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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,

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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

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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

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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

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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

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             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

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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

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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