Law Web: Whether children born to adoptee father prior to his adoption can inherit his property in Adoptive family?

Since the succession has opened after the death of Laxman on 10th

January, 1987, therefore, succession has to be in accordance with

the Act and not as per Hindu law as all text, rule or interpretation

of Hindu law prior to commencement of the Act have ceased to

have any effect unless expressly provided for in the said Act. This

Court in a Judgment reported as Bhaiya Ramanuj Pratap Deo v.

Lalu Maheshanuj Pratap Deo(1981) 4 SCC 613 held that a bare perusal of

Section 4 would indicate that any custom or usage as part of Hindu

law in force will cease to have effect after the enforcement of

Hindu Succession Act with respect to any matter for which

provision is made in the Act.

14. The principle that the Act will be applicable on the date succession

opens is well settled. Reference may be made to a judgment reported

as Bhanwar Singh v. Puran & Ors. (2008) 3 SCC 87, wherein this Court

held that the Act brought about a sea of change in the matter of

inheritance and succession amongst Hindus. Section 4 of the Act

contains a non- obstante provision in terms whereof any text, rule

or interpretation of Hindu Law or any custom or usage as part of

that law in force immediately before the commencement of the

Act, ceased to have effect with respect to any matter for which

provision is made therein save as otherwise expressly provided.

15. Since there is no provision of denying the rights of succession to

the natural born son of an adoptee father, therefore, the succession

will be in terms of the provisions of the Act alone.

In my opinion, the fictional severance of ties with the

natural family would not mean that her children would

cease to be her children or can be considered to be not

her children by means of a legal fiction. If by virtue of

the definition in Section 3(j) even the illegitimate

children of a Hindu female have been given a right to

inherit her property, then it would not be permissible to

say that her legitimate children should be excluded

because they were born to her prior to the date of her

husband’s adoption. If, however, the Legislature had

specifically provided for this, then effect must be given

to such a provision and the wishes of the Legislature

respected. Where, however, there is no such clear

provision, such exclusion would appear to be against

the plain language of the enactment and it would not

be proper to come to any such conclusion.”

21. In view of the provisions of the Act which do not make any

distinction between the son born to a father prior or after adoption

of his father and that there is no provision which bars the natural

born son to inherit the property of his natural father, therefore, the

High Court has rightly upheld the rights of the sons of Laxman. In

fact, in the Full Bench judgment of Bombay High Court in Martand

Jiwajee Patil, it has been held that the natural father retains the

right to give in adoption his son born before his own adoption.

Therefore, if he has a right to give his son in adoption, such son has

a right to inherit property by virtue of being an agnate. There was

a full blood relationship between the three sons and the daughter

who was born after adoption. All the children of Laxman are

entitled to inherit the property of their natural father and mother in

accordance with the provisions of the Act as succession has opened

after the death of Laxman in 1987 and subsequently the mother in

the year 1992.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6642-6643 OF 2010

KALINDI DAMODAR GARDE Vs MANOHAR LAXMAN KULKARNI

HEMANT GUPTA, J.

Dated:FEBRUARY 07, 2020.
Citation: (2020) 4 SCC 335

1. The present appeals arise out of an order passed by the learned

Single Bench of the High Court of Judicature at Bombay on 11th

December, 2006 deciding writ petition disputing the orders passed

by the Revenue Authorities excluding the names of the sons of

Laxman natural born son of Pandurang, on the ground that they

have no right, title or interest in relation to suit property as they

were born prior to the date of adoption of Laxman. The first

appeal filed by the natural daughter of Laxman was dismissed

along with the writ petition holding that the sons born to Laxman

prior to adoption are the heirs of Laxman and are entitled to his

estate along with the daughter born to Laxman after his adoption.

2. The facts are that Laxman was given in adoption to Saraswati on

2nd November, 1935. Laxman had three sons Gangadhar aged 4

years 5 months; Dattatraya aged 2 years 5 months and Manohar

aged 9 months at the time of his adoption. After adoption, Laxman

and his wife Padmavati joined the family of Saraswati along with

their 3 sons. It was in the year 1938, daughter Kalindi was born to

Laxman and Padmavati. The natural father of Laxman, Pandurang

effected partition in respect of his joint family property on 30th

December, 1948 wherein Laxman was excluded from any share as

he had gone in adoption to Saraswati.

3. Laxman died on 10th January, 1987. Saraswati had predeceased

Laxman. After the death of Saraswati, Laxman inherited the

property of Saraswati which is the subject matter of the present

appeals. After the death of Laxman, his daughter Kalindi applied

for effecting the change in the village revenue record for inclusion

of her mother Padmavati and herself as owners. The mutation was

entered on 11th March, 1987. The matter was taken at various

stages thereafter. The revision filed by Manohar, son of Laxman,

was dismissed on 8th September, 1992. Aggrieved, Manohar had

filed the writ petition.

4. Padmavati, wife of Laxman, died on 10th October, 1992 leaving a

registered Will dated 21st May, 1987 in which she had bequeathed

her share to her 3 sons which were born prior to the date of

adoption. On 20th October, 1996, Gangadhar, one of the sons of

Laxman and Padmavati, died. Thereafter, Dattatraya, the second

son filed a suit for partition, separate possession and mesne profit

against forcible possession by Kalindi. This suit was decreed on 13th

November, 2004. The main contest of the parties was on the

question as to whether the three sons of Laxman born before

adoption in 1935, namely, Gangadhar, Dattatraya and Manohar are

entitled to inherit the property in adoptive family of Laxman after

his death.

5. In a suit by Kalindi, the daughter born to Laxman and Padmavati,

she had taken a plea that the sons born before adoption have no

right, title or interest in the properties left behind by Laxman and

she being a daughter born to Laxman after his adoption would

inherit the entire property along with Padmavati, her mother. Both

the matters were taken up for hearing together wherein the

learned Single Bench relying upon Section 8 of the Hindu

Succession Act, 19561 held that the son born before adoption is

entitled to succeed to the property of their father.

6. Before this Court, Mr. Venkataramani, learned senior counsel for

the appellants relied upon judgment of Division Bench of Bombay

High Court reported as Kalgavda Tavanappa Patil v. Somappa

Tamangavda Patil & Anr.2 wherein it has been held as under:

“The son, then, begotten by an adopted Hindu before

adoption has vested rights in the ancestral property of

the family of his birth. Rights of property once vested

cannot be taken away except in the mode or modes

prescribed by Hindu Law. They cease either by death,

sale, gift, degradation, disqualification or by adoption.

In the case of a son whose father has been given in

1 for short, ‘Act’

2 ILR (1909) 33 Bom 669

adoption after his birth, if none of these modes for the

extinction of his vested rights of property applies, there

must be the clear authority of some text for holding

that the rights in question are extinguished because the

father of the owner of those rights, having been given

in adoption, has his rights in his natural family

extinguished by the act of adoption.”

7. The argument is that the wife of an adoptee passes with her

husband to the adopted family but not the sons born to an adoptee

before his adoption. They continue to be members in the family in

which their father was naturally born. Mr. Venkataramani, learned

senior counsel for the appellants vehemently argued that the

codified Hindu Law has not provided that the children born to an

adoptee before adoption will be entitled to inherit the property in

the adopted family, therefore, keeping in view the interpretation of

Hindu Law as interpreted in Kalgavda Tavanappa Patil , the

children born before adoption will not pass with the adoptee in the

adopted family and are not entitled to the share in the estate of the

adopted family.

8. Learned senior counsel for the appellants relied upon the following

quote from the judgment in Kalgavda Tavanappa Patil:

“But it is argued that when a married man is given in

adoption, his wife passes with him into the adoptive

family—she, like him, acquires the new gotra; that what

applies to the wife of the man adopted must apply to

his son also, begotten before the adoption, because,

both according to the Smriti writers and their

commentators, a man's wife and sons go together. In

support of this argument reliance is placed on a text of

Narada cited by Vijnaneshvara in his chapter on

“Resumption of Gifts” in the Mitakshara (p.

225, Moghe's 3rd Ed).” (page 687)

xx xx xx

…………….But the text does not say that the son of that

man, born before his adoption, ceases to be his son and

loses the right to offer funeral oblations to his soul in

case of his death. For one thing, according to the

Hindu Shastras, “by no means can you make your

father cease to be” (Jaimini, Bibliotheoa Indica Series ,

Vol. I, p. 742). The mere fact that the father has gone

into another family by adoption and ceased to be of his

son's gotra or family cannot unmake what he naturally

is—the son's father. The gotras of the two may differ in

consequence of the adoption, but it is not always

necessary for funeral ceremonies that the person

performing them should be of the same gotra as the

deceased. A sister's son and a son-in-law can perform

those ceremonies and yet they are not of the

same gotra. So a son begotten before the adoption of

his father would be entitled to perform the latter's

funeral ceremonies. All the Smriti says is that such

ceremonies “shall be performed by a son.” It does not

make the obligation dependent upon the continuance of

the father in the same gotra as the son.” (Page 690)

9. The Full Bench of Bombay High Court in Martand Jiwajee Patil &

Anr. v. Narayan Krishna Gumast-Patil & Anr.3 referred to the

aforesaid judgment when considering a case as to whether the

adoptee has a right to give his son, born prior to his adoption, in

adoption. The Court held as under:

“In Raghuraj Chandra v. Subhadra Kunwar [(1928) L.R.

55 I.A. 139 at p. 148, S.C. 30 Bom. L.R. 829.] their

Lordships of the Privy Council after stating at p. 148

that though adoption is spoken of as “new birth” in

many cases, a term sanctioned by the theory of Hindu

law, yet “As has been more than once observed, the

expressions ‘civilly dead or as if he had never been born

in the family’ are not for all purposes correct or logically

3 AIR 1939 Bom 305

applicable, but they are complementary to the term

‘new birth’.” The inapplicability of the theory can be

illustrated by concrete instances:—

(a) The tie of blood between the adopted son and the

members of his natural family is not severed. He cannot

marry in his natural family within the prohibited

degrees, nor can he adopt from his natural family a boy

whom he could not have adopted if he had remained in

that family [Moottia Moodelly v. Uppon Vencata Charry].

[(1858) Mad. S.D. 117.]

xx xx xx

adoption (Sarkar's Hindu Law of Adoption, pages 281-

282).

xx xx xx

These instances show that an adopted son is not civilly

dead in his natural family nor reborn in his adoptive

family.

It is no doubt true that by giving away his son in

adoption the adopted father indirectly meddles with

the riktha or property of his natural family, since the

effect of that adoption will be to extinguish the son's

interest in that property. But thereby the father himself

gains no interest in the property. All that Manu's text

says is that he should not take for himself

the gotra and riktha of his natural family, and does not

prohibit him from doing any act which may affect the

property of his natural family. Thus, for instance, if he

has a brother in his natural family, he is not prohibited

from giving his son born after his own adoption, in

adoption to that brother, although thereby the different

interests in the property of his natural family are

affected.

xx xx xx

In the absence of any express text or judicial decision

depriving an adopted son of his right to give away in

adoption his son born before his adoption, we do not

think that any useful purpose will be served by

imposing such a restriction upon him. The modern trend

of decisions is to take a more liberal view and to

interpret the texts from a practical point of view as far

as possible. This is particularly noticeable in the

decisions of this Court on several questions of adoption,

such as the adoption of an only son, the adoption of a

married boy, the adoption of a boy whose mother the

adopting father could not have legally married, and the

adoption by a widow without the express consent of her

husband. We do not see why a similar liberal view

should not be taken in this case, having regard to the

interests of the boy to be given in adoption. With his

father actually living, it would be a hardship on the boy

to treat him as an orphan, merely because the father

has gone in adoption. Usually when the father is

adopted, his preborn sons are still minors, and in

practice they go with their father to live with him,

though legally they are held to have remained in the

natural family of their father. Though the father has

gone in adoption, the ties of affinity and love for his

preborn sons cannot be severed, and he is the proper

man to look after their education and welfare. If a

guardian is to be appointed for them, he will naturally

be consulted. Having their interest at heart, he is the

best person to decide whether one of them should be

given in adoption and what is conducive to their

benefit. By giving one of his sons in adoption he himself

gains no benefit, and he may be safely trusted to

exercise his discretion rightly for the good of his son,

though born before his own adoption.”

10. The Court held that the paternity of the father cannot be shaken off

even though he may leave the family, as, according to Hindu

Shastras, “By no means can you make your father cease to be,”.

The Court held as under:

“It may be that in ancient and primitive society the son

was regarded as hardly better than his father's slave,

and the prominent idea involved in an adoption was the

transfer of dominion or patria potestas to the person

adopting. But when the times changed and the status of

the son was raised, the father's power to give in

adoption came to be founded on a different conception.

The text of Vasishtha quoted in Dattaka Mimansa (sec.

V, pl. 31), which is said to afford the foundation of the

Hindu law of adoption, and which I have already

referred to, recognizes the power of the father and the

mother to “give or sell or abandon” their son as he is

“produced from their virile seed and uterine blood.”

This paternity of the father cannot be shaken off even

though he may leave the family, as, according to the

Hindu Shastras “By no means can you make your father

cease to be,” (Jaimini, Bibliotheca Indica Series, Volume

I, p. 742). The same thing is expressed by

Chandavarkar, J. in Kalgavda Tavanappa v. Somappa

Tamangavda as follows (p. 690):—

“The mere fact that the father has gone into

another family by adoption and eased to be of his

son's gotra or family cannot unmake what he

naturally is—the son's father.”

11. Though, the aforesaid judgment was in the context of the right of

an adoptee to give his son born prior to his adoption, but the fact

that the adoptee will remain the father of the son was recognised

way back in 1939. Thus, the Judgment in Kalgavda

Tavanappa Patil has not been accepted even under the Hindu

Law.

12. However, the situation has undergone a complete change with the

enactment of the Act. The said Act overrides all text, rule or

interpretation of Hindu law or any custom or usage as part of that

law in force immediately before the commencement of this Act.

Section 4 of the Act reads as under:

“4. Overriding effect of Act. - Save as otherwise

expressly provided in this Act,—

(a) any text rule or interpretation of Hindu law or any

custom or usage as part of that law in force

immediately before the commencement of this Act shall

cease to have effect with respect to any matter for

which provision is made in this Act;.

(b) any other law in force immediately before the

commencement of this Act shall cease to have effect in

so far as it is inconsistent with any of the provisions

contained in this Act.”

13. Since the succession has opened after the death of Laxman on 10th