Friday, 7 February 2020

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.

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
1
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
3
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)
4
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
(c) The adoptive father cannot give his adopted son in
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
7
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;.
8
(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
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.
16. It may be noticed that the three sons and Kalindi are born to
Laxman and his wife Padmavati. They are agnates and related by
full blood in terms of Section 3(a) and 3(e) of the Act. As per the
Schedule to the Act, the son and the daughter of a deceased Hindu
male are class I heirs. Some of the relevant provisions of the Act
read as under:
“3. Definitions and interpretation.- (1) In this Act,
unless the context otherwise requires,—
(a) “agnate”—one person is said to be an
“agnate” of another if the two are related by blood or
adoption wholly through males;
xx xx xx
(e) “full blood”, “half blood” and “uterine blood”—
(i) two persons are said to be related to each other by
full blood when they are descended from a common
ancestor by the same wife, and by half blood when they
are descended from a common ancestor but; by
different wives;
(ii) two persons are said to be related to each other by
uterine blood when they are descended from a common
ancestress but by different husbands;
(f) “heir” means any person, male or female, who is
entitled to succeed to the property of an intestate
under this Act;
xx xx xx
(j) “related” means related by legitimate kinship:
Provided that illegitimate children shall be deemed to
be related to their mothers and to one another, and
10
their legitimate descendants shall be deemed to be
related to them and to one another; and any word
expressing relationship or denoting a relative shall be
construed accordingly.
xx xx xx
8. General rules of succession in the case of males.—
The property of a male Hindu dying intestate shall
devolve according to the provisions of this Chapter—
(a) firstly, upon the heirs, being the relatives specified
in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the
heirs, being the relatives specified in class II of the
Schedule;
(c) xxxxx”
17. The manner of inheritance under the Act, in the cases of adoption
of married persons before the enactment of the Act, has come up
for consideration before the Learned Single Bench of Bombay High
Court in an unreported Judgment (Dundyappa Laxman Karol v.
Neelavva Chandrappa Jarali)6. In the said case, the plaintiffs
were children of Shivappa, from his wife Gouravva, born before the
adoption of Shivappa. The claim was in the estate of Shivappa, who
died on 17th March 1957 that is after the commencement of the
Act. Gouravva also died on 6th August 1957. The stand of the
defendant was that the plaintiffs being children of Shivappa before
he went in adoption were not entitled to inherit the property of
Gouravva, which she inherited from her husband. The learned
Single Bench noticed that the adoption of Shivappa took place long
before the enactment of Hindu Adoptions and Maintenance Act,
6 Second Appeal No. 556 of 1964 decided by Bombay High Court on 26th November, 1971.

1956 and thus adoption would be governed by Hindu law as it
existed prior to enactment. The Court held that an adopted child is
to be deemed as a child of his or her adoptive father or mother for
all purposes with effect from the date of the adoption. One
important result of the severance of the ties in the family of birth
would be that the adoptee can no longer claim any right to succeed
to the property of his natural father or mother or any of the
relations in the family of birth. The question considered was
whether the children born prior to date of adoption of Shivappa
would be entitled to inherit the property on the death of Gouravva
which took place after coming into force of the Act. It was held that
the property inherited by a Hindu female howsoever acquired
would be her absolute property. The Court held as under:
“…Broadly speaking, the property possessed by a Hindu
female after the coming into force of the said Act would
no longer be her limited estate but will be regarded as
her absolute property and the intestate succession to
such property would be governed by sections 15 and 16
of the Hindu Succession Act.
xx xx xx
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.”
18. It was found that the Privy Council decision reported as Tewari
Raghuraj Chandra & Ors. v. Rani Subhadra Kunwar & Ors.7
does not afford any guidance to the question as to whether the
legitimate children born prior to adoption would cease to be
included in the category of her children.
19. The Division Bench of Bombay High Court in Kausalyabai W/o
Jagdeorao v. Devkabai W/o Jaiwantrao Deshmukh8 while
examining the right of a daughter born to an adoptee before his
adoption, on the question as to whether she is entitled to inherit
the estate of her father after the commencement of the Act, held
as under:
“33. Mr. Paranjpe fairly stated that he could not find
any authority taking the view that such a daughter
would cease to be the daughter of her father because of
his adoption. As far as we are aware, there is no text of
any Dharmashashtra, which lays down that a daughter
ceases to be a daughter the moment her father is given
in adoption.
34. The blood relation of the daughter and the father
continued till the Hindu Succession Act came into force;
and hence we are of the view that Mr. Deo's contention
that the daughter, the defendant, was entitled to ⅝th
share in the suit lands, having regard to the provisions
contained in ss. 8 and 15(b) read with s. 10, R. 1, must
be upheld. The decree must, therefore, follow in favour
of the plaintiff; only to the extent of ⅜th share in the
suit lands.”
20. Similar view has been taken by the Division Bench of the Karnataka
High Court in a judgment reported as Smt. Neelawwa v. Smt.
7 AIR 1928 PC 87
8 (1978) 16 Mh.L.J. 357
13
Shivawwa9 wherein, the daughter of deceased Mallappa claimed
half share in the suit property and the defendant claimed her right
as a widow, being the step mother of the plaintiff. However, the
defendant alleged that the plaintiff was born prior to the adoption.
Mallappa was given in adoption in the year 1939 whereas the
plaintiff was born in the year 1937. In this case, the Court held as
under:
“9……………………..In our view it means and includes
moveable and immoveable property, whether separate
or self acquired or an interest in a Mitakshara
Coparcenary property provided he has left him
surviving any of the female heir or a daughter's son
mentioned in Class I of the Schedule to the Act. The fact
that the deceased Mallappa had come to own and
possess the suit land by reason of his adoption did not
make any difference for the purpose of Section 8 of the
Act as it was the property of Mallappa at the time of his
death. Now we shall see whether the plaintiff cannot be
considered to be an heir of her father merely because
she was born before he was given in adoption. The
expressions ‘heir’ and ‘related’ are also defined in
Section 3(f) and (j) respectively of the Act. “Heir”
means any person male or female who is entitled to
succeed to the property of an intestate under the Act.
“Related” means related by legitimate kinship. The
proviso to this definition is not relevant for our purpose,
because it is not in dispute that the plaintiff is the
legitimate daughter of the deceased Mallappa born
through his 1st wife. It is true, adoption had the effect
of removing Mallappa from his natural family into the
adoptive family, but did not and could not severe the tie
of blood relationship between him and the plaintiff, or
for that matter the members of his natural family.
Therefore, the plaintiff irrespective of the adoption of
her father continued to be the daughter of Mallappa.
Thus the plaintiff being the daughter falls in the
category of heirs specified in Class I of the Schedule to
the Act……………”
9 AIR 1989 Karnataka 45

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.
22. In view thereof, we do not find any error in the judgment of the
learned Single Bench of the Bombay High Court. Accordingly, the
appeals are dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
FEBRUARY 07, 2020.

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