Law Web: Whether Child Adopted By A Widow is Entitled To Inherit Her Deceased Husband's Property?

There is decision of this Court on the subject and the said issue is covered by the decision in case of Banabai and others Vs. Wasudeo, reported in AIR 1979 Bom. 881 (At Nagpur). When there is direct Judgment of this Court, it needs to be followed in the said decision. In para No. 18, it is held as under :-

18. Thus it would be seen that the adoption takes effect only

from the date of adoption and not prior to the adoption. Under

the former law the adoption had the effect of relating the

adoption back to the date of death of the father. The adopted

son was deemed to be in existence at the time when the father

died. That fiction of relation back as a result of the adoption has

been done away with by S. 12. Further the provisions also limit

the rights of the provisions also limit the rights of the adopted

son in the new family and proviso (c) which is material and

which deals with the rights in the property as well the right of

management to which Mr Kherdekar wants me to extend the

principle as enunciated by the Supreme Court is that “the

adopted child shall not divest any person of any estate which

vested in him or her before the adoption.” In other words,

though the adopted son from the date of adoption becomes a

member of the adoptive family and acquires all the rights and

status which that person would acquire in the adopting family

with regard to the property, his right was controlled and is

subject to his incapacity to divest any person of an estate

which has already vested in him. Though, therefore, an

adopted son may have rights in future in the property which the

family may acquire after his adoption, with regard to the

property which has vested in any particular person before his

adoption, the adoption does not vest in him any rights with

regard to that property. The plain terms of S. 12 and in

particular proviso (c) clearly make it quite clear that the

adopted son, short of acquiring the right of management and

right to the property of his adoptive parents acquires all the

other rights and status of a natural born son in the family.

26. In case of Banabai (supra), the principle of relation back as a

result of the adoption has been done away with by section 12 of the Hindu Adoptions and Maintenance Act, 1956. Under the old Hindu law the adoption had the effect of relating the adoption back to the date of death of the father. The adopted son was deemed to be in existence at the time when the father died. That fiction of relation back as a result of adoption is no more available in view of Section 12 of said Act. Having regard to this

legal position, I am unable to accept the argument advanced by Mr Pakashsing Patil, learned counsel for the appellants. After coming into force of Hindu Adoptions and Maintenance Act, 1956, the child adopted by the widow of the co-parcener, does not get the status of the child of deceased co-parcener from the date of death of co-parcener. As such, adopted son/original defendant No.1 cannot claim share in the suit property, by stepping into the shoes of his late father who died long before in the year 1965. Therefore, I have recorded my finding against question No.1 in the negative.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 515 OF 2021

Rajesh S/o. Panditrao Pawar, Vs Parwatibai W/o. Bhimrao Bende

CORAM : SHRIKANT D. KULKARNI, J.

PRONOUNCED ON : 07.04.2022

1. Heard finally at admission stage with consent of both the sides.

2. Unsuccessful original defendant Nos. 2 to 4 have preferred this

second appeal against impugned Judgment and decree passed by the

District Court in Regular Civil Appeal No. 149/2014 arising out of

Judgment and decree passed in Regular Civil Suit No. 192/2009 by the

learned 4th Jt. Civil Judge Junior Division, Parbhani.

3. It is necessary to have a glance on few facts in order to throw

light on the dispute. The appellants have purchased the suit property from

respondent No. 2/adopted son of Kausalyabai (original plaintiff No.1 since

deceased) vide three registered sale deeds dated 02.06.1995. The

adoptive mother ( Kausalyabai) and sister Parwatibai had filed a suit on

17.08.2019 for declaration of ownership, recovery of possession with

further declaration that sale deeds executed by defendant No.1 (adopted

son) in favour of the appellants are not binding their shares.

4. During pendency of the suit, original plaintiff No. 1/ Kausalyabai

died and suit was contested by plaintiff No.2/Parwatibai. The trial court

was pleased to decree the suit partly as under :-

01. Suit of the plaintiff is partly decreed as follows.

02. Plaintiff No. 2 is declared as owner of suit property

to the extent of her half share. Defendant No.1 is

declared as owner of suit property to the extent of

his remaining half share.

03. Sale Deed bearing No. 1418/1995, 1419/1995,

1420/1995 all dated 02.06.1995 executed by

defendant No.1 in favour of defendants No. 2 to 4 in

respect of suit property Gut No. 95 ad measuring

total area 8 Hector 95 Are situated at village

Pimpalgaon Tong, Tq. & Dist. Parbhani (more

particular described in claim clause of plaint) is

declared as null and void to the extent of half share

of plaintiff No. 2 and not binding on the plaintiff No. 2

Parwatabai.

04. Plaintiff No. 2 is entitled to recover her half share in

the suit property.

05. Writ of precept be send to District Collector,

Parbhani for its compliance according to law.

06. Parties to bear their own costs.

07. Decree be drawn up accordingly.

5. Feeling aggrieved by the impugned Judgment and decree

passed by the learned 4th Jt. Civil Judge Junior Division, Parbhani, original

plaintiff No. 2/Parvatibai Bhimrao Bende has filed Regular Civil Appeal No.

149/2014. The said appeal came to be allowed as under :-

1) The appeal is allowed with costs.

2) The cross-objection filed by defendants/respondents

is dismissed.

3) The judgment and decree passed by 4th Jt. Civil

Judge Junior Division, Parbhani in R.C.S. No.

192/2009, dt. 30/09/2014 is hereby set aside.

4) The suit is decreed. The appellant is declared as

owner of suit property and entitled for recovery of

suit property from defendant Nos. 2 to 4. Defendant

Nos. 2 to 4 shall evict within one year.

5) Sale deeds bearing registration No. 1418/1995 to

1420/1995 dt.02/06/1995 Exh. 30 to Exh. 32 are

illegal and not binding on the plaintiff.

6) R & P be send to trial Court.

7) Decree be drawn up accordingly.

6. The execution proceedings came to be filed at the hands of

original plaintiff No. 2/Parvatibai in order to execute the Judgment and

decree passed in Regular Civil Appeal No. 149/2014.

7. Feeling aggrieved by the impugned Judgment and decree

passed in Regular Civil Appeal No. 149/2014, the appellants/original

defendant Nos. 2 to 4 have preferred the second appeal by raising precise

substantial questions of law.

8. Heard Mr Prakashsing B. Patil, learned counsel for the

appellants and Mr Shahaji B. Ghatol Patil, learned counsel for respondent

No.1/original plaintiff No.2.

9. It is revealed during the course of argument and while perusing

the impugned Judgment and decree passed by the appellate court as well

as the trial court that both the Courts below have committed an error in the

eye of law while determining the shares. So far as the question of adoption

of defendant No. 1/Shivaji S/o Wamanrao alleged adopted son of

Sopanrao Tong is concerned, both the Courts below have accepted and

held that defendant No.1 is adoptive son of late plaintiff No. 1/Kausalyabai.

It is therefore, clear that both the Courts below have recorded the

concurrent findings in respect of adoption of defendant No.1. There is no

need to go through that aspect in view of concurrent findings recorded by

the Courts below.

10. Following are the substantial questions of law framed in this

second appeal after hearing learned counsel for both the sides.

(i) Whether the principle of relation back is applicable to

the present case in view of section 12 of the Hindu Adoptions

and Maintenance Act, 1956 ?

(ii) What would be the share of original plaintiff No.2-

Parwatibai/daughter in the suit property ?

(iii) Whether the sale deeds executed by original defendant No.1/

Shivajirao Wamanrao adopted son of plaintiff No.1 are

binding upon the original plaintiff No. 2 ? If yes, to what

extent and share ?

(iv) Whether the Courts below if any committed an error in

determining the share of the parties in view section 8 and 15 of

the Hindu Succession Act, 1956 ?

(v) Whether the intervention is necessary ?

11. The claim in the original suit put forth by the plaintiffs was for

declaration of ownership and recovery of possession of land bearing Gut

No. 95 admeasuring 8 Hectares 59 R situated at village Pimpalgaon Tong.

12. Following 2.80R land has been purchased by the

appellants/defendant Nos. 2 to 4 by three different sale deeds from

original defendant No.1/Shivaji.

Date of sale deeds Name of defendant Gut No.

02.06.1995 Rajesh S/o Panditrao Pawar,

Deff. No. 2

.80 R

02.06.1995 Dnyanoba S/o Marotrao Pote,

Deff. No. 3

1.20 R

02.06.1995 Godavaribai W/o. Dnyanoba

Pote, Deff.No.4

80 R

Total land 2.80 R

13. The following family tree of the plaintiffs is important to decide

the lis.

Rangnathrao (Father-in-law)

Wamanrao Sopanrao

(Died - 1965)

(Husband of late plaintiff No.1)

Shivaji (Defendant No.1 - adopted son)

Kausalyabai

(Plaintif No.1- wife died

during pendency of suit)

Parwatibai

(Plaintif No.2-

daughter)

14. Mr Prakashsing B. Patil, learned counsel for the appellants

vehemently argued that though defendant No.1/ Shivaji was adopted in

the year 1973, for all the purposes, he shall be deemed to be a child of his

adoptive parents. He submitted that all the ties of the child in the natural

family will stand terminated from the date of adoption, except the ties of

blood for the purpose of marriage. He further submitted that all the ties of

child would come into existence in the adoptive family from the date of

adoption. The adopted child is deemed to be the child of adopter for all the

purposes and his position for all intents and purposes is that of a natural

born son. He has the same right, privilege and same obligation in the

adoptive family.

15. Mr Prakashsing Patil, learned counsel for the appellants has

placed his reliance in case of Hiralal Vs. Board of Revenue reported in

AIR(RAJ)-2001-2001-0-318. By placing reliance on the said decision,

Mr Prakashsing Patil, learned counsel for the appellants submitted that the

moment, the widow of a co-parcener adopts a son, the adopted son

becomes a co-parcener with surviving co-parceners of the adoptive father

and consequently, the same interest which his adoptive father would have

in the property had he been living. The child adopted by the widow of the

co-parcener became the child of deceased co-parcener from the date of

death of the co-parcener. He therefore, vehemently submitted that

adopted son gets equal share like her adopted mother.

16. Per contra, Mr Shahaji B. Ghatol Patil, learned counsel for

respondent No.1/original plaintiff submitted that even if for the sake of

argument accepted that Shivaji/original defendant is adopted son of

Kausalyabai/original plaintiff No.1. He may not get equal share. He

submitted that husband of plaintiff No.1 (Kausalyabai) namely, Sopanrao

died in the year 1965 left behind plaintiff No.1 as widow and plaintiff No. 2

as daughter. Both of them got one half share each in the suit property left

behind by Sopanrao. He submitted that Shivaji was allegedly adopted by

Kausalyabai in the year 1973. He submitted that the succession opens in

the year 1965 soon after death of Sopanrao who happened to be the

father of plaintiff No.2 and husband of plaintiff No.1. The adopted son does

not get any share even after his so-called adoption in the year 1973. At the

most, he may get share after death of Kausalyabai/original plaintiff No.1 in

her one half share. In that case, Parwatibai being daughter and Shivaji

being adopted son would get equal share in the share of Kausalyabai. He

submitted that theory of relation back is not applicable to this case since so-called adoption has taken place in the year 1973.

17. Mr Shahaji B. Ghatol Patil, learned counsel for the original

plaintiff submitted that, the sale deeds executed by Shivaji (adopted son)

are not binding on the plaintiff and submitted that those sale deeds need

to be declared not binding on plaintiff.

18. I have considered the submissions of learned counsel for both

the sides. I have also carefully gone through the Judgment and decree

passed by the trial court in Regular Civil Suit No.192/2009 and the

Judgment and decree passed by the First Appellate Court/District Court in

Regular Civil Appeal No. 149/2014.

19. It is undisputed position that the husband of original plaintiff

No.1/Sopanrao died in the year 1965 leaving behind Kausalyabai as a

widow/plaintiff No.1 and Parwatibai being a daughter (plaintiff No.2). As

per the findings recorded by both the Courts below, Shivaji was adopted

by original plaintiff No.1 in the year 1973 after the Hindu Adoptions and

Maintenance Act, 1956 came into force. In that background, I have to see

the provisions of the said Act.

20. Section 8 of the said Act provides that a female Hindu, who is of

sound mind and is not a minor, has the capacity to take a son or daughter

in adoption. If she has a husband living, the consent of her husband is

necessary for such adoption.

21. Having regard to section 8 of the said Act, plaintiff

No.1/Kausalyabai had legal right to adopt a son or daughter and

accordingly, she has adopted son Shivaji in the year 1973 by way of

adoption deed. Her husband was not alive at the time of adoption. Hence,

question of consent does not arise.

22. The question comes about effect of adoption. Section 12 of the

Hindu Adoptions and Maintenance Act, 1956 provides for the effect of

adoption, which reads thus :

12. Effects 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 the

adoption and from such date all 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;

estate which vested in him or her before the adoption.

23. It specifies that an adopted child will sever all ties with the

family of his or her birth on and from the date of adoption. The second

proviso of Section 12 of the Hindu Adoptions and Maintenance Act, 1956

stipulates that any property which has vested in the adopted child before

the adoption shall continue to vest with him subject to the obligations, if

any. The second proviso allows the property vested in the adopted child

before the adoption to continue to vest in the adopted child subject to the

obligations, if any, attaching to the ownership of the property including the

obligation to maintain relatives in the family on his or her birth.

24. The question is whether principle of relation back is applicable

to the present case in view of section 12 of the Hindu Adoptions and

Maintenance Act, 1956.

25. Mr Prakashsing Patil, learned counsel for the appellants has

placed reliance on the citation in case of Hiralal Vs. Board of Revenue (supra). There is decision of this Court on the subject and the said issue is covered by the decision in case of Banabai and others Vs. Wasudeo, reported in AIR 1979 Bom. 881 (At Nagpur). When there is direct Judgment of this Court, it needs to be followed in the said decision. In para No. 18, it is held as under :-