What are the Effects of Adoption under Present Hindu Law?
He is divested of all the rights in the natural family, from the date of adoption. It is presumed as if he had been born in the adoptive family. Under the Smriti law the adoption had the following two purposes:—
(a) To perform the funeral, rites of the adoptive parents;
(b) To perpetuate the family lineage of the adoptive father.
Thus primary object of adoption was to extend spiritual benefit and the secondary object was to continue the lineage of the family. Now, under the present Act the object of adoption is irrelevant. The legal effect of adoption cannot be avoided simply on the fact that the adoption was made with intent to deprive the adopted child of the right to inherit property in the family of birth.
Section 12 of the Act lays down the consequences of the adoption as under:
“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 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”:
(a) The child cannot marry any person who 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 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.
This is one of the most important sections of the Act as it deals with the effect of adoption. The result of an adoption by either spouse is that the child adopted becomes the child of both the spouse according to the scheme and intent of the Act.
The adopted son occupies the position of a natural born son is the adoptive family for all purposes, except for the purpose of marriage and adoption and adoptive father becomes his father and adoptive mother becomes his mother. The present Act has abrogated the old rule of “relation back”.
The propriety of the rule was questioned in Sri Niwas v. Narain. The court held that after passing of the Act the relevancy of the above rule was rendered insignificant as the adopted son had hardly any necessity to retain relationship with deceased adopted father with a back date.
Thus the old rule of relation back was given a good bye to. As discussed above the rule of relations back placed the adopted son back from the date of the death of the husband of the adoptive mother/widow in the adoptive family, so as to create all the rights and privileges in his favour retrospectively.
As a preferential heir he could divest his adoptive mother of the property inherited by her from her deceased husband. Now under the Act the adopted child is deemed to have come into existence in the adoptive family from the date of his actual adoption not from a back date.
In the case of Veenabai v. Basudeo, the husband died after the passing of the Hindu Succession Act, 1956 leaving behind his widow. The widow after some time adopted a son and thereafter disposed of a part of the property inherited by her. The adopted son challenged the validity of the sale. The court held that the adoption will come into effect from the date of his actual adoption and he would come into existence from that date but not prior to it, as the rule of ‘Relation back’ had provided under the old law.
The adopted child could not divest his adoptive mother of any property which had vested in her prior to the act of his adoption as laid down in the proviso (c) to section 12. Hence the sale was held as valid. A child adopted by a widow will be regarded as a natural born child not only of the widow but also of her deceased husband.
Accordingly he becomes a member of the family of the deceased husband; he loses all his rights in the family of his birth and acquires all such rights in the adoptive family as a natural born child from the date of actual adoption.
The above important propositions were laid down by the Supreme Court in the case of Smvan Ram v. Kalawati. In this case ‘K’ died issuelss leaving behind his widow ‘W’, who inherited the estate of K as a limited owner. In 1954 she gifted away certain portion of the estate to her niece, ‘N’. The collecterals of deceased ‘K’ challenged the validity of the gift on the ground that ‘W’ was only a limited owner of the estate. She could alienate the property only for legal necessity or for the benefit to the estate.
Since none of the two existed the gift made by W was held to be invalid by the trial court. An appeal was pending in the higher court and during its pendency ‘W’ adopted the son of N in 1956. Thereafter W died the same year. The colleterals won the appeal and claimed the recovery of the property from N.
Since the property was not in possession of W, on the day of the enforcement of the Hindu Succession Act, 1956, it could not be the absolute property of her within the meaning of Section 14, the right of the colleterals continued to exist to challenge the validity of the gift.
Hence the adopted son could claim back the gifted property in the capacity of a heir of the deceased W, but according to the Supreme Court, the adopted son being like a natural born son of her deceased husband also could claim back the property as his heir from N, and the collaterals would not get the property. The adopted son after having been taken into adoption becomes a son not only of the widow but also of her deceased husband.
Some of the scholars of Hindu Law have criticised the judgment given in the above case as their contention is that the doctrine of relation back has been revived through it whereas the doctrine was completely abrogated by the Hindu Adoption and Maintenance Act, 1956. But this kind of inference from the judgment in the above case does not appear to be justified.
Under the old law whenever a reversioner challenged the alienation of a property made by the widow of the collateral and it was found that the alienation was invalid then the property came back from the possession of the alienee but it did not vest in the reversioner so that it cannot be said that the adopted son divested the reversioner of the property which came back from the possession of alienee.
In the above case the adopted son did not divest the reversioner of any property as the gifted property was in the possession of the alienee. Under the doctrine of relation back the adopted son was deemed to have come into existence in the adopted family right from the date of death of the husband of the widow and therefore he could challenge the transfer of any property inherited by the widow before the date of his actual adoption as the child is deemed to have been born in the adopted family back from the date of the death of her deceased husband.
In this way he could divest any person of any property which had vested in that person without lawful authority even if the property had vested in such person prior to his adoption. But in the above case the adopted son after the enforcement of the Hindu Adoption and Maintenance Act, 1956, could not challenge the validity of the transfer of the property which was effected before he was taken into adoption, this right was available only to the reversioners in the present case as the gift was made by the widow’ before the coming of the present Act into existence.
In no case the adopted son could challenge the validity of the gift and take back the possession of the property after the Hindu Adoption and Maintenance Act came into existence. Hence the inference that the doctrine of relation back has been revived will be an ill-founded conclusion.
In Puneetavalli v. Ramalingham, a Hindu widow inherited certain property from her deceased husband which she took at as limited owner. When Hindu Succession Act, 1956 came into force, she became absolute owner of the property inherited by her and thereafter she took a son in adoption. After adoption the widow gifted away a part of the property thus inherited by her in favour of her daughter Punectavalli. The adopted son challenged the validity of gift. During the course of the pendency of the case the widow died.
In appeal the court held that the widow was in the possession of the inherited property on the date of the commencement of the Hindu Succession Act, 1956 and therefore she became the absolute owner of the property. Before the adoption the property had vested in her and therefore even after adoption the property continued to vest in her which the adopted son could not divest. Thus the gift made by the widow in her daughter’s favour was held to be valid and legal.
The idea behind the adoption is that the adopted son should be regarded as the member of the adoptive family but not of the family of his birth. It necessarily implies that the adopted son owns all the liabilities and becomes entitled to all the privileges and rights in the adoptive family in the same manner as if he was born in the same family.
If the adoptive father has been a member of the coparcenary then in the absence of A natural son, the adopted would become a coparcener. The adopted son of a widow of the deceased coparcener, would also be taken as a member of the coparcenary if his adoptive father was so. In Sitabai v. Ram Chandra,’ two brothers consitituted a coparcenary one of them dies issueless leaving behind his widow, who lateron adopted a son.
After sometime the other brother also died leaving behind his widow and an illegitimate son. The son adopted by the first widow was held to be the only surviving coparcener of the family and thus entitled to inherit the entire coparcenary property. The court held that the son adopted by one widow would become a member of the coparcenary as he would be treated as a son of the deceased husband also.
Since the other brother died leaving behind an illegitimate son, who cannot become a coparcener, the adopted son alone will acquire the status of a sole surviving coparcener and thus entitled to entire coparcenary property. The Supreme Court in D.S. Agalwe v. P.M. A gal we, made an important pronouncement. The facts were like this—there was joint Hindu family consisting of Dharma and Mirgu. Mirgu died issueless leaving behind his widow, Champabai. After the death of Mirgu the coparcenary property devolved upon Dharma. Later on Champabai adopted a son, namely Panduranga.
After some time Champabai and Pandurang brought a partition suit against Dharma and claimed their share in the coparcenary property. Dharma refuted their claim on the ground that after the death of Mirgu, by virtue of being a sole coparcener, the entire coparcenary property vested in him, which cannot be divested of him within the meaning of Section 12(c). The Court turned down the plea and held that the adopted son and his adoptive mother could rightly claim a share in the coparcenary property, which had devolved upon the sole surviving coparcener, Dharma.
A person adopted by a Hindu widow after the coming into force of the Hindu Adoptions and Maintenance Act, 1956 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 to adoption. Consequently, the adopted son and the widow adopting him can file a suit for partition against the person who was the sole surviving coparcener before adoption. Proviso (c) to Section 12 is no bar to such suit, since no question of divesting the sole coparcener of his estate involved.
The introduction of a member into a joint family, by birth or by adoption may be treated as 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. 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. The property, no doubt, passes by survivorship, but there is no question of vesting or divesting in the sense contemplated by Section 12 of the Act. In V.K. Nalavade v. Anandji Dhewan, the Bombay High Court had rightly decided that in a coparcenary consisting of two brothers, on the death of one of them the other brother becomes the sole surviving coparcener.
The coparcenary property in such cases does not vest him but in absence of any other coparcener devolves upon him. In case the widow of the deceased brother adopts a son, he becomes the member of the coparcenary and his right to demand partition in the coparcenary property, the share would be equal to the share of his deceased adoptive father. Both the above judgments do not support the view that the doctrine of relation back has been revived.
The Bombay High Court in Kesar Bai Jagannath Gnjar v. State of Maharashtra, has held that where a property has been inherited by a widow from her husband after the commencement of the Hindu Succession Act, 1956 that property becomes her absolute property. Any adoption made by her thereafter could not affect the nature of the property which has vested in her. In such cases the adopted son cannot divest her of that property. The old doctrine of relation back has been completely abrogated by the present Act.
In Siddama v. Rayanagouda, the Court again held that after the commencement of the Hindu Succession Act of 1956, the widow inherits the property of her husband absolutely, so the adopted son would not be entitled to the share of property coming to the widow during her life time.
In Dinaji v. Dadiji, the Supreme Court again held that the adopted son under Section 12(c) cannot divest any person of any property which had vested in him before he was taken into adoption. In the present case a widow has inherited a certain property from her husband as a limited owner but after the commencement of the Hindu Succession Act, 1956 that property became her absolute property within a meaning of Section 14 of the Hindu Succession Act.
Thereafter she adopted a son. It was held by the court that such adoption cannot divest her widowed adoptive mother of any property which had vested in her before he was adopted. If the widow even after his adoption alienates the property, it would be valid and cannot be challenged by the adopted son.
In Vijaya Lakshmamnm v. B.T. Shanker, the Supreme Court again held that the adopted son under Section 12(c) cannot divest any person of any property which had vested in him before he was taken into adoption and consequent protection of the rights vested with the junior widow in the property left behind by the deceased husband and the real and ultimate object of adoption by the widow, no injustice could be said to be caused to the junior widow.
In Sorawar Singh v. Kail Mai, the court observed that consequence of adoption envisaged in Section 12 of the Act is that the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
In Seshadri Bltagavandha v. Narsubai, the Court has upheld that the adopted son cannot claim the right relating to partition of the stridhan which is vested in her before the adoption.
In Kamala Bai v. Rajesh,’ the Court has upheld, where a son is given in adoption and after that some property is gifted to the natural father, since the son is being transferred from natural family to adopted family is not entitled to succeed to such gifted property.
In Prishappa v. Muttawa, the Karnataka High Court has upheld the right of an adopted son to demand partition in a coparcenary. In this case the uncle and his nephew were living together in a coparcenary. The uncle died in 1942, his widow, who was living with the nephew of the husband in the coparcenary, adopted a son in 1970. The adopted son and his adopted mother jointly filed a suit for partition.
The court decreed the suit as the adopted son had become tine member of the coparcenary and he would be treated as the son of the deceased husband of the widow as well. In this way the adopted son acquired the right to demand partition.
The restriction upon the adopted child that he could not marry any one falling within the category of Sapinda and prohibited relationship both in his natural as well as adopted family, is based on public policy. Although it is proved that all his relation with his natural family came to an end and his status in the adopted family becomes the same as if he were a natural born child of that family. Still with respect to marriage the above restriction holds good in both the families.
All such property which vested in the adopted child before he is given in adoption, shall continue to vest in him and such child will have a right to carry the property with him in the adoptive family. After adoption such child will have no right in any property of his natural family. For example, there is a joint Hindu family of three brothers A, Â and C. A is given in adoption.
A cannot carry his share in joint family property with him in the adoptive family. But where certain property has been acquired by him individually he will carry that property with him. An important decision has been delivered by the Andhra Pradesh High Court in the case of Mai’clegadda Nathudanima v. Andhra Pradesh State. In this case the petitioner was a member of coparcenary and he was subsequently given in adoption.
After having been given in adoption he claimed share in the coparcenary to which he was entitled on account of his birth in that family. It was pleaded by him that being a member of die coparcenary he had acquired an interest in the coparcenary property by birth and to the extent of his share in that property his interest in the same had been created and vested in him.
He therefore claimed that now after adoption under Section 12(2) of the Act his interest in the coparcenary property which had vested in him since his birth in that family should be allotted to him after adoption. The court accepted the contention of the petitioner and held that the son thus given in adoption would be held to have a share in the coparcenary property, which he could very much claim after the adoption.
The Bombay High Court on the other hand held that the child given in adoption cannot have any vested right in the undivided joint family property of his family of natural birth. The reason is very clear as partition had not taken place before he was given in adoption, therefore any property cannot be said to have vested in such child, who is subsequently given in adoption.
The effect of Section 12 of the Act again came up for consideration before the Supreme Court in Vasanl v. Dattu. In that case interpreting clause (c) to the proviso of Section 12 of the Act. Chinnappa Reddy, J. who spoke for the court observed that in case of this nature where the joint family properties had passed on to the hands of the remaining members of the coparcenary on the death of one of the coparceners no vesting of the property actually took place in the remaining coparceners while their share in the joint family properties might have increased on the death of one of the coparceners which was bound to decrease on the introduction of one more member into the family either by birth or by adoption.
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 of the adoption made by the widow of a member of the joint family. Such a result was in the contemplation of Parliament at all.
Now after the Amendment of Hindu Succession Act, 2005, the right of survivorship is abolished. Under Section 6 of the Hindu Succession Act (as the law stood before amendment of 2005) when Hindu male died after the passing of the Act without making a will of his undivided property in the coparcenary, and if he leaves behind any female heir as mentioned in Class I of the Schedule, his share in the coparcenary does not devolve by survivorship on other coparceners, but by succession under the Act and if the widow of coparcenar is class I heir, by the virtue of Section 14 of the Hindu Succession Act any property divested to her share is her absolute property and hence if subsequently the widow adopted a son the son cannot claim any share in the widow’s estate.
For example, there is a joint Hindu family consists of ‘A’, the father, and two daughter D1 and D2 and W the wife. A dies and the property is inherited by ‘W, D1 and D2 in equal shares. Now if widow adopts a son ‘S’, he will not be entitled to divest ‘W’ of any property which falls to her share.