PETITIONER: SAWAN RAM & OTHERS Vs. RESPONDENT: KALA WANTI & OTHERS DATE OF JUDGMENT: 19/04/1967 BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA WANCHOO, K.N. (CJ) MITTER, G.K. CITATION: 1967 AIR 1761 1967 SCR (3) 687 CITATOR INFO : HO 1988 SC 845 (25) ACT: Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) Ss. 9(2) and 12-Deed recites adoption given by parents and consent by mother, If valid-Adoption by widow, if also to husband- HEADNOTE: A widow, whose husband had died before the Hindu Succession Act came into force, adopted respondent 2 after the enforcement of the Act. On the widow's death, the appellant the nearest reversioner of her husband, filed a suit challenging the adoption. The trial court dismissed the suit, which, in appeal, the High Court upheld. In appeal, to this Court the appellant contended that (i) the adoption was-invalid under (ii) of s. 6 read with s. 9 (2) of the Hindu Adoptions and Maintenance Act as the son was given in adoption by his mother, even though his father was alive; and (ii) under the Hindu Adoptions and Maintenance Act, an independent right of adoption is given to Hindu female and if a widow adopts a son, he becomes the adopted son of the widow only and was not deemed to be the son of her deceased husband. HELD : The appeal must be dismissed. (i) The evidence on record established that the son was given in adoption by both the parents. The deed of adoption mentions that the had been given in adoption by his "Parents which necessarily includes the father. The following sentence stating that the mother of the boy had 'put her thumb-mark hereunder in token of her consent,' was put in the deed, because s. 9(2) of the Adoptions and Maintenance Act mentions that the father is not to exercise his right of giving his child in adoption, save with the consent of the mother. "The consent of the, mother" having been used in the Act which was applicable, the draftsmen of the deed included in it the fact that the boy's mother had actually given her consent and obtained her thumb-impression in token thereof. 689D-H] (ii) The provision in s. 12 of the Act, makes it clear that, on adoption by a Hindu female who has been married, the adopted son will, in effect, be the adopted son of her husband also. Under the Shastric Law if a child was adopted by a widow, he was treated as a natural-born child and, consequently, he could divest other members of the family of rights vested in them prior to his adoption. It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that the provisions in clause (c) of the proviso to s. 12, and section 13 of the Act were incorporated. In that respect, the rights of the adopted child were restricted. It is to be noted that this restriction was placed on the rights of a child adopted by either- a male Hindu or a female Hindu and not merely in a case of adoption by a female Hindu. This restriction on the rights of the adopted child cannot, therefore, lead to any inference that a child adopted by a widow will not be deemed to be the adopted son of her deceased husband. [694B-C,F-H] Nara Hanumantha Rao v. Nara Hanumayya and another, [1964] 1 Andhra Weekly Reporter, 156, discussed. 688 JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 728 of 1964.
Appeal by special leave from the. judgment and decree dated
September 25, 1961 of the Punjab High Court in Civil Regular
Second Appeal 343 of 1961.
S. K. Mehta and K. L. Mehta, for the appellant. A. D.
Mathur, for the respondents.
The Judgment of the Court was delivered by
Bhargava, J. One Ramji Dass died leaving behind a widow,
Smt. Bhagwani. At the time of his death, he owned some
land and a house. 4 bighas and 17 biswas of the land were
mortgaged by Smt. Bhagwani on 2nd May, 1948 in favour of
respondent No. 3, Babu Ram. Later, on 22nd August, 1949,
she executed a deed of gift in respect of the house and the
land covering an area of 50 bighas and 14 biswas in favour
of Smt. Kala Wanti who was related to her as a grandniece.
Sawan Ram appellant instituted a suit for a declaration that
both these alienations were without legal necessity and were
not binding on him, claiming that he was the nearest
reversioner of Ramji Dass, being his collateral. In that,
suit, Smt. Bhagwni the donee, Smt. Kala Wanti, respondent
No. 1, and the mortgagee, Babu Ram, respondent No. 3, were
impleaded as defendants. That suit was decreed and Smt.
Bhagwani went up in appeal to the High Court. During the
pendency of the appeal, Smt. Bhagwani adopted respondent
No. 2, Deep Chand, the son of Brahmanand and his wife,
respondent No. 1, Smt. Kala Wanti. A deed of adoption was
executed by her in that respect on 24th August, 1959. The
appeal was dismissed in spite of this adoption.
Smt. Bhagwani died on 31st October, 1959, and thereupon,
the appellant brought a suit for possession of the house and
the land which had been gifted by Smt. Bhagwani to
respondent No. 1 as well as for possession of the land which
she had mortgaged with respondent No. 3. It was claimed that
Smt. Bhagwani had only a life interest in all these
properties, because she had divested herself of all the
rights in those properties on 22nd August, 1949, before the
Hindu Succession Act, 1956 (No. 30 of 1956) came into force.
The adoption of Deep Chand was also challenged as fictitious
and ineffective. It was further urged that, even if that
adoption was valid, Deep Chand became the adopted son of
Smt. Bhagwani and could not succeed to the properties of
Ramji Dass. The suit was dismissed by the trial court,
holding that the adoption of Deep Chand was valid and that,
though Smt. Bhagwani had not become the full owner of the
property under the Hindu Succession Act, 1956, Deep Chand
was entitled to succeed to the property of Ramji Dass in
preference to the appellant, so that the appellant could not
claim possession of these pro-
689
perties. That order was upheld by the High Court. of
Punjab, and the appellant has now come up to this Court in
appeal by special leave.
In this appeal before us, only two points have been urged by
learned counsel for the appellant. The first point taken is
that, even though the appellant did not challenge the
finding of fact that respondent No. 2 was, in fact, adopted
by Smt. Bhagwani, that adoption was invalid under clause
(Ii) of section 6 read with sub-s. (2) of s. 9 of the Hindu
Adoptions and Maintenance Act, 1956 (No. 78 of 1956)
(hereinafter referred to as “the Act”). It is urged that,
under s. 9 (2) of the Act, if the father of a child is
alive, he alone has the right to give in adoption, though
the right is not to be exercised, save with the consent of
the mother. In this case, reliance was placed on the
language of the deed of adoption dated 14th August, 1959, to
urge that Deep Chand was, in fact, given in adoption to Smt.
Bhagwani by his mother, respondent No. 1, even though his
father, Brahmanand, was alive.
This point raised on behalf of the appellant is negatived by
the evidence on the record. There is oral evidence of the
adoption which has been accepted by the lower courts, and it
shows that. Deep Chand was given in adoption by both the
parents to Smt. Bhagwani. Even the deed of adoption dated
24th August, 1959, on which reliance was placed on behalf of
the appellant in support of this argument, does not bear out
the suggestion that Deep Chand was given in adoption by his
mother and not by his father. The deed clearly mentions
that “the parents of Deep Chand have, of their own free
will, given, Deep Chand to me, the executant, today as my
adopted son.” This recitation is followed by a sentence
which states : “Mst. Kala Wanti, mother of Deep Chand, has
put her thumb-mark hereunder in token of her consent.” It
was from this solitary sentence that inference was sought to
be drawn that Deep Chand had been given in adoption by his
mother, Kala Wanti and not by the father. The deed, in the
earlier sentence quoted above, clearly mentions that Deep
Chand had been given in adoption by his “parents” which
necessarily includes the father. This later sentence, it
appears, was put in the deed, because s. 9(2) of the Act
mentions that the father is not to exercise his right of
giving his child in adoption, save with the consent of the
mother. “The consent of the mother” having been used in the
Act which was applicable, the draftsmen of the deed included
in it the fact that Deep Chand’s mother had actually given
her consent and obtained her thumb-impression in token
thereof. This mention of the consent cannot, in these cir-
cumstances, be held to show that it was the mother who, in
fact, gave the child in adoption and not the father.
The second point and the one, on which reliance is mainly
placed by learned counsel for the appellant, is that,
according
690
to him, under the Act, an independent right of adoption is
given to a Hindu female and if a widow adopts a son, he
becomes the adopted son of the widow only and is not to be
deemed to be the son of her deceased husband. Under the
Shastric Hindu Law, no doubt, if a Hindu widow made an
adoption after the death of her husband on the basis of
consent obtained from him in his lifetime, the adopted son
was deemed to be the son of the deceased husband also; but
it is urged that the Act has completely changed this policy.
In support of this proposition, learned counsel drew our
attention to the provisions of s. 8 of the Act, under which
any female Hindu, who is of sound mind, who is not a minor,
and who is not married, or if married, whose marriage has
been dissolved or whose husband is dead or has completely
and finally renounced the world or has ceased to be a Hindu
or has been declared by a court of competent jurisdiction to
be of unsound mind, has been granted the capacity to take a
son or a daughter in adoption. Then reference was made to
s. 12 of the Act, which runs as follows :-
“12. 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 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;
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 owner-
ship 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.”
Reliance was also placed on sections 13 and 14
of the Act which are reproduced below:-
“13. Subject to any agreement to the
contrary, an adoption does not deprive the
adoptive father or mother of the power to
dispose of his or her property by transfer
inter vivos or by will.
14. (1) Where a Hindu who has a wife living
adopts a child, she shall be deemed to be the
adoptive mother.
691
(2) Where an adoption has been made with the
consent of more than one wife, the senior most
in marriage among them shall be deemed to be
the adoptive mother and the others to be,
step-mothers.
(3) Where a widower or a bachelor adopts a
child, any wife whom he subsequently marries
shall be. deemed to be; the stepmother of the
adopted child.
(4) Where a widow or an unmarried woman
adopts a child, any husband whom she marries
subsequently shall be deemed to be the
stepfather of the adopted child.”
On the basis of these provisions, it was urged that the
scheme of the Act is that, when a Hindu female adopts a
child, he becomes the adopted son of the Hindu female only
and does not necessarily become the son of the deceased
husband, if the Hindu female be a widow. Emphasis was laid
on the fact ‘that even an unmarried female Hindu is
permitted to take a son or daughter in adoption and in such
a case, naturally, no question would arise of the adopted
child becoming the adopted son of a Hindu male also. In
this connection, reliance was placed on a decision of the
High Court of Andhra Pradesh in Nara Hanumantha Rao v. Nara
Hanumayya and Another(1). For convenience, the facts of that
case may be briefly reproduced as given in the head-note to
indicate the question of law that fell to be decided. A and
his two sons B and C were members of a Hindu joint family.
B died on 26th August, 1924 leaving behind his widow D. A
died in the year 1936. On 17th June, 1957, D adopted E, and
E filed the suit against C and his son F for partition and
separate possession of a half share in the properties. The
trial court held : (1) that there is a custom among the
members of the Kamma caste, to which the parties
belonged, whereby the adoption of a boy more than 15
years old is valid; and (2) that the adoption of E could
not have the result of divesting the interest of B that had
vested in C long prior to the date of the adoption, having
regard to the provisions of the Act. In appeal, the High
Court upheld the decision of the trial court on both the
points that were raised. The existence of the caste
custom, by which boys aged more than 15 years could be
adopted, was held to be sufficiently proved by evidence.
Then the High Court proceeded to consider the provisions
of the Act to find out whether E could claim a share in
the property of B, the deceased husband of D who had adopted
him. The learned Judges of the High Court enumerated the
contents of the various relevant sections of the Act and
then proceeded to consider whether E could claim a
right in the property left by B. The Court, after
reproducing the provisions of s. 12 of the Act held :
(1) [1964] I Andhra Weekly Reporter, 156.
69 2
“Under the terms of the above section, an
adopted child is deemed to be the child of his
or her adoptive father or mother for all
purposes with effect from the date of the
adoption. Relying on the words “for all
purposes”, it is argued that the adopted child
has the same rights and privileges in the
family of the adopter as the legitimate child.
From the language of the section, it is
manifest that an adopted child is deemed to be
the child of his or her adoptive father or
mother. The use of the word “or” between the
words “father” and “mother’ makes this
abundantly clear. The use of the expression
“with effect from the date of adoption” as
also the language of clause (c) of the Proviso
are important. The expression “with effect
from the date of adoption” introduces a vital
change in the pre-existing law. Under the law
as it stood before the Act came into
operation, the ground on which an adopted son
was held entitled to take in defeasance of the
rights acquired prior to his adoption was
that, in the eye of law, his adoption related
back, by a legal fiction, to the date of death
of his adoptive father. The rights of the
adopted son, which were rested on the theory
of “relation back”, can no longer be claimed
by him. This is clear from the specific
provision made in s. 12 that the rights of the
adopted are to be determined with effect from
the date of adoption. Clause (c) of the
Proviso to s. 12 lays down the explicit rule
that the adoption of a son or daughter, by a
male or female Hindu is not to result in the
divesting of any estate vested in any person
prior to the adoption.”
When finally expressing its opinion on the question of law,
the Court said :
“The Act has made a notable departure from the
previous law in allowing a widow to adopt a
son or daughter to herself in her own right.
Under the Act, there is no question of the
adopted child divesting of any property vested
in any person or even in herself. The
provisions of section 13 make this position
clear, by providing that an adoption does not
deprive the adoptive father or mother of the
powers to dispose of his or her property by
transfer inter vivos or by will… On a fair
interpretation of the provisions of section 12
of the Act, we are of the opinion that the
section has the effect of abrogating the
ordinary rule of Mitakshara law that, as a
result of the adoption made by the widow, the
adoptee acquires rights to the share of his.
deceased
39 6
adoptive father which has passed by
survivorship to his father’s brothers.”
We are unable to accept this interpretation of the
provisions of the Act by the Andhra Pradesh High Court as it
appears to us that the High Court ignored two important
provisions of the Act and did not consider their effect when
arriving at its decision. The first provision, which is of
great significance, is contained in s. 5 (1) of the Act
which lays down : “No adoption shall be made after the
commencement of this Act by or to a Hindu except in
accordance with the provisions contained in this Chapter,
and any adoption made in contravention of the said
provisions shall be void.” It is significant that, in this
section, the adoption to be made is mentioned as “by or to a
Hindu”. Thus, adoption is envisaged as being of two kinds.
One is adoption by a Hindu, and the other is adoption to a
Hindu. If the view canvassed on behalf of the appellant be
accepted, the consequence will be that there will be only
adoptions by Hindus and not to Hindus. On the face of it,
adoption to a Hindu was intended to cover cases where an
adoption is by one person, while the child adopted becomes
the adopted son of another person also. It is only in such
a case that it can be said that the adoption has been made
to that other person. The most common instance will
naturally be that of adoption by a female Hindu who is
married and whose husband is dead, or has completely and
finally renounced the world, or has been declared by a court
of competent jurisdiction to be of unsound mind. In such a
case, the actual adoption would be by the female Hindu,
while the adoption will be not only to herself, but also to
her husband who is dead, or has completely and finally
renounced the world or has been declared to be of unsound
mind.
The second provision, which was ignored by the Andhra
Pradesh High Court, is one contained in s. 12 itself. ‘The
section, in its principal clause, not only lays down that
the 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, but, in addition, goes on to
define the rights of such an adopted child. It lays down
that 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 question naturally arises what is the adoptive
family of a child who is adopted by a widow, or by a married
woman whose husband has completely and finally renounced the
world or has been declared to be of unsound mind even though
alive. It is well-recognized that, after a female is
married, she belongs to the family of her husband. The
child adopted by her must also, therefore, belong to the
same family. On adoption by a widow, therefore, the adopted
son is to be deemed to be a member of the family of the
deceased husband of the widow. Further still, he loses all
his rights in the family of his birth and those rights
694
-are replaced by the rights created by the adoption in the
adoptive family. The right, which the child had, to succeed
to property by virtue of being the son of his natural
father, in the family of his birth, is, thus, clearly to be
replaced by similar rights in the adoptive family and,
consequently, he would certainly obtain those rights in the
capacity of a member of that family as an adopted son of the
deceased husband of the widow, or the married female, taking
him in adoption. This provision in s. 12 of the Act, thus,
itself makes it clear that, on adoption by a Hindu female
who has ‘been married, the adopted son will, in effect, be
the adopted son of her husband also. This aspect was
ignored by the Andhra Pradesh High Court when dealing with
the effect ,of the language used in other parts of this
section.
It may, however, be mentioned that the conclusion which we
have arrived at does not indicate that the ultimate decision
given by the Andhra Pradesh High Court was in any way
incorrect. As we have mentioned earlier, the question in
that case as whether E, after the adoption by D, the widow
of B, could divest C of the rights which had already vested
in C before the adoption. It is significant that by the
year 1936 C was the sole male member of ,the Hindu joint
family which owned the disputed property. B died in the
year 1924 and A died in 1936. By that time, the Hindu
Women’s Rights to Property Act had not been enacted and,
consequently, C, as the sole male survivor of the family
became full owner of that property. In these circumstances,
it was clear that after, the adoption of E by D, E could not
divest C of the rights already vested in him in view of the
special provision contained in clause (c) of the proviso to
s. 12 of the Act. It appears that, by making such a
provision, the Act has narrowed down the rights of an
adopted child as compared with the rights of a child born
posthumously. Under the Shastric law, if a child was
adopted by a widow, he was treated as a natural-born child
and, consequently, he could divest other members of the
family of rights vested in them prior to his adoption. It
was only with the limited object of avoiding any such
consequence on the adoption of a child by a Hindu widow that
these provisions in clause (c) of the proviso to s. 12, and
section 13 of the Act were incorporated. In that respect,
the rights of the adopted child were restricted. It is to
be noted that this restriction was placed on the rights of a
child adopted by either a male Hindu or a female Hindu and
not merely in a case of adoption by a female Hindu. This
restriction on the rights of the adopted child cannot,
therefore, in our opinion, lead to any inference that a
child adopted by a widow will not be deemed to be the
adopted son of her deceased husband. The second ground
taken on behalf of the appellant also, therefore, fails.
The appeal is, consequently, dismissed with costs.
Y.P. Appeal dismissed.
695