KALINDI DAMODAR GARDE (D) BY LRS. versus MANOHAR LAXMAN KULKARNI (D) BY LRS. & ORS. ETC. on 7 February 2020

1. The present appeals arise out of an order passed by the learnedSingle Bench of the High Court of Judicature at Bombay on11[th] December, 2006 deciding writ petition disputing the orders passedEby the Revenue Authorities excluding the names of the sons of Laxmannatural 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 thedate of adoption of Laxman. The first appeal filed by the natural daughterof Laxman was dismissed along with the writ petition holding that thesons born to Laxman prior to adoption are the heirs of Laxman and areFentitled to his estate along with the daughter born to Laxman after hisadoption.

2. The facts are that Laxman was given in adoption to Saraswation 2[nd] November, 1935. Laxman had three sons Gangadhar aged 4 years5 months; Dattatraya aged 2 years 5 months and Manohar aged 9 monthsGat the time of his adoption. After adoption, Laxman and his wife Padmavatijoined the family of Saraswati along with their 3 sons. It was in the year1938, daughter Kalindi was born to Laxman and Padmavati. The naturalfather of Laxman, Pandurang effected partition in respect of his jointfamily property on 30[th] December, 1948 wherein Laxman was excludedHfrom any share as he had gone in adoption to Saraswati.

3. Laxman died on 10[th] January, 1987. Saraswati had predeceasedLaxman. After the death of Saraswati, Laxman inherited the propertyof Saraswati which is the subject matter of the present appeals. Afterthe death of Laxman, his daughter Kalindi applied for effecting the changein the village revenue record for inclusion of her mother Padmavati andherself as owners. The mutation was entered on 11[th] March, 1987. Thematter was taken at various stages thereafter. The revision filed byManohar, son of Laxman, was dismissed on 8[th] September, 1992.Aggrieved, Manohar had filed the writ petition.

4. Padmavati, wife of Laxman, died on 10[th] October, 1992 leavinga registered Will dated 21[st] May, 1987 in which she had bequeathed hershare to her 3 sons which were born prior to the date of adoption. On20[th] October, 1996, Gangadhar, one of the sons of Laxman andPadmavati, died. Thereafter, Dattatraya, the second son filed a suit forpartition, separate possession and mesne profit against forcible possessionby Kalindi. This suit was decreed on 13[th] November, 2004. The maincontest of the parties was on the question as to whether the three sonsof Laxman born before adoption in 1935, namely, Gangadhar, Dattatrayaand Manohar are entitled to inherit the property in adoptive family ofLaxman 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 adaughter born to Laxman after his adoption would inherit the entireproperty along with Padmavati, her mother. Both the matters were takenup for hearing together wherein the learned Single Bench relying uponSection 8 of the Hindu Succession Act, 1956[1] held that the son bornbefore adoption is entitled to succeed to the property of their father.

6. Before this Court, Mr. Venkataramani, learned senior counselfor the appellants relied upon judgment of Division Bench of BombayHigh Court reported as Kalgavda Tavanappa Patil v. SomappaTamangavda Patil & Anr.[2] wherein it has been held as under:

“The son, then, begotten by an adopted Hindu before adoptionhas vested rights in the ancestral property of the family of hisbirth. Rights of property once vested cannot be taken away except 1 for short, ‘Act’

2 ILR (1909) 33 Bom 669

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Ain the mode or modes prescribed by Hindu Law. They cease eitherby death, sale, gift, degradation, disqualification or by adoption.In the case of a son whose father has been given in adoption afterhis birth, if none of these modes for the extinction of his vestedrights of property applies, there must be the clear authority ofsome text for holding that the rights in question are extinguishedBbecause the father of the owner of those rights, having been givenin adoption, has his rights in his natural family extinguished by theact of adoption.”

7. The argument is that the wife of an adoptee passes with herhusband to the adopted family but not the sons born to an adoptee beforeChis adoption. They continue to be members in the family in which theirfather was naturally born. Mr. Venkataramani, learned senior counselfor the appellants vehemently argued that the codified Hindu Law hasnot provided that the children born to an adoptee before adoption will beentitled to inherit the property in the adopted family, therefore, keepingin view the interpretation of Hindu Law as interpreted in KalgavdaDTavanappa Patil, the children born before adoption will not pass withthe adoptee in the adopted family and are not entitled to the share in theestate of the adopted family.

8. Learned senior counsel for the appellants relied upon thefollowing quote from the judgment in Kalgavda Tavanappa Patil:E

“But it is argued that when a married man is given in adoption, hiswife passes with him into the adoptive family—she, like him,acquires the new gotra; that what applies to the wife of the manadopted must apply to his son also, begotten before the adoption,because, both according to the Smriti writers and theirFcommentators, a man’s wife and sons go together. In support ofthis argument reliance is placed on a text of Narada cited byVijnaneshvara in his chapter on “Resumption of Gifts” in theMitakshara (p. 225, Moghe’s 3rd Ed).” (page 687)

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…………….But the text does not say that the son of that man,born before his adoption, ceases to be his son and loses the rightto offer funeral oblations to his soul in case of his death. For one thing, according to the Hindu Shastras, “by no means can youmake your father cease to be” (Jaimini, Bibliotheoa IndicaSeries, Vol. I, p. 742). The mere fact that the father has gone intoanother family by adoption and ceased to be of his son’s gotra orfamily cannot unmake what he naturally is—the son’s father. Thegotras of the two may differ in consequence of the adoption, butit is not always necessary for funeral ceremonies that the personperforming them should be of the same gotra as the deceased. Asister’s son and a son-in-law can perform those ceremonies andyet they are not of the same gotra. So a son begotten before theadoption of his father would be entitled to perform the latter’sfuneral ceremonies. All the Smriti says is that such ceremonies“shall be performed by a son.” It does not make the obligationdependent upon the continuance of the father in the same gotraas the son.” (Page 690)

9. The Full Bench of Bombay High Court in Martand JiwajeePatil & Anr. v. Narayan Krishna Gumast-Patil & Anr.[3] referred tothe aforesaid judgment when considering a case as to whether theadoptee 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. 55I.A. 139 at p. 148, S.C. 30 Bom. L.R. 829.] their Lordships of thePrivy Council after stating at p. 148 that though adoption is spokenof as “new birth” in many cases, a term sanctioned by the theoryof Hindu law, yet “As has been more than once observed, theexpressions ‘civilly dead or as if he had never been born in thefamily’ are not for all purposes correct or logically applicable, butthey are complementary to the term ‘new birth’.” Theinapplicability of the theory can be illustrated by concreteinstances:—

(a) The tie of blood between the adopted son and the members ofhis natural family is not severed. He cannot marry in his naturalfamily within the prohibited degrees, nor can he adopt from hisnatural family a boy whom he could not have adopted if he hadremained in that family [Moottia Moodelly v. Uppon VencataCharry]. [(1858) Mad. S.D. 117.]

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(c) The adoptive father cannot give his adopted son in adoption(Sarkar’s Hindu Law of Adoption, pages 281-282).

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These instances show that an adopted son is not civilly dead in hisnatural family nor reborn in his adoptive family.

It is no doubt true that by giving away his son in adoption theadopted father indirectly meddles with the riktha or property ofhis natural family, since the effect of that adoption will be toextinguish the son’s interest in that property. But thereby the fatherhimself gains no interest in the property. All that Manu’s text saysis that he should not take for himself the gotra and riktha of hisnatural family, and does not prohibit him from doing any act whichmay affect the property of his natural family. Thus, for instance,if he has a brother in his natural family, he is not prohibited fromgiving his son born after his own adoption, in adoption to thatbrother, although thereby the different interests in the property ofhis natural family are affected.

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In the absence of any express text or judicial decision deprivingan adopted son of his right to give away in adoption his son bornbefore his adoption, we do not think that any useful purpose willbe served by imposing such a restriction upon him. The moderntrend of decisions is to take a more liberal view and to interpretthe texts from a practical point of view as far as possible. This isparticularly noticeable in the decisions of this Court on severalquestions of adoption, such as the adoption of an only son, theadoption of a married boy, the adoption of a boy whose motherthe adopting father could not have legally married, and the adoptionby a widow without the express consent of her husband. We donot 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 inadoption. Usually when the father is adopted, his preborn sonsare still minors, and in practice they go with their father to livewith him, though legally they are held to have remained in thenatural family of their father. Though the father has gone inadoption, the ties of affinity and love for his preborn sons cannotbe severed, and he is the proper man to look after their educationand welfare. If a guardian is to be appointed for them, he willnaturally be consulted. Having their interest at heart, he is thebest person to decide whether one of them should be given inadoption and what is conducive to their benefit. By giving one ofhis sons in adoption he himself gains no benefit, and he may besafely trusted to exercise his discretion rightly for the good of hisson, though born before his own adoption.”

10. The Court held that the paternity of the father cannot be shakenoff even though he may leave the family, as, according to HinduShastras,”By no means can you make your father cease to be,”. TheCourt held as under:

“It may be that in ancient and primitive society the son wasregarded as hardly better than his father’s slave, and the prominentidea involved in an adoption was the transfer of dominion or patriapotestas to the person adopting. But when the times changed andthe status of the son was raised, the father’s power to give inadoption came to be founded on a different conception. The textof Vasishtha quoted in Dattaka Mimansa (sec. V, pl. 31), which issaid to afford the foundation of the Hindu law of adoption, andwhich I have already referred to, recognizes the power of thefather and the mother to “give or sell or abandon” their son as heis “produced from their virile seed and uterine blood.” Thispaternity of the father cannot be shaken off even though he mayleave the family, as, according to the Hindu Shastras “By no meanscan you make your father cease to be,” (Jaimini, Bibliotheca IndicaSeries, Volume I, p. 742). The same thing is expressed byChandavarkar, J. in Kalgavda Tavanappa v. SomappaTamangavda as follows (p. 690):—

“The mere fact that the father has gone into another family byadoption and eased to be of his son’s gotra or family cannotunmake what he naturally is—the son’s father.”

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11. Though, the aforesaid judgment was in the context of the rightof an adoptee to give his son born prior to his adoption, but the fact thatthe adoptee will remain the father of the son was recognised way backin 1939. Thus, the Judgment in Kalgavda Tavanappa Patil has notbeen accepted even under the Hindu Law.

B12. However, the situation has undergone a complete change withthe enactment of the Act. The said Act overrides all text, rule orinterpretation of Hindu law or any custom or usage as part of that law inforce immediately before the commencement of this Act. Section 4 ofthe Act reads as under:

C“4. Overriding effect of Act. - Save as otherwise expresslyprovided in this Act,—

(a) any text rule or interpretation of Hindu law or any custom orusage as part of that law in force immediately before thecommencement of this Act shall cease to have effect with respectDto any matter for which provision is made in this Act;.

(b) any other law in force immediately before the commencementof this Act shall cease to have effect in so far as it is inconsistentwith any of the provisions contained in this Act.”

13. Since the succession has opened after the death of LaxmanEon 10[th] January, 1987, therefore, succession has to be in accordancewith the Act and not as per Hindu law as all text, rule or interpretation ofHindu law prior to commencement of the Act have ceased to have anyeffect unless expressly provided for in the said Act. This Court in aJudgment reported as Bhaiya Ramanuj Pratap Deo v. LaluFMaheshanuj Pratap Deo[4]held that a bare perusal of Section 4 wouldindicate that any custom or usage as part of Hindu law in force willcease to have effect after the enforcement of Hindu Succession Actwith respect to any matter for which provision is made in the Act.

14. The principle that the Act will be applicable on the datesuccession opens is well settled. Reference may be made to a judgmentGreported as Bhanwar Singh v. Puran & Ors.[5], wherein this Court heldthat the Act brought about a sea of change in the matter of inheritanceand succession amongst Hindus. Section 4 of the Act contains a non- 4 (1981) 4 SCC 613H5 (2008) 3 SCC 87

obstante provision in terms whereof any text, rule or interpretation ofHindu Law or any custom or usage as part of that law in force immediatelybefore the commencement of the Act, ceased to have effect with respectto any matter for which provision is made therein save as otherwiseexpressly provided.

15. Since there is no provision of denying the rights of successionto the natural born son of an adoptee father, therefore, the successionwill be in terms of the provisions of the Act alone.

16. It may be noticed that the three sons and Kalindi are born toLaxman and his wife Padmavati. They are agnates and related by fullblood in terms of Section 3(a) and 3(e) of the Act. As per the Scheduleto the Act, the son and the daughter of a deceased Hindu male are classI heirs. Some of the relevant provisions of the Act read as under:

“3. Definitions and interpretation.- (1) In this Act, unless thecontext otherwise requires,—

(a) “agnate”—one person is said to be an “agnate” of another ifthe two are related by blood or adoption wholly through males; xx xxxx (e) “full blood”, “half blood” and “uterine blood”—

(i) two persons are said to be related to each other by full bloodwhen they are descended from a common ancestor by the samewife, and by half blood when they are descended from a commonancestor but; by different wives;

(ii) two persons are said to be related to each other by uterineblood when they are descended from a common ancestress butby different husbands; (f) “heir” means any person, male or female, who is entitled tosucceed to the property of an intestate under this Act; xx xx xx A

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A(j) “related” means related by legitimate kinship: Provided thatillegitimate children shall be deemed to be related to their mothersand to one another, and their legitimate descendants shall be deemedto be related to them and to one another; and any word expressingrelationship or denoting a relative shall be construed accordingly.

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8. General rules of succession in the case of males.—The propertyCof a male Hindu dying intestate shall devolve according to theprovisions of this Chapter—

(a) firstly, upon the heirs, being the relatives specified in class I ofthe Schedule; (b) secondly, if there is no heir of class I, then upon the heirs,Dbeing the relatives specified in class II of the Schedule;

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17. The manner of inheritance under the Act, in the cases ofEadoption of married persons before the enactment of the Act, has comeup for consideration before the Learned Single Bench of Bombay HighCourt in an unreported Judgment (Dundyappa Laxman Karol v.Neelavva Chandrappa Jarali)[6]. In the said case, the plaintiffs werechildren of Shivappa, from his wife Gouravva, born before the adoptionFof Shivappa. The claim was in the estate of Shivappa, who died on 17[th]March 1957 that is after the commencement of the Act. Gouravva alsodied on 6[th] August 1957. The stand of the defendant was that the plaintiffsbeing children of Shivappa before he went in adoption were not entitledto inherit the property of Gouravva, which she inherited from her husband.The learned Single Bench noticed that the adoption of Shivappa tookGplace long before the enactment of Hindu Adoptions and MaintenanceAct, 1956 and thus adoption would be governed by Hindu law as it existedprior to enactment. The Court held that an adopted child is to be deemed 6 Second Appeal No. 556 of 1964 decided by Bombay High Court on 26th November,1971.H

as a child of his or her adoptive father or mother for all purposes witheffect from the date of the adoption. One important result of the severanceof the ties in the family of birth would be that the adoptee can no longerclaim any right to succeed to the property of his natural father or motheror any of the relations in the family of birth. The question consideredwas whether the children born prior to date of adoption of Shivappawould be entitled to inherit the property on the death of Gouravva whichtook place after coming into force of the Act. It was held that the propertyinherited by a Hindu female howsoever acquired would be her absoluteproperty. The Court held as under:

“…Broadly speaking, the property possessed by a Hindu femaleafter the coming into force of the said Act would no longer be herlimited estate but will be regarded as her absolute property andthe intestate succession to such property would be governed bysections 15 and 16 of the Hindu Succession Act.

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In my opinion, the fictional severance of ties with the natural familywould not mean that her children would cease to be her childrenor can be considered to be not her children by means of a legalfiction. If by virtue of the definition in Section 3(j) even theillegitimate children of a Hindu female have been given a right toinherit her property, then it would not be permissible to say thather legitimate children should be excluded because they wereborn to her prior to the date of her husband’s adoption. If, however,the Legislature had specifically provided for this, then effect mustbe given to such a provision and the wishes of the Legislaturerespected. Where, however, there is no such clear provision, suchexclusion would appear to be against the plain language of theenactment and it would not be proper to come to any suchconclusion.”

18. It was found that the Privy Council decision reported as TewariRaghuraj Chandra & Ors. v. Rani Subhadra Kunwar & Ors.[7] does 7 AIR 1928 PC 87

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Anot afford any guidance to the question as to whether the legitimatechildren born prior to adoption would cease to be included in the categoryof her children.

19. The Division Bench of Bombay High Court in KausalyabaiW/o Jagdeorao v. Devkabai W/o Jaiwantrao Deshmukh[8] whileBexamining 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 herfather after the commencement of the Act, held as under:

“33. Mr. Paranjpe fairly stated that he could not find any authoritytaking the view that such a daughter would cease to be the daughterCof her father because of his adoption. As far as we are aware,there is no text of any Dharmashashtra, which lays down that adaughter ceases to be a daughter the moment her father is givenin adoption.

34. The blood relation of the daughter and the father continued tillthe Hindu Succession Act came into force; and hence we are ofDthe view that Mr. Deo’s contention that the daughter, the defendant,was entitled to ]!th share in the suit lands, having regard to theprovisions contained in ss. 8 and 15(b) read with s. 10, R. 1, mustbe upheld. The decree must, therefore, follow in favour of theplaintiff; only to the extent of \!th share in the suit lands.”

E20. Similar view has been taken by the Division Bench of theKarnataka High Court in a judgment reported as Smt. Neelawwa v.Smt. Shivawwa[9 ]wherein, the daughter of deceased Mallappa claimedhalf share in the suit property and the defendant claimed her right as awidow, being the step mother of the plaintiff. However, the defendantalleged that the plaintiff was born prior to the adoption. Mallappa wasFgiven in adoption in the year 1939 whereas the plaintiff was born in theyear 1937. In this case, the Court held as under:

“9……………………..In our view it means and includesmoveable and immoveable property, whether separate or selfacquired or an interest in a Mitakshara Coparcenary propertyGprovided he has left him surviving any of the female heir or adaughter’s son mentioned in Class I of the Schedule to the Act.The fact that the deceased Mallappa had come to own and possessthe suit land by reason of his adoption did not make any difference 8 (1978) 16 Mh.L.J. 357H9 AIR 1989 Karnataka 45

for the purpose of Section 8 of the Act as it was the property ofMallappa at the time of his death. Now we shall see whether theplaintiff cannot be considered to be an heir of her father merelybecause she was born before he was given in adoption. Theexpressions ‘heir’ and ‘related’ are also defined in Section 3(f)and (j) respectively of the Act. “Heir” means any person male orfemale who is entitled to succeed to the property of an intestateunder the Act. “Related” means related by legitimate kinship. Theproviso to this definition is not relevant for our purpose, because itis not in dispute that the plaintiff is the legitimate daughter of thedeceased Mallappa born through his 1st wife. It is true, adoptionhad the effect of removing Mallappa from his natural family intothe adoptive family, but did not and could not severe the tie ofblood relationship between him and the plaintiff, or for that matterthe members of his natural family. Therefore, the plaintiffirrespective of the adoption of her father continued to be thedaughter of Mallappa. Thus the plaintiff being the daughter fallsin the category of heirs specified in Class I of the Schedule to theAct……………”

21. In view of the provisions of the Act which do not make anydistinction between the son born to a father prior or after adoption of hisfather and that there is no provision which bars the natural born son toinherit the property of his natural father, therefore, the High Court hasrightly upheld the rights of the sons of Laxman. In fact, in the Full Benchjudgment of Bombay High Court in Martand Jiwajee Patil, it has beenheld that the natural father retains the right to give in adoption his sonborn before his own adoption. Therefore, if he has a right to give his sonin adoption, such son has a right to inherit property by virtue of being anagnate. There was a full blood relationship between the three sons andthe daughter who was born after adoption. All the children of Laxmanare entitled to inherit the property of their natural father and mother inaccordance with the provisions of the Act as succession has openedafter the death of Laxman in 1987 and subsequently the mother in theyear 1992.

22. In view thereof, we do not find any error in the judgment ofthe learned Single Bench of the Bombay High Court. Accordingly, theappeals are dismissed.

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HAppeals dismissed.