed of to the fluctuating right of a Hindu co-parcener in joint family property, But the fluctuation eventually resulted in his acquiring absolute estate again before his death. We see no reason for holding that this intermediate alteration in the character of his right in the property should render invalid a disposition which he could validly make, both when he executed the will and when the will came into operation in law. Section 4 of the Probate and Administration Act vests the property of a testator in his executor excepting that which would have passed by survivorship to some other person. Section 4 of the Probate and Administration Act vests the property of a testator in his executor excepting that which would have passed by survivorship to some other person. The effect of the section is merely to prevent the vesting of the property, which the testator had no right to bequeath at the time of his death. Survivorship has the effect of rendering a will invalid only with respect to property which the testator could not dispose of at the time of his death. All other dispositions made by him are valid. Mr. Seshagiri Ayyar was not able to cite any decided case in respect of his contention. On the other hand, there is a dictum of the Allahabad High Court against him [Shib Sabitri Prasad vs. The Collector of Meerut I.L.R. (1907) All. 82.] We hold that the will was not revoked by the subsequent birth of a son to the testator. 8. Jaladi Suguna (Deceased) through Lrs. vs. Satya Sai Central Trust and Ors., (2008) 8 SCC 521 , wherein it has been observed as under:- 12. 'Legal representative' according to its definition in Section 2(11) of CPC, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. Thus a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative. 16. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record. 17. The third respondent, who is the husband of the deceased, wants to come on record in his capacity as a sole legal heir of the deceased, and support the case of the Trust that there was a valid gift by the deceased in its favour. On the other hand, the appellants want to come on record as testamentary legatees in whose favour the suit property was bequeathed by will, and represent the estate of the deceased Suguna as intermeddlers. They want to continue the contest to the appeal. When Suguna - the first respondent in the appeal before the High Court died, the proper course for the High Court, was first to decide as to who were her legal representatives. For this purpose the High Court could, as in fact it did, refer the question to a Subordinate Court under the proviso to Rule 5 of Order 22 CPC, to secure findings. After getting the findings, it ought to have decided that question, and permitted the person/s who are held to be the legal representative/s to come on record. Only then there would be representation of the estate of the deceased respondent in the appeal. The appeal could be heard on merits only after the legal representatives of the deceased first respondent were brought on record. Only then there would be representation of the estate of the deceased respondent in the appeal. The appeal could be heard on merits only after the legal representatives of the deceased first respondent were brought on record. But in this case, on the dates when the appeal was heard and disposed of, the first respondent therein was dead, and though rival claimants to her estate had put forth their claim to represent her estate, the dispute as to who should be the legal representative was left undecided, and as a result the estate of the deceased had remained unrepresented. The third respondent was added as the legal representative of the deceased first respondent only after the final judgment was rendered allowing the appeal. That amounts to the appeal being heard against a dead person. That is clearly impermissible in law. We, therefore, hold that the entire judgment is a nullity and inoperative. 18. We may look at it from yet another angle. The relief sought by Suguna in the suit was one in regard to which the right to sue would have survived to her legal representatives if she had died during the pendency of the suit. She successfully prosecuted the suit and obtained the decree declaring the deed to be void. The said decree would continue to be in force unless it is set aside in a manner known to law. It could be set aside in an appeal filed by the aggrieved party, but only after hearing the plaintiff who had secured the decree. Pronouncement of judgment in a case, can be only after the case has been heard. (Vide Section 33, Order 20, Rule 1 and Order 41, Rule 30 of CPC). When the respondent-plaintiff died and his/her estate remains unrepresented, it cannot be said that the appeal was 'heard'. When the respondent-plaintiff died, the legal representatives who succeeded to her estate will have to be brought on record and they should be heard in their capacity as persons representing the estate of deceased plaintiff. If they are not heard, there is no 'hearing' of the appeal in the eye of law. Consequently the judgment of the trial court could not be disturbed or set aside by the appellate court. Be that as it may. 19. If they are not heard, there is no 'hearing' of the appeal in the eye of law. Consequently the judgment of the trial court could not be disturbed or set aside by the appellate court. Be that as it may. 19. We, accordingly, allow this appeal and set aside the judgment dated 19.9.2006, restore the appeal to the file of the High Court, with the following directions: (i) The High Court shall first decide the dispute between the husband of the deceased on the one hand, and her nieces and nephews on the other, after considering the evidence and findings dated 28.11.2005 recorded by the Trial Court and hearing the rival claimants. (ii) After such determination, the person/s determined to be the person/s entitled to represent the estate of the deceased shall be brought on record as the legal representatives of the deceased. (iii) Thereafter, the appeal shall be heard on merits and disposed of in accordance with law. 9. Ramchandra Dagdu Sonavane (Dead) vs. Vithu Hira Mahar (Dead) by LRs. And Ors., (2009) 10 SCC 273 , wherein it has been observed as under:- Question regarding adoption: 41. As regards whether there is valid adoption or not, that question pertains to the status and legal character of an individual, which falls within the purview of section 34 of the Specific Relief Act, 1963, and a suit for declaration before a civil court is maintainable. Therefore, the question whether a particular person has been given in adoption or not is different from whether a person has hereditary interest or rights in respect of a watan property. If this distinction is drawn, there is no exclusion of civil courts jurisdiction under the Act. When a person claims on the basis of adoption, such an adoption cannot be decided by the Collector as the same involves legal status/character of a person which can only be decided by the civil court. Whether Vithu is an adopted son or not is concluded and decided in O.S. No. 104 of 1953. A specific issue had been framed and a finding was recorded though it was a suit for injunction and the findings on this issue has been confirmed by the Appellate Court and by the High Court in Regular Second Appeal. 49. Whether Vithu is an adopted son or not is concluded and decided in O.S. No. 104 of 1953. A specific issue had been framed and a finding was recorded though it was a suit for injunction and the findings on this issue has been confirmed by the Appellate Court and by the High Court in Regular Second Appeal. 49. In the subsequent proceedings before the Sub-Divisional Officer, the issue was whether Vithu was the adopted son of deceased Watandar and, therefore, having hereditary interest in any inferior village watan under Watan Abolition Act, 1958. To decide this issue, the Sub-Divisional Officer firstly has to decide the issue, whether Vithu is the adopted son of deceased Watandar. This issue is one which does not fall within the jurisdiction of the revenue court but falls within the exclusive jurisdiction of the civil court. Since the issue of adoption was already decided between the same parties by a competent civil court, the Sub-Divisional Officer cannot decide that issue and without giving any decision on that issue could not have allowed the claim of the respondent Vithu. Therefore, in our opinion, the Principles of Res-judicata would apply to the proceedings before the Sub-Divisional Officer and contended that view taken by the learned Single Judge more particularly in para 40 to 43 reads as under:- 40. Thus, in the light of the above judgments of the Hon'ble Supreme Court, the submission of the learned counsel for the respondent that section 14 of the Hindu Succession Act, 1956 has no application in view of the fact that Smt.Nand Kanwari Bai wife of Madho Lal was not in actual physical possession of the property cannot be accepted. In view of the pronouncements of the Hon'ble Supreme Court which have been referred to above, it is clear that the right of the widow to maintenance creates a charge on the property in the hands of other coparceners or in the hands of the others who succeed to the said property and that her right is not defeated on account of any transfer or devolution in the hands of the person who succeeds to the said property. Further on account of her aforesaid legal right, she remains entitled to the legal possession and enjoyment of the property and based on the said right, her limited estate ripens into an absolute estate by virtue of section 14 of the Hindu Succession Act, 1956. 41. In the instant case, it had already been decreed in favour of Smt.Nand Kanwari Bai that property was joint Hindu Family Property in the hands of Mukat Lal, the defendant and that Smt.Nand Kanwari Bai, the mother of the plaintiff/petitioner had right to maintenance in the same. The property though being possessed by Mukat Lal, Mukat Lal carried with it the liability of the defendant since Kanwar Lal had to maintain Smt.Nand Kanwar Bai out of the property left behind by her deceased husband Madho Lal, brother of Kanwar Lal. The aforesaid right on coming into force of the Hindu Succession Act, 1956 ripened into an absolute estate and Smt.Nand Kanwari Bai, therefore, became entitle to the share of Madho Lal in the property left behind in the hands of the defendant Mukat Lal which came to be devolved upon him by virtue of the Will of Kanwar Lal. Thus, the judgments of the learned Revenue Appellate Authority and the learned Board of Revenue holding that the property in the hands of the defendant Mukat Lal was no longer a Joint Hindu Family property is liable to be set aside. 42. In view of the fact that it has been held that the plaintiff Kailash Chand was adopted by Smt.Nand Kanwari Bai, he consequently became the adopted son of Madho Lal and Smt.Nand Kanwari Bai and, therefore, acquired an interest in the property left behind by Madho Lal to the extent of one half and other half being in the share of Mangi Lal and his son Kanwar Lal. It has been held by their Lordships of the Hon'ble Supreme Court in the case of Vasant and Another vs. Dattu and Others reported in AIR 1987 SC 398 that while dealing with the case of adoption made by the widow of a person who died prior to the coming into force of the Hindu Succession Act, 1956 in respect of the provisions contained in the section 12 of the Hindu Adoptions and Maintenance Act, 1956 as follows :- "4. We are concerned with proviso (c) to Section 12. We are concerned with proviso (c) to Section 12. The introduction of a member into a joint family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of the joint family, but it certainly does not involve any question of divesting any person of any estate vested in him. The joint family continues to hold the estate, but, with more members than before. There is no fresh vesting or divesting of the estate in anyone. 5. The learned counsel for the appellants urged that on the death of a member of a joint family the property must be considered to have vested in the remaining members by survivorship. It is not possible to agree with this argument. The property, no doubt passes by survivorship, but there is no question of any vesting or divesting in the sense contemplated by Section 12 of the Act. To interpret Section 12 to include cases of devolution by survivorship on the death of a member of the joint family would be to deny any practical effect to the adoption made by the widow of a member of the joint family. We do not think that such a result was in the contemplation of Parliament at all." 43. In the light of the above findings arrived at by the learned Revenue Appellate Authority and the learned Board of Revenue to the effect that since Madho Lal had died prior to the coming into force of the Act of 1956, the property became vested in the sole coparcener Kanwar Lal and since the adoption has taken place in the year 1959 after coming into force of the Act of 1956, Kailash Chand, the petitioner would not be entitled to any share in the property as he was adopted by the widow of Madho Lal, after coming into force of the Act of 1956 cannot be sustained in law. As has been held by their Lordships of the Hon'ble Supreme Court in the above said case of Vasant that no question of any vesting or divesting as contemplated by the section 12 of the Hindu Adoptions and Maintenance Act, 1956 can be said to have taken place and, therefore, the right of Kailash hand, the plaintiff/petitioner herein which was denied by the learned Revenue Appellate Authority and the learned Board of Revenue in the light of the above judgment is erroneous. The said finding by the learned Revenue Appellate Authority and the learned Board of Revenue are, therefore, liable to be quashed and are set aside." 15. We have heard Mr. Maloo as well as Mr. Garg at length. 16. Before proceedings it will not be out of place to mention that the main property was divulged on the death of Kanwar Lal in 1954 was widow Nand Kanwari Bai and the right of maintenance against the property which was an actual property. In our considered opinion right of withdraw and transfer by will was in existence while existing principle of law. Since it was not self-acquired property of Kanwar Lal. In that view of the matter, the divulgement of property in the name of Mukut Lal as observed by the learned Single Judge in paras 41 to 43 is correct and same is quoted hereinabove. 17. The right of widow was in existence. In view of the matter, the transfer is not valid in the eye of law. The view taken by the first authority where the suit was decreed and the property of res judicata which sought to be will not come into picture. In view of the fact that the adoption is done subsequently on 12.06.1959. 18. In that view of the matter, we are of the considered opinion that the view taken by the learned first authority and the learned Single Judge is required to be accepted and the same is accepted. Even otherwise this petition is against Article 227 of the Constitution of India. We have limited scope on the fact finding authority and view taken by the learned Single Judge is accepted, in our considered opinion, no interference is called for and the appeal deserves to be dismissed. 19. The appeal stands dismissed.