JUDGMENT
L. Narasimha Reddy, J.
1. In this second appeal, the judgment and decree of the lower appellate Court dated 19-9-1989 in AS No. 66 of 1983 reversing that of the trial Court dated 26-3-1983 in OS No. 504 of 1980 are in challenge. The plaintiff is the appellant. For the sake of convenience, the parties shall be referred to as arrayed in the suit.
2. The plaintiff filed the suit for partition. The plaintiff and defendants 1 to 3 are the sons of late Rayaprolu Chalapathi. It was the case of the plaintiff that the 3rd defendant by name Rayaprolu Rama Krishna Sharma was given in adoption to one Rayaprolu China Krishna Murthy. The joint family comprising of the plaintiff and defendants 1 and 2 owned a house bearing Door No. 10-3-48 in Nageshwara Rao Street, Ramaraopet, Kakinada. According to the appellant, the 3rd defendant was not entitled to any share in the partition since he was given in adoption. The 3rd defendant contested the suit. He disputed the alleged adoption and claimed a share in the schedule property along with his other brothers who figured as plaintiff and defendants 1 to 2.
3. Necessary issues were framed by the trial Court. On behalf of the plaintiff, PWs.1 and 2 were examined and on behalf of the defendants, DWs.1 and 2 were examined. Documents Exs. A1 to A4 were marked by the plaintiff and document Ex.B1 was marked by the defendants. On appreciation of the oral and documentary evidence, the trial Court decreed the suit and through judgment dated 23-6-1983 passed a preliminary decree directing the suit schedule property to be divided into three shares and the plaintiff and defendants 1 and 2 be allotted one share each.
4. The 3rd defendant, who is the 1st respondent herein, filed AS No. 66 of 1983 in the Court of the Subordinate Judge, Kakinada. The lower appellate, through its judgment dated 19-7-1989, reversed the finding of the trial Court on the question of adoption of the 3rd defendant and held that he is also entitled for his share along with the other brothers. Hence, this second appeal by the plaintiff.
5. Ms. Rama, appearing for Sri V.L.N.G.K. Murthy, learned Counsel for the plaintiff/appellant, submits that the judgment of the lower appellate Court reversing the findings of the trial Court on the question of adoption of the 3rd defendant cannot be sustained either on facts or in law. It is her contention that the plaintiff herein had placed sufficient evidence before the trial Court to prove that the 3rd defendant was given in adoption. According to her, the admissions of the 3rd defendant as DW2 and the document Ex.A4 are sufficient to prove the said fact. She further submits that the interpretation placed by the lower appellate Court on Section 12(c) cannot be sustained in law.
6. Sri A.C. Rose, appearing for Sri C. Poornaiah, the learned Counsel for the 3rd defendant/1st respondent, on the other hand, submits that the burden to prove that the 3rd defendant was given in adoption was heavily upon the plaintiff and he did not discharge the same. According to him, the requisite ceremonies, which are needed for a valid adoption, were not proved to have been performed. It is his case that the 3rd defendant was only fostered son of China Krishna Murthy and the same cannot be treated as adoption. He finally submits that the findings recorded by the lower appellate Court are on the basis of evidence on record and decided cases and the same cannot be disturbed.
7. The only question that needs to be examined is whether the 3rd defendant/1st respondent was given in adoption to China Krishna Murthy, Inasmuch as the lower appellate Court placed its interpretation on Section 12 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as “the Act”), that aspect also needs to be considered.
8. It is not in dispute that the parties to the suit are brothers. It was pleaded by the plaintiff that the 3rd defendant was given in adoption. The said adoption is said to have been taken place several decades prior to the filing of the suit. There were neither the natural parents nor the adoptive parents to speak about the factum of adoption. Therefore, the question was to be decided only on the basis of circumstantial evidence. On his part, the plaintiff, having spoken about the factum of adoption in the oral evidence, had marked Ex.A4 in support of his plea. Ex.A4 is a document under which the plaintiff and his brothers, defendants 1 and 2, sold a house, the 3rd defendant i.e., DW2. In that document, the respondent did not join the vendors. On the other hand, he figured as an attestor. The name of his father was described as China Krishna Murthy. When DW2 was confronted with this, he simply stated that he does not remember to have signed Ex.A4.
9. It was elicited from DW2 in his cross-examination that in the school records his father’s name is recorded as China Krishna Murthy and that he is performing the death anniversaries of China Krishna Murthy. These facts, in my view, constitute sufficient evidence to prove the factum of adoption that took place several decades ago. Totally different things altogether would have ensured if the 3rd defendant disputed his signature in Ex.A4, the name of his natural father continued in school records and if he was not at all concerned with the family of China Krishna Murthy. If these facts are put together, nothing remains to be established; having regard to the facts and circumstances of the case. The lower appellate Court reversed the findings of the trial Court in this regard on the ground that the ceremonies which are said to have taken place at the time of giving the 3rd defendant in adoption were not sufficient to constitute valid adoption. When the subsequent facts speak for themselves, testing the matter with reference to certain ceremonies, which have taken place about several decades back, was not at all called for.
10. The lower appellate Court has discussed the matter from an alternative angle also. According to it, even assuming that there was a valid adoption, the rights of DW2 to claim his share in the coparcenery of his natural family remain unaffected. In arriving at such a conclusion, the lower appellate Court took a view that the share of a coparcener stands vested even before any partition takes place. It has relied upon the judgment of the Calcutta High Court reported in Rakhalraj Mondal v. Debendra Nath, AIR 1948 Cal. 356.
11. The learned Counsel for the plaintiff submits that the view taken by the lower appellate Court cannot be sustained for two reasons; firstly, on a person being given in adoption, his relation with the natural family gets severed for all practical purposes. In support of this contention, the learned Counsel placed reliance upon para 205 in Hindu Law and Usage by Mayne’s Pg.383 and the judgment of the Supreme Court in Sawan Ram v. Kalavanti, . Secondly, the vesting of the property in a child before adoption as contemplated under proviso (b) to Section 12 does not arise if the family remained undivided by the time of adoption.
12. Reliance is placed upon the judgment of the Bombay High Court in D.R. Patel v. S.R. Patel, , and Santosh Kumar Jalan v. Chandra Kishore Man, AIR 2000 (1) Patna 125.
13. The learned Counsel for the 3rd defendant, on the other hand, submits that the coparcenery right of an adopted child with reference to the natural family is saved and protected by virtue of proviso (b) to Section 12 of the Act.
14. It is a settled principle of Hindu Law that whenever a person is given in adoption to another family, all his relations, proprietary as well as temporal, gets severed from the natural family. The Customary law as well as the decided cases have gone to the extent of saying that consequent upon adoption, for all practical purposes, the person given in adoption shall be never deemed to have existed in the natural family. Mayne in his commentary on the subject in para 205 has the following to say:–
””Removal from natural family,–By adoption the boy is completely removed from has natural family as regards all civil rights and obligations. He is so completely removed that he has not even to observe pollution on the birth or death of any member in the family of the birth. He also cases to perform funeral ceremonies for those of his family for whom he would otherwise have offered oblations, and he loses all rights of inheritance as completely as if, he had never been born. The adopted son loses his rights in the coparcenery property and his natural family cannot inherit from him, nor is he liable for their debts.”
There is nothing to indicate that this proposition of law is in any way altered with the enactment of the Act. Therefore, once the factum of adoption is established, the relationship of the adopted son vis-a-vis the natural family gets severed.
15. Now it needs to be seen whether proviso (b) to Section 12 of the Act has in any way altered the law on the subject. Section 12 of the Act, which deals with the effects of adoption, reads as under:–
“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 the ties of the child in the family of his or her birth shall be deemed to be served 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."
Placing reliance on proviso (b) to Section 12, the learned Counsel for the 3rd defendant submits that the share of the 3rd defendant in the coparcenery of the natural family should be deemed to have vested and as such it is protected. He placed reliance upon the judgment of the Division Bench of this Court in Y. Nayudamma v. Government of Andhra Pradesh, . In that judgment, this Court held that:–
“Notwithstanding the adoption, a person in Mitakshara family has got a vested right even in the undivided property of his natural family which on adoption he continues to have a right over it.”
This position of law was held to be the outcome of proviso (b) to Section 12 of the Act. It was observed by the Bench as under:
“The property vests in a coparcener by birth and hence he gets a vested right in that property by virtue of inheritance. The position would have probably different if the proviso (b) was not enacted in Section 12.”
The Bombay High Court in DR Patel’s case (supra) took a different view and in a way dissented from the judgment of this Court. It has observed as under:
If there is coparcenery or joint family in existence in the family of birth on date of adoption, then the adoptee cannot be said to have any vested property. The property does not vest and therefore provision of Section 12; proviso (b) is not attracted. In the context of Section 12, Proviso (b) ‘vested property’ means where indefeasible right is created i.e., on no contingency it can be defeated in respect of particular property. In other words where full ownership is conferred in respect of a particular property. But this is not the position in case of coparcenery property. The coparcenery property is not owned by a coparcener and never any particular property. All the properties vest in the joint family and are held by it.
Similarly, the Division Bench of the Patna High Court in Santosh Kumar Jalan’s case (supra) has chosen to agree with the Bombay High Court and differed with the judgment of this Court.
16. In view of the fact that adoption in the present case was earlier to the enactment of the Act, it is not necessary to go into the question as to whether a notional share of the coparcenery property in the natural family of an adopted person vested or not. Section 30 of the Act reads as under:
“30. Savings:—Nothing contained in this Act shall affect any adoption made before the commencement of this Act, and the validity and effect of any such adoption shall be determined as if this Act had not been passed.”
Since this Court in Nayudamma’s case (supra) took the view that vesting of the share in the natural family to a person given in adoption is on account of proviso (b) to Section 12 of the Act, the respondent herein is not entitled for such a protection.
17. Viewed from any angle, the order under appeal cannot be sustained. The same is accordingly set aside and the second appeal is allowed. The result is that the decree of the trial Court shall stand restored. There shall be no order as to costs.