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PETITIONER: SMT. CHANDAN BILASINI (DEAD) BY LR.

       Vs.

RESPONDENT: AFTABUDDIN KHAN & ORS.

DATE OF JUDGMENT16/11/1995

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) PUNCHHI, M.M.

CITATION:  1996 AIR  591            1996 SCC  (7)  13  JT 1995 (9)   364        1995 SCALE  (6)459

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CIVIL APPEAL NO. 2462 OF 1977 Aftabuddin Khan & Ors. V. Amaresh Sarkar and Anr.                       J U D G M E N T Sujata V. Manohar, J.      Since the  parties before us have already settled their property dispute,  the only question which is left for us to decide is  whether the  respondent Amaresh  Sarkar in  Civil Appeal No.  2462/1977 was  the duly  adopted son  of Chandan Bilasini Dasi, the original first-plaintiff.      Chandan Bilasini  Dasi was  married to  one Kalikrishna Sarkar who  died on  11.12.1905 leaving  a will under which, inter alia,  he  had  authorised  his  widow,  the  original plaintiff No.  1 to  adopt a  son and  in the  event of  the adopted son’s  death to adopt a second son. The adoption had to be  made with  the consent  of the executors. Accordingly the first-plaintiff  had adopted  one Sudhanshu Mohan Sarkar as per  the directions contained in the Will of Kalikrishna. Sudhanshu Mohan Sarkar died in an unmarried state on 7.3.65. Thereafter she adopted the said respondent Amaresh Sarkar on 24.8.65. By  this time all the executors were dead. She also executed a  registered deed  acknowledging the  adoption  of Amaresh Sarkar  which is  dated 30.9.65. This deed, however, was not counter-signed by the natural parents of the adopted child. The  natural father  executed  a  deed  acknowledging adoption  which   is  dated   15.4.67.  This  deed  is  also registered. Apart  from these documents, evidence was led in order  to  prove  the  ceremony  of  giving  and  taking  in adoption. It  is necessary  to bear in mind that this second adoption took  place after  coming into  force of  the Hindu Adoptions and  maintenance Act,  1956 under which the first- plaintiff Chandan Bilasini Das being a widow was entitled to adopt a son even otherwise than under the authority given to

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her under the Will of her deceased husband.      PWs 1, 2 and 6 have given oral evidence relating to the adoption ceremony.  PW1, who  is the  natural father  of the adopted son  has given  evidence  to  the  effect  that  the adoption took  place on  24.8.65 and  the ceremony of giving and taking  in adoption  was performed.  A priest  was  also present and  Kalasa Pooja  Homa, were  performed. PW2 is the priest who  performed the  adoption ceremony  and PW6  is an attesting witness to the deed of adoption which was executed by the  adoptive mother  on 30.9.65.  He was also present at the time of the adoption ceremony.      The first  appellate court  on the  basis of  the  oral evidence as  well as  the two supporting documents held that there was  a valid adoption of the respondent Amaresh Sarkar by the  original plaintiff  No.1. The  Division Bench of the High Court  in appeal, however, held that there was no valid adoption. It  appears to  have drawn an adverse inference on the basis of the fact that the adoptive mother who was alive at the  time when  the evidence  was recorded  by the  trial court, had  not examined  herself. It  is accepted  by  both sides that  at the  time when  the evidence was recorded the adootive mother  was a very old lady 86 years of age and she was too old to be produced in court for giving evidence. The Division Bench  failed to  take into  account the  fact that there were  three other  witnesses who  were present  at the time of  the adoption  ceremony who  were examined -- one of them being  the priest  and the other one being a person who was also  present at  the time when the deed of admission of adoption was executed by the first plaintiff adoptive mother and was an attesting witness to the deed. The mere fact that some other  persons who  were also  present at  the adoption ceremony were  not examined,  cannot be considered as making the adoption  doubtful. There is clear testimony relating to the ceremony  of taking  and giving  the respondent  Amaresh Sarkar in  adoption as  between the  natural parents and the adoptive mother.  The  registered  document  regarding  this adoption which  was executed  within a month of the adoption by the  adoptive mother  should also be given its due weight as evidence  of adoption.  There is  also a  second document executed by  the natural  father after a lapse of two years. Since the  natural  father  after  would  be  interested  in executed such  a document  which would  give an advantage to his natural son the same probative value may not be attached to the  second document.  But the  earlier document which is executed by adoptive mother must be given its due weight. It has been properly proved and is a registered document.      Looking to the entire evidence which is on record which goes to  establish that  adoption took place by the ceremony of giving  and taking,  we  hold  that  there  was  a  valid adoption of  the respondent  Amaresh Sarkar  by the original first-plaintiff Chandan Bilasini Dasi. After the coming into force of  the Hindu  Adoptions and  Maintenance Act of 1956, this adoption  was made in accordance with the provisions of Hindu Adoptions and Maintenance Act.      On adoption  of the  respondent Amaresh  Sarkar by  the widow of  the deceased  Kalikrishna Sarkar,  the adopted son Amaresh Sarkar  sevared his ties with his natural family and became a  part of  the adoptive  family.  As  such,  Chandan Bilasini Dasi  became his  mother and Kalikrishan became his deceased father.  Section 12  of  the  Hindu  Adoptions  and Maintenance Act clearly provides that an adopted child shall be deemed  to be  the child of his 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

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by those  created by the adoption in the adoptive family. As a consequence,  when a  widow adopts  a child, the child not merely acquires  an adoptive  mother but also acquires other relationships  in  the  adoptive  family,  unless  there  is anything  to   the  contrary  in  the  Hindu  Adoptions  and Maintenance Act.      This position is reinforced by Section 14(4) which sets out that where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child. In other words, the family relationship  gets crystalised  as  at  the  date  of adoption. The  child will  be deemed  to be the child of the parent who  adopts the  child and  the existing  or deceased spouse of  that parent (as the case may be), if any, will be considered  the   child’s  father   or  mother.   A   spouse subsequently acquired  by the  adoptive parent  becomes  the step-parent  of   the  adopted  child.  The  adopted  child, however, cannot  divest any  person of  any property already vested in that person (Section 12[c]).      In the  premises, we set aside the impugned judgment in so far  as it  holds that Amaresh Sarkar was not the validly adopted son of Chandan Silasini Dasi and Kalikrishna Sarkar. The appellants  in Civil  Appeal No. 2462/1977 have, through their counsel,  agreed that  the status  of  the  respondent Amaresh Sarkar  as adoptive  son of  late  Shri  Kalikrishna Sarkar and Chandan Dilasini Dasi is not disputed.      In Civil Appeal No. 1245/1977 the parties through their counsel have agreed that the appellant will not question the validity or  the sale-deed  which is  the subject-matter  of this appeal  and it  is declared that the sale-deed is valid and binding.  Respondents will  pay rupees five lakhs to the appellant in  full and  final settlement  of all  his claims against the  respondents. The respondents have requested for some time  for making payment of this amount. We direct that 50% of  the amount  will  be  paid  on  or  before  30th  of November, 1995  and the  balance amount  will be  paid on or before 31st of March, 1996.      The  appeals   are  disposed  of  accordingly.  In  the circumstances, there will be no order as to costs.