CHAPTER-V

EFFECTS OF ADOPTION
I. Introduction
Adoption has very important effects on the status and the rights of the
adopted child. These effects are in the natural family as well as in adoptive
family. Before knowing the effects under the present law, the position under old
Hindu Law is discussed.
II. Position Under Old Hindu Law
Upon a valid adoption being made, the adopted boy is transferred from the
family of his birth to the family of his adoption and all his ties in the natural
family are severed and substituted by those created in the adoptive family, as if he
is ‘civilly dead’ in the natural family and is ‘reborn’ in the adoptive family. He is
entitled to all the rights and privileges, as a real legitimate son, in the adoptive
family except in few cases, such as for marriage, subsequent adoption and share
on partition between him and an after bom son; and loses all his rights in his
natural family.
(A) Effects in Adoptive Family
(a) Gotra of Adoptee
An adopted son ceases to be a member of his natural father’s gotra and
becomes member of his adopter’s gotra. However, where a married person is
given in adoption and such person has a son at the date of adoption, the son does
not, like his father, lose the gotra in the family of his birth and does not acquire
the gotra in the family in which his father is adopted. But the wife passes with her
husband into the adoptive family, because according to Shastras, husband and
wife form one body.1
(b) Spinda Relationship and Performance of Funeral Oblation:-
Spinda relationship has two meanings (i) consanguinal relation; and (ii)
connection by ‘Pinda’ or funeral cake.

1 See Mulla's Hindu Law, 18th Ed. P 494.

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(i) According to Vijnanesvara, the spinda relationship is based upon

consanguinity and not on the presentation of funeral oblations. The text of Manu
declaring that ‘Sons given, purchased and the rest retain relations of spinda to the
natural father as extending to fifth and seventh degrees’, is explained in Dattaka
Mimansa as meaning that a consanguinal connection only with the natural family
remains. Thus, the boy adopted retains his consanguinal relation with the natural
family; and on the other hand, no consanguinal tie is formed with the adoptive
family.
(ii) According to the author of the Dayabhaga, spinda relationship means
connection by funeral oblation and it extends to three degrees on the father’s as
well as mother’s side.3 Manu declares:
“A given son must never claim the family and estate
of his natural father. The funeral cake follows the
family and estate; but of him who has given away
his son the obsequies fails”.4
Thus the spinda relationship ceases in the natural family and is created in
the adoptive family. The adopted son offers funeral oblation to his adoptive father
and his ancestors. He presents oblations to his adoptive mother and her ancestors
also. It is declared,5 “The forefathers of the adoptive mother only are also the
maternal grandsires of sons given, and the rest; for the rule regarding the paternal
is equally applicable to the maternal grandsires of the adopted son”. This duty is
limited to that wife of the adopter by whom he was received in adoption; if he
were adopted by the husband alone, and not exclusively to any one wife, then he
performs the parvana sharaddha in honour of the ancestors of all such wives.6
Colebrooke stated; 7 “Although there be two sets of maternal ancestors they

Dattake Mimansa VI. 9.

Dayabhaga XI, I, 39.
Manu IX, 142.
D.M. VI, soi D.C. Ill 117
Cowell’s Hindu Law P. 346
Digest. Of Hindu Law Vol II, Book V, clop IV, See. 8
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should be jointly considered as manes of ancestors and they should be thus named
in performing the Sharaddha”. In J.G. Ghose’s Hindu Law it is stated that an
absolutely adopted son presents oblation to the father and the other ancestors of
his adoptive mother only; is capable of performing the-funeral rites of that mother
only.8
In Anapumi Nachiar Vs. Collector ofTInnevelly9 which was confirmed by
the Privy Council in Anapumi Nachiar vs. Forbes and Minakshi,10 the meaning of
the expression ‘Prathi’ graheethri Yaa Mata’ was taken as receiving mother. West
J. Observed:
“If it is allowable to a Hindu to authorize one of
several wives to take a child in adoption after his
death. It is difficult to understand why he should
have no discretion in selecting one of his wives to
join with him in making an adoption during his life
time”.
Where a man adopts a son in conjunction with two or more wives, the
senior in marriage would be the adoptive mother. If he adopts independently of
his wives, Mr. Mayne says, that there can be little doubt that the senior wife
would be the adoptive mother. In an article in 9 Mad. L J. (Journal) at page 229, it
is stated: “the only rational principle is that though a son may be adopted to a
deceased male even long after his death by his widow under proper authority, yet
there is no such thing as an adoption to a female either during her life time or after
death. She may become mother by fiction at the time of adoption to her husband
but no female could become the mother of a son adopted by or to her husband
either subsequent to her death or prior to her marriage and among the wives
existing at the time of adoption only one of them could become his mother”. This

Vol. Ill P. 200

18 Mad. 277
23 Mad. I
 231

view has been accepted as entitled to great respect by a Full Bench of the Madras
High Court in AIR 1956 Madras 323.
In Uma Shankar Vs. Kali Komul,n where it was held that the adopted son
inherit, from the relatives of his adoptive mother in the same manner as a
legitimate son, adoptive mother was understood as one who has actually taken
part in adoption. In Narasimha Vs. Parthasarthy,12 the Privy Council observed
that the receiving mother acquires in the eye of law the same position as a natural
mother to such an extent that her parents become legally the maternal grand­
parents of the child.
In the case of adoption by a widower, according to Sastri Sarkar, his
deceased wife will be the adoptive mother and her relations the maternal relations
of the boy. But this seems to be contradictory to what be subsequently says that ‘It
would be begging the question to say that the husband’s adopted son becomes the
son of his wife the term’ adoptive mother’ must be taken in its primary meaning
of ‘adopting’ mother and not in the figurative sense of the adopter’s wife.13 A boy
adopted by a widower can have no maternal relations as nothing of the deceased
wife survives in her husband, whereas the body of the husband survives in the
wife and that the fiction of an adoptive mother based on a widower’s adoption
seems to be a misnomer. But in Sunderamma Vs. Venkatasubhier,14 it was held
that wife who does not actually receive in adoption (when she is dead) may also
become ‘adoptive mother’ and the adopted son can inherit to her relations.
Madhavan Nair J. observed:
“The wife becomes the adoptive mother not because
she receives the boy in adoption, but because she is

6 Cal. 256
37 Mad. 199 (220).
Hindu Law of Adoption P. 419 E&F
AIR 1926 Mad. 1203 followed in Sowutharapandian v. P Thenan, AIR 1933 Mad
550
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the wife of the adopter, her husband, who takes the

boy in adoption”.
Similarly, Phillips J. observed: “A Hindu son has to offer oblation not only
to his father’s ancestors, but also to his mother’s ancestors. When, therefore, he is
adopted into a new family, he becomes the son of that family and presumably he
would offer oblations not only to his adoptive father’s ancestors but to his
father’s wife’s ancestors as well. It would be straining the legal fiction of adoption
too far to hold that the boy need no mother at all, although this may possibly be
necessary in the case of an adoption by a bachelor. Wherever possible, therefore,
a mother should be found for the boy, and the fact that such a mother died before
the adoption can be4 no obstacle in view of the fictitious character of the whole
principle of adoption”. Thus, their Lordships, in the quest of finding a mother,
which cannot be satisfied in every case, e.g. in case of adoption by a bachelor,
added a new fiction to the institution of adoption already based on fiction.
Accordingly to Mr. Mayne, where an adoption is made by a widower,
there is no reason or principle why it should date back to an earlier date such as
the death of his wife. The Dattaka Mimansa contemplates a living wife and not
one who is dead. It is imposing a fiction upon a fiction to say, either that the wife
must be deemed to be alive at the date of the adoption or that the adoption should
relate back to the moment of her death.15 For the legal fiction of maternity, there
must be a wife in existence at the time of the adoption to whom the law can point
as the mother. Though the adoption is always to the husband and not to her, but
due to the superiority of the husband, by his mere act of adoption, the affiliation
of the adopted as son of the wife, is complete in the same manner as her property
in any other thing accepted by the husband.16 Thus the wife to become the mother
must be living at the time of adoption.

Hindu Law and usage 11th Ed. 224

Theories of Maternal Affiliation in Adoption, 1948 2 MLJ 9(Journal) P.17
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Following the earlier cases, the Madras High Court in Subramaniam Vs.
Muthia Chettiar17 held that the son adopted by a widower was entitled to claim as
the son and preferential heir of the adopter’s deceased wife. Their Lordships took
the view that by the fiction of relation back, adoption must be deemed to have
been made even during the life time of the adopter’s deceased wife. This
extension of the relation back theory to the case of a woman dying before the
adoption is novel and unprecedented. Legal fictions have their own limitations
and having been conceived to work out and perpetuate justice ought not to be
extended to cases hitherto unknown on ground of justice and analogy, especially
to disturb vested rights. But all these decisions have been now over-ruled by
another Full Bench of the same High Court in Sivagami Vs. Somasunderam19 and
it has been held that a person cannot affiliate his deceased wife as the adoptive
mother of the boy adopted by him. Thus in the case of adoption by a widower the
adopted boy will have no mother and thus will perform funeral obsequies on the
paternal side alone. He will have no maternal grand-sitres.
The child, thus is completely transferred from the natural family as if he is
dead and is transplanted in the adoptive family as if he is actually bom in it. He
observes pollution on the birth and death of any member in the adoptive family
only.20 The ties of blood, however, between him and the members of the natural
family cannot be severed and for this reason he cannot marry those whom he
could not marry had he continued in the natural family. So as far as the
prohibition for marriage are concerned, he is considered as a child of both the
families. An adoption once made cannot be revoked or cancelled and the adopted
child cannot renounce his status as adopted son.

AIR 1926 Mad 1203, AIR 1933 Mad 550 (F.B)

RaghavaChariar, Hindu Law, P.169.
AIR 1956 Mad. 323.
Sarkar’s Hindu Law of Adoption P. 388. Some writers, However makes an
exception in the case of the natural parents.
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(c) Right of Inheritance in Adoptive Family

(i) Succession Exparte paterna
Subject to certain exceptions, an adopted son is entitled to inherit in the
adoptive family as folly as if he were a natural-bom son, both in the paternal and
in the maternal line. He is entitled to inherit to his adoptive father, and to the
father and grandfather and other more distant lineal ancestors of the adoptive
father. He is also entitled to inherit to the adoptive father’s brothers, the adoptive
father’s brother’s sons and other collateral relations.21 Conversely, the adoptive
father and his relations are entitled to inherit to the adopted boy, as if he were a
son bom in the adoptive family.
(ii) Succession Exparte Materna ;
An adopted son is entitled to inherit to his adoptive mother and her
relations, as, for instance, her father and brothers. Conversely the adoptive
mother and her relations are entitled to inherit to him.22
Even if the wife of the adopter was dead at the date of adoption, the
adopted son becomes her son by virtue of the adoption, and is entitled as such to
inherit to the relations in her father’s family.23 However, such an adopted son
cannot divest the heirs of the deceased mother of property to which they had
already succeeded before the adoption look place.24
Where a Hindu, having two or more wives, makes an adoption in
conjunction with one of them specially selected for the purpose, the wife so
selected, ranks as the adoptive mother, and the other wives as mere stepmothers.
The adopted son inherits only to the adoptive mother and to her relations, and she
alone and her relations can inherit to him.

Padma Kumari v. Court of words (1882)8 Cal 302, 8 IA 239; Chanamussar v.

Bisbesbwar (1926)5 Patl. 777,101 IC209, AIR 1927 Pat. 61 (Mithila).
Kali Komul v. Uma Sunker (1884)10 Cal. 232, 10 IA 138, Radha Prasad v. Roser
Marti (1906)33 Cal 947; Dattatrayar v. Gangabai (1922)46 Bom. 54, 77 IC 17,
AIR 1522 Bom. 321. Sowubarapandian Ayyartgar v. Perintent, Tbeivart (1933) 56
Mad. 75 145 IC 534, AIR 1933 Mad. 550.
Sundarama v. Venkatasubba (1926)49. Mad 941, AIR 1926 Mad. 1203.
Sivagami Achiv. Samasundaram, AIR 1956 Mad. 323.
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The same principle applies when an adoption is made by one of several

•\c

widows in pursuance of an authority of an authority left to her alone. In other

cases, it is not settled whether the adopted son inherits to all the wives of the
adoptive father and their relations.26 The High Court of Madras has held that
even if two wives are associated in the adoption ceremony, the senior wife by
reason of the special status and priority given to her becomes the adoptive mother
for tracing the line of succession ex parte maternal from the adopted son.27
(d) Son Born After Adoption and Right of Inheritance
The statement of law that an adopted son is entitled to inherit just as if he
were a natural bom son, is subject to the exception mentioned below:
Where a son is bom after adoption to the adoptive father; (a) the adopted
son does not, on a partition between him and the after-bom natural son, share
equally with him as he would have done if he were a natural son, but he takes:
(i) in Bengal, one-third of the adoptive father’s estate;
(ii) in Benares, one-fourth of the estate;28 and
(iii) in the Bombay and Madras states, one-fifth of the estate;29
(b) if the estate is impartible, the aurasa son alone succeeds to it.
Except as previously mentioned, an adopted son is entitled to the same
share as a legitimate son.
Among Shudras in Madras and Bengal, an adopted son shares equally with
the after-bom natural son;30 in Bombay, he takes one-fifth of the estate.31 In

Annapurni v Forbes (1899) 23 Mad 1,26 IA 246.

Mayne’s Hindu Law, s. 167.
Venugopala Reddiar v. Krishanaswamy AIR 1971 Mad. 262.
A different view has been expressed in Moti v. Lachman AIR 1960 Ra. 122, 10
Raj 225.
Giriappa v. Ningappa (1893) 17 Bom 100; Melappa v. Guramma AIR 1956 Bom.
129; Ayyavu v. Niladatchi (1862)1 Mad HC 45.
Perrazu v. Subbarayadu (1921)48 IA 280, 44 Mad 656, 61 IC 690, AIR 1922 PC
71 Asita v. Nirode (1916)20 CWN 901, 35 IC 127, AIR 1917 Cal. 292.
Tukaram v. Ramchandra (1925)49 Bom. 672, 89 IC 984, AIR 1925 Bom. 425;
Guramna Raj 251,10 Raj. 160.
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central Provinces and Rajasthan, where the Benares school prevails, he takes one-
fourth of the estate.32
The same rules apply on a partition in the lifetime of the father. Thus, in
Madras, the father and the after-bom natural son will each take four shares and
the adopted son one share in the whole estate.
(e) Right of Adopted son in Corparcenary Property
An alienation of coparcenary property, which was valid when it was made,
is binding upon a son adopted after the date of alienation.
An alienation by a coparcener of his share in the coparcenary property
made without legal necessity or in excess of his interest in the coparcenary
property, is binding upon a coparcener, adopted after the date of the alienation.33
Where an adoption is made by a member of a joint family governed by
Mitakshara law, the adopted son becomes a member of the coparcenary from the
moment of his adoption, and the adoptive father has no power either by deed or
will, to interfere with the rights of survivorship of the adopted son in the
coparcenary property. The same principle applies where an adoption is made by a
sole surviving coparcener, subject, however, to any agreement binding the
adopted son.34
These provisions applies to ancestral property in cases governed by
Mitakshara law. Just as the father cannot by deed or will defeat the rights of
survivorship of a natural bom son, so he cannot defeat the rights of survivorship
of an adopted son.
Where the last male owner makes a valid bequest of his property and also
gives his widow power to adopt, the adopted son is bound by the disposition in
the will. If, under the will, the widow is entitled to a life estate in the property,

Laxman v. Bayabai (1955) Nag. 656, AIR 1955 Nag 241; Anandi Lai v. Other AIR
196 Raj. 251,10 Raj 160.
Basawantappa v. Mallappa (1939) Bom. 245, AIR 1939 Bom. 178.
Vitla Butten v. Yamenamma (1874)8 Mad HC 6; Venkatamarayana v.
Subbammal (1915)43 IA20, 39 Mad. 107, 32 IE 373, (1917)2 Lah. 39, 59 IC 256,
AIR 1921 Lah 147,
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and the adopted son to a vested remainder and to a certain sum for his
maintenance, it is competent to him to convey his interest to the widow and thus
enlarge the life-estate into an absolute estate in consideration of the increase of
the amount of maintenance.35
Where a Hindu ‘A’ Adopted a son' and by a registered deed of adoption,
provided that his wife should enjoy the property in her own right for her life, it
was held that the deed did not affect the rights of a son adopted by the widow of
A’s pre-deceased undivided brother, as it could not be regarded as a family
arrangement, as far as the second adopted son is concerned and he was entitled to
his share.36
(f) Adoption by Widow and Doctrine of Relation Back
There has been a controversy as to the actual date of operation of
adoption-with regard to the rights of heirship of the adopted son to the property of
his adoptive father and his collaterals. So far the heirship to the property of his
adoptive father is concerned, the adopted son’s rights of heirship were clearly
defined. The adopted son was considered to have been in existence at the time of
the death of his adoptive father, and he was consequently the heir to his pre­
deceased adoptive father’s property. He being put in the position of a posthumous
son. The doctrine of relation back which originally meant the relation with the
death of the father was on logical grounds considered to relate back to the death
of a collateral also, and the consequence of such relation back was to divest a
person who had not only inherited the property of the adoptive father but also the
property of a collateral which got vested in another heirs who would have not
inherited the property had the adopted son been adopted before the death of a
collateral. The controversy as to the divesting of a collateral’s property had
engaged the attention of the judiciary for quite a very long time. It was
understandable that for the purpose of diverting the estate of adoptive father, the

35
See Mulla, Hindu Law-1 18th ed. P. 499,
36
Laxmibai v. Keshavrao (1941) Bom. 306, 1971 IC 192, 43 Bom. Lr 214, AIR
1941 Bomm. 193.
 238

adopted son relates back to the date of the adoptive father’s death. It was in 1886
that Judicial Committee of the Privy Council in Bhubaneswari Vs. Nilkomul held
that the right of the adopted son relates back to succeed to property of the
adoptive father but it does not extend to the property of a collateral.
But there have been different opinions in this regard
In Pratapsingh Shivasingh Vs. Aggarsinghji,37 Ameer Ali J observed’s
“Again it is to be remembered that an adopted son is
the continuator of his adoptive father’s line exactly
as an Aurasa son, and that an adoption, so far as the
continuity of the line is concerned, had a
retrospective effect; whenever the adoption may be
made there is no hiatus in the continuity of the line
by adoption impossible”.
Thus when a widow adopts a son to her husband, the adopted son is held
entitled to divest her of the estate of the adoptive father vested in her.38 But in
case of an adoption by a widow of a deceased coparcener, it was held in Chandra
Vs. Gojarbai39 that .the power to make an adoption so as to confer a right on the
adopted son could be exercised only so long as the coparcenary of which the
adoptive father was a member subsisted, and that when the last of the coparceners
died and the properties thereafter devolved on his heirs, the coparcenary had
ceased to exist, and that, therefore, a widow of a deceased coparcener could not
adopt so as to divest the estate which had vested in the heirs of the last
coparcener.
The question of relation back was again considered by the Privy Council
in Amarendra Singh v. Sanatan40 case. This case related to imparitable Zamidari.
The last holder Raja Bibhudendra died on 10th Dec. 1922 and a collateral

AIR 1918 PC 192 at P. 194, see also PrahladVs. DamodharMR 1958 Bom. 79.
Vellanki Venkota Vs. Venkataram 4 I .A. 1(P.C.)
14 Bom. 463.
AIR 1933 PC 155.
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succeeded to the Raj. On Dec. 18, 192, the mother of last holder adopted
Amarendra to her husband. The question to be decided was whether he could
divest the estate vested in collateral and the answer was given in positive. It was
held by the council that the validity of an adoption did not depend on whether the
adopted son could divest an estate which had devolved by inheritance or not. In
Balu v. Lahoo,41 the full bench of the Bombay High Court held that in such cases
the adoption will be invalid, but the estate which had devolved upon the heir
could not be divested.
However, in Anant v. Shankar42 the Privy Council dissented from this
view. In this case Bhikappa died in 1905 leaving his widow Gangabai and an
unmarried son Kesar. In 1908, Narayan, the divided brother of Bhikappa died
leaving a widow but no issue. The widow of Narayan remarried, the two plots of
Narayan which were his separate property devolved by inheritance on Keshav as
being his nearest reversioner at the date of remarriage. In 1917 Keshav died
unmarried and properties devolved on Shankar, somewhat remote collateral, who
obtained possession of suit properties from the collector in 1928 despite
Gangabai’s opposition. In 1930 Gangabai adopted the Appellant Anant as a son
of her deceased husband Bhikappa. In 1932 as a next friend of her adopted'son, a
suit for recovery of possession of the property was filed by Gangabai.
It was held by the Privy Council that the coparcenary must be held to
subsist so long as there was in existence a widow of a coparcener capable of
bringing a son into existence by adoption and if she made an adoption, the rights
of the adopted son would be the same as if he had been in existence at the time
when his adoptive father died.
After reviewing the case law the Judicial Committee of the Privy Council
held; “If the effect of an adoption by the mother of the last male owner is to take
his estate out of the hands of his collateral who is more remote than a natural

AIR 1937 Bom. 279.

AIR 1943 P.C. 196.
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brother would have been, and to constitute the adopted person the next heir of the
last male owner, no distinction can in this respect be drawn between property
which had come to the last male owner from his father and any other property
which he may have acquired. Keshav’s separate watan property devolves not on
his mother, who would be his heir at the general law, but on the nearest male in
the line of heirs; and if the appellant’s adoption as son to Bhikappa puts him in
that position, his right to succeed cannot be limited to such watan property as
Keshav derived from Bhikappa. On this ground the appellant’s suit succeeds as
regards the two parcels of land which Keshav inherited from Narayan”.
The decision as to the diversting of property from Shankar inherited in
1908 from Narayan, a remote collateral, has the effect that the adopted son is
considered to be in existence in the family of his adoption from the date of the
death of his adopting father which made him entitled to the property not only of
his adoptive father but also to claim as an heir of any relative to whom he would
have been entitled to inherit, if he would actually, that is infact have been in
existence. The fiction that related back to the date of the adoptive father death has
given rise to another fiction that the adoption also related back to the date to the
death of a collateral. A fiction over a fiction has been created by the ruling of
Anand v. Shankar.
The Privy Council stretched: the fiction of relation back to its logical
consequences and held that a valid adoption by a widow would divest not only the
property of his adoptive father but ever the property of a collateral which got
vested in other heir because the adoption was not made at that time when the
collateral died. This case has completed the full circle in the sphere of relation
back jurisprudence. Therefore the doctrine of relation back was applied not only
to the joint family estate but also to properties which had devolved by inheritance
a collateral.
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This principle was re-affirmed in Neelangouda v. Ujjan Gouda.43 The

question of relation back came for consideration before a full Bench of High
Court in Jivaji v. Hanmant.44 In this case the claim was to the property of a
collateral to whom he was entitled to succeed as a preferential heir and the ground
of the claim was the decision in Anant v. Shankar 45 It was held that the decision
in Anant v. Shankar did not intend to alter the previous law that an adopted son
could not divest properties which had been inherited from a collateral prior to the
date of adoption and thus the decision of Bhubeswari v. Nilkomuf6 was
reaffirmed. This conclusion of the Bombay High Court is in consonance with
what the Privy Council itself said in Anant v. Shankar, through George Rankin,
when he observed:
“Neither the present case nor AIR 1933 P.C. 155 ‘brings into question the
rule of law considered in 12 Ind. App. 137 (P.C.)’... their lordships say nothing as
to these decisions which appear to apply only in cases of inheritance.” The
Supreme Court, in Srinivas v. Narayan41 approved the view taken by the Bombay
High Court in Jivagi v. Hanmanf8 and dissented from the contrary taken by Privy
Council in Anand v. Shankar49. On this point the court explained the meaning of
‘collateral’.
In the Oxford Dictionary the word “Collateral” is defined as meaning
“descended from the same stock but not in the same line”. The reason behind the
rule that there should be continuity in line does not warrant its extension to
collaterals. Nor is there any authority until we come to the decision in Anant’s
case, which applied the theory of relation back to the properties inherited from
collaterals. With reference to them, the governing principle was that inheritance

AIR 1948 P.C. 168.

AIR 1950 Bom. 360.
AIR 1943 PC 196.
12 Ind. App. 137 (P.C.)
AIR 1954 SC 379.
AIR 1960 Bom. 360 (FB).
(1943)70 IA 232.
 242

can never be in abeyance, and that once it devolves on a person who is the nearest
heir under the law, it is thereafter not liable to be divested. The Supreme Court
further referred to the authority of Mulla’s Hindu Law and again discussed the
relevant aspect of the principle of relation back.
“On the death of a Hindu, the person who is then his
nearest heir becomes entitled at once to the property
left by him. The right of succession vests in him
immediately on the death of the owner of the
property. It cannot, under any circumstances,
remain in abeyance in expectation of the birth of a
preferential heir, where such heir was not conceived
at the time of the owner’s death”. “Where the estate
of a Hindu has vested in a person who is his nearest
heir at the time of his death, it cannot be divested
except either by the birth of a preferable heir such
as a son or a daughter, who was conceived at the
time of his death, or by adoption in certain cases of
a son to the deceased.”
The Supreme Court found that the Privy Council had widened the scope of
the doctrine of relation back by allowing Anant entitled to the properties inherited
by Keshav from Narayan. In the opinion of the Supreme Court it was difficult to
follow the Anant’s case and therefore the Supreme Court did not find it difficult
to expressly curtail the scope of the relation back doctrine propounded in Anant’s
case and therefore Anant Vs. Shankar was partially overruled by the Supreme
Court.
The fact is, as frankly conceded by the learned Judges, they were puzzled
by the decision in Anant’s case and as it was an authority binding on the Indian
Courts, they could not refuse to follow it, and were obliged to discover a
distinction. This court, however, is not hampered by any such limitation, and is
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free to consider the question on its own merits. In deciding that an adopted son is
entitled to divest the estate of a collateral, which had devolved by inheritance
prior to his adoption - Anant’s case went for beyond what had been previously
understood to be the law. It is not in consonance with the principle well-
established in Indian Jurisprudence that an inheritance could not be in abeyance,
and that the relation back of the right of an adopted son is only ‘quoad’ the estate
of the adoptive father.
Moreover, the law as laid down therein leads to results which are highly
inconvenient. When an adoption is made by a widow of either a coparcener or a
separated member, then the right of the adopted son to claim properties as on the
date of the death of the adoptive father by reason of theory of relation back is
subject to limitation that alienations made prior to the date of adoption are binding
on him, if they were for purposes binding on the estate. Thus, transferees from
limited owners, whether they be widows or coparceners in a joint family, are
amply protected. But no, such safeguard exists in respect of property inherited
from a collateral, because if the adopted son is entitled on the theory of relation
back to divest that property, the position of the mesne holder would be that of an
owner possessing a title defeasible on adoption, and the result of such adoption
must be to extinguish that title and that of all persons claiming under him. The
alienees from him would have no protection, as there could be no question of
supporting the alienations on the ground of necessity or benefit. And if the
adoption takes place long after the succession to the collateral had opened - in
this case it was 41 years, thereafter- and the property might have meanwhile
changed hands several times, the title of the purchasers would be liable to be
disturbed quite a long time after the alienations.
Thus their lordship observed :
“We must hesitate to subscribe to a view of the law
which leads to consequences so inconvenient. The
claim of the appellant to divest a vested estate rests
 244

on a legal fiction, and legal fictions should not be

extended so as to lead to unjust results. We are of
opinion that the decision in Anant’s case in so far as
it relates to properties inherited from collaterals is
not sound, and that in respect of such properties the
adopted son can lay no claim on the ground of
relation back.”
The controversy in the case law as to the doctrine of relation back thus
was finally settled in 1954 by the Supreme Court. The Principles deduced from
this decision have been summarized by the Supreme Court in Krishnamurthi v.
Dhruwaraj.50 The case alongwith other cases has been separately discussed in
this chapter.
(B) Effects of Adoption in Natural Family
On adoption, the son is totally severed from his natural family in respect
of all civil rights and obligations. He ceases to have any right in the coparcenary
property, and the members of his natural family can not inherit from him, nor he
is liable for their debts. In case of adoption by a widow, the child is absorbed in
the adoptive family to which widow belongs. The child is tied with the
relationship of sonship with the deceased husband of the widow. All other types
of relationship are established in the adoptive family. Thus, when either spouse
adopts a child, all the ties of the child in the family become completely severed
and replaced by those created by adoption in the adoptive family. If at the time of
adoption some property is vested in the child, the child can’t be divested of that
property. If the child adopted is a member of Mitakshara joint family, he is
divested of his rights in the coparcenary property. The adopted child can’t marry
any female in the natural family whom he could not have married if not given in
adoption.

AIR 1962 SC 59.

 245

III. Position Under Modern Hindu Law

Section 12 of the Act deals with the effects of adoption.
Section 12 runs as under:
“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-
(a) the child cannot marry any person whom her or she could not have
married if he or she had continued in the family of his or her birth.
(b) Any property which is vested in the adopted child before the adoption
shall continue vest in such person subject to 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 is vested
in him or her before the adoption.”
If we analyse this section we come to the conclusion that the adoption of a
child has its effect in the natural family as well as in the adoptive family because
by adoption, a child is completely transferred from one family to the another
family.
(A) Effects in the Natural Family
The adoption of the child will have the following effects in the family of
the birth of the child
(a) Relationship with the members of the natural family:
For all secular, religious and social purposes the child ceases to be the
child of the natural family. The father and mother ceases to be parents of the
child and all the ties in the family of the birth are snapped. The natural parents’
rights of guardianship and custody come to an end with effect from the date of
adoption. Even if the child’s age is below five years, his natural mother cannot
 246

claim the custody of the child to which she would have been entitled otherwise,
under proviso to section 6(a) of the Hindu Minority and Guardianship Act, 1956.
The child who has been given in adoption has only one type of relationship in the
natural family even after adoption. The adopted child cannot marry any person in
his/her natural family whom he/she could not have married if he/she had not been
given in adoption.
(b) No Divesting of Property
Proviso (b) to section 12 of the Act provided that any property which is
vested in the adopted child before adoption will continue to be vested in him/her
subject to the obligation if any attached to the ownership of such property. Thus,
in property which has been inherited by a child before adoption or has been gifted
or acquired in any other manner before adoption will continue to be the property
of the child even after adoption. For instance, a person dies leaving behind two
sons X and Y and a widow W, all these persons inherited property of the deceased
according to the provision of the Hindu succession Act, 1956. Suppose X is given
in adoption by his mother W, the property inherited by the owner from father will
continue to be vested in the son even-after adoption. There is no controversy if an
adoptee is already vested with any property before adoption which may be got by
inheritance or by partition.
In Harchand v. Ranjit,51 the natural father of the adopted son died before
he was given in adoption, and thereby he succeeded to the property. Thereafter,
he was given in adoption since the natural father’s property vested in him on his
father’s death, it was held that his natural brother could not divest him of the
property, which he inherited from his natural father. Similarly in Revti v. Board
of Revenue, Ajmer,52 the father died in 1918, and the son was given in adoption in
1938. It has held that upon adoption, his right in his father’s property will not be
affected. Even his own statement to the effect that upon adoption he has lost

AIR 1987 P & H 259.

1998 AIHC 4507 (Raj.)
 247

right, title and interest in the properties would not affect the right already vested
in him.
There is controversy when a son who is a member of Mitakshra joint
family and if given in adoption will be entitled to his undivided interest in
Mitakshara joint family property or not? Before the passing of The Hindu
Succession (Amendment) Act, 2005, in a Mitakshara joint family, a son, grandson
and great grandson, being coparcener have interest by birth in joint family
property. This interest is not definite. It keeps on fluctuating by deaths and births
in the family. Till partition nobody can say what is die quantum of his interest in
joint family property. The-Andhra Pradesh High Court in Nayudamma Vs. Govt,
of Andhra Pradesh,53 has held that the interest of a male child in Mitakshra
coparcenary would continue vest in him as if he had separated from the
coparcenary. However, in Devgonda v. Shawgonda54 the Bombay High Court
differing from Andhra Pradesh High Court held that Section 12(b) is not attracted
and the adoptee lost his coparcenary right in the family of birth relying upon the
decisiosn of the Supreme Court in Vasant v. Dattu55 and Agalawe v. Angalawe56
and decision of the Bombay High Court in Nalavada vs. Ananda Gov. Chavan51
that if there was a coparcenary in existence in the family of birth the adoptee can
not be said to have any vested property in the joint family. In Santosh Kumar v.
Chadnrakishore,58 D had two sons C and S, S was given in adoption. After
sometime S fell apart from his adoptive father and claimed share in the property
of the natural father. Dissenting from decision of A.P. High Court59 the division
bench of Patna High Court held.60 “A coparcener has right to partition of the
coparcenary property, he can even bring about separation in status by unilateral

1981 AP 19.
AIR 1992 Bom. 189.
AIR 1987 SC 389.
AIR 1988 SC 849.
1981 Bom. 109, Padman v. Anand Singh 1997(2) HCR 132 (MP).
AIR 2001 Pat. 125 (DB).
Supra Note 53.
Supra Note 58 at 128.
 248

declaration of his intention to separate from the family and enjoy his share of the
property after partition. But it only after such partition that property ‘vests’ in
him.... While the family remaining undivided, one cannot predicate the extent of
his share.....”.
But any property inherited by a son from father under the Hindu
Succession Act as class I heir now is held to his separate property in his hands and
not joint family property.61 They observed, 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 was conferred in respect of a particular property but it is not
the position in case of coparcenary property. The coparcenary 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.
According to Mayne62 the decision of A.P. High Court is not correct. The
expression “property which vested in the adopted child” would include his right
by birth in the coparcenary property. Property is an expression of wide import
and will include the rights in property. The reliance on the decisions of the
Supreme Court under Section 12 proviso (c) is not warranted. Under the proviso
the adoptee does not divest any person of any estate which vested in him or her
before the adoption. All that the decisions laid down was that when he becomes a
member of the coparcenary he gets an interest in the joint family property. That
does not mean that he divests any person of any estate. As the Supreme Court in
Vasant Vs. Dattu63 observed “the joint family continues to hold the estate but with
more members than before there is no fresh vesting or divesting of any estate in
any one.” It is to be noted that when the adoptee takes any rights he has also to
fulfill the necessary obligations attached to the property including the

C. W.T. v. Chander Sen AIR 1986 SC 1753, Yudhisterv. Ashok AIR 1987 SC
558.
62
Mayne, Hindu Law and usage 15th ed. P. 571.
63
1987 SC 389.
 249

maintenance of relatives etc. This does not include any personal obligation or
liability incurred by him as a member of the natural family.64
According to learned editor of Mulla’s Hindu Law, the undivided interest
of a Mitakshra Coparcener is not vested him and consequently on his adoption his
interest will remain in the Joint Family. Under Dayabhaga school there is no
coparcenary in this regard. The coparceners have a definite share in the joint
family property. Therefore, if a Dayabhaga coparcener is given away in adoption,
he would continue to retain his share in the coparcenary property.65
(B) Effects in the Adoptive Family
The adoption of a child brings about some consequential effects in the
adoptive family also. His position for all intents and purposes is like that of a
natural bom child. He enjoys all the rights, privileges and obligations in the
adoptive family as are enjoyed by the natural bom child.
(a) Relationship with members of Adoptive family.
By adoption all types of relationship in the adoptive family are
established. This means the adopted child is not merely the child of adoptive
parents. But he/she is also related to all relations on the mother’s side as well as
the father’s side as if the child has been natural bom child of the family. Thus,
the father’s and mother’s parents are the grand parents of the child. The adoptive
parents daughter is his sister and so on. However, the relationship in the adoptive
family will depend upon whether a person has been adopted by a married,
unmarried or divorced male or female. For instance, if the male child had been
adopted by an unmarried female, the child will have only one line of relationship
i.e. the maternal line and if the child has been adopted by a unmarried male or
divorcee or widower, the child will have only the parental line of his relationship.
This rule is subject to two exceptions, firstly, that the adopted child cannot marry
any person whom he/she could not have married, had the child continued to be a

Supra Note 62.

See Mulla, Hindu Law, Volume 2,18,h Ed. P. 554.
 250

member of the natural family and secondly, the child shall not divest any person
from the property rights which one possessed prior to his adoption.
Child belonging to unreserved category going in adoption to a person
belonging to the reserved category, will not be entitled to benefit of reservation by
virtue of such adoption.
(b) Guardianship, inheritance and maintenance
After adoption, the adopted child is to be taken care of by the adoptive
parents and they are natural guardians of their adopted minor child. The position
of the child in respect of inheritance and maintenance is the same as that of the
natural bom child. If there are children, adopted as well as natural bom, they will
inherit equally. The adopted child cannot be discriminated in any manner as far
as the other legal rights are concerned. The adopted child can claim maintenance
even against his adoptive parents. The adopted child is also liable to maintain all
those persons whom natural bom child has obligation to maintain. In Nand
Kishore v. Bhupinder,66 it was held by the court that the adopted child rights of
maintenance cease on his attaining majority. In Inder Singh v. Kartar Singh,67 it
has been held by the court that the adopted son can also exercise the right of pre­
emption. It may be mentioned here that under the Punjab Pre-emption Act father
and son includes adopted son and adopted father.
(c) Adoption of a son/daughter by male coparcener
If a coparcener of a Mitakshra Joint Family adopts a son, the adopted son
becomes coparcener with other coparceners in the family. He will have interest
by birth in the joint family property like that of a natural bom son. The adopted
son has right of partition. He has also the right to challenge improper alienation
of property if made by the Karta of the joint family. He is also subject to other
liabilities of a natural bom son also. After the passing of the Hindu Succession
(Amendment) Act, 2005, the coparcener’s daughter has also been made a

AIR 1996 Calcutta 181.

AIR 1996 Punjab 258.
 251

coparcener. She enjoys the same rights which are enjoyed by a son. Thus, she
will have also the right of partition if a daughter is adopted by a coparcener of
Mitakshra Joint Family.
(d) Divesting of Property the Theory of Relation Back
Section 12(c) specially laid down that the adopted child shall not divest
any person of any property, which is vested in him or her before adoption. Under
Old Hindu Law, divesting of property on adoption was a very complicated affair.
Under the Modem Hindu Law, the source of litigation has been done away with
by laying down that the adopted child shall not divest any person of the property
vested in him or her before adoption. For instance, A died leaving behind his
widow and two daughters. On his death, the widow and the daughters will
equally inherit the property left by the deceased according to the provisions of
Hindu Succession Act, 1956. Each will get l/3rd share which will be vested in
them immediately on the death of A. If now the widow adopts a son B, adopted
son can not divest the adoptive mother and the sisters from any property, which is
vested in them before adoption. The present Act has expressly abolished the
doctrine or relation back. However, this doctrine has again been revived through
judicial decisions. There is a long list of case decided by the various High Courts,
which are not uniform but have expressed conflicting views. As already
discussed the Supreme Court started bridling the hitherto unbridling doctrine of
relating back in Shri Niwas v. Narain case68 where the right of the adopted son to
divest a collateral heir was negatived. The court held that after the passing of the
Act, the relevance of the doctrine of relation back was rendered insignificant and
the adopted son had hardly any necessity to retain relationship with his deceased
adopted father with a back date. The important question regarding adopted son
right or property of adoptive father and collaterals came for consideration before
the Supreme Court in Krishna Murti Vasudev Rao Deshpandey v. Dhruvaraj.69 In

AIR 1954 SC 59.

AIR 1962 SC 59.
 252

the present case, one B died in 1882 pre-deceasing his father N and leaving
behind his widow T. The K daughter of N succeeded to the property as foil
owner on the death of her father, according to the Hindu law in the area in which
the property in suit was situated. K died in 1933 and her son V, was who
succeeded to her property also died in 1934, leaving behind two sons, appellant T
adopted D, the respondent in 1945. D there upon brought a suit for recovery of
property from the appellants on the basis that adoption had the effect of divesting
them of property. The title of K, the daughter of N, and appellants was S
defeasible on the adoption of a son by T. The fact that K inherited of her father
absolutely does not effect this question of title being defeated on the adoption of a
son by T. The character of the property does not change, as suggested for the
appellants, from coparcenary property to self-acquired property of K so long as T,
the widow of the family exists and is capable of adopting a son, who becomes a
coparcener. It was held by the Court
“if an owner of property possesses a title defeasible
on adoption, not only that title but also the title of
all persons claiming under him, will extinguish on
the adoption.”
The heir of a collateral succeeding to the sole surviving coparcener
inherits the property absolutely, but subject to defeasance. The right in the
property devolves on his heir, who must consequently take that property
absolutely, but still subject to defeasance, as no better title could have been
inherited so long as there was the possibility of the defeasance of the absolute title
by a widow of the family of the last surviving coparcener adding a member to the
coparcenary by adopting a son to her deceased husband.
The case of an adopted son’s claiming to divest that heir of a collateral,
who died before the adoption took place, of the property inherited from the
collateral, is different from foe case of his claiming the property which originally
belonged to the adoptive father but had devolved on a collateral and, after the
 253

death of the collateral, which took place before the adoption, devolved on a heir
of the collateral. In the former case, the claim is to the property of the collateral,
while in the latter case it is to the property of the adoptive father, which by force
of circumstances, had passed through the hands of a collateral.
On basic fact deserves attention. The adopted son’s claim was as heir to
his grandfather whose property devolved, on death, on his daughters, the adoptive
father having died long before the grandfather and the adoption having taken
place long after the grandfather’s death. The Court took the view that the
daughters who took as heirs did so on a defeasible title. For one thing, there was
no coparcener alive and no joint family - either as a whole or even a branch
thereof- at the time of the adoption and the adopted son displaced those who got
the title only in the absence of a son. Secondly, inheritance stands on a different
footing from alienation - or, at any rate, the erosion of the relation back doctrine
has not affected claiming back from direct heirs. [The adopted son’s claim to
divest collateral heirs has been negatived in Simivas case, 70 IA 232].
Krishnamurthi’s crucial ratio, giving it full scope, is that property inherited
absolutely but subject to defeasance, fails when the divesting event occurs, and
the character of the property does not change from coparcenary property to self-
acquired property so long as the possibility of defeasance by a widow of the last
coparcener, by adding a member by adoption exists.
The principles laid down by the Supreme Court and its observations have been
summarized as under:
(i) An adopted son is held entitled to take in defeasance of the rights
acquired prior to his adoption on the ground that in the eyes of law his
adoption relates back, by a legal fiction, to the date of the death of his
adoptive father, he being put in the position of a posthumous son.
(ii) As a preferential heir an adopted son (a) divests his mother of the
estate of his adoptive father; (b) divests his adoptive mother of the
 254

estate she gets as an heir of her son who died after the death of her
husband.
(iii) A coparcenary continues to subsist so long as there is in existence a
widow of a coparcener capable of bringing a son into existence by
adoption; and it the widow made an adoption, the rights of the adopted
son are the same as if he had been in existence at the time his adoptive
father died and that his title as coparcener prevails as against the title
of any person claiming as heir to the last coparcener.
(iv) The principle of relation back applies only when the claim made by the
adopted son relates to the estate of his adoptive father. The estate may
be definite and ascertained as when he is the sole and absolute owner
of the properties, or it may be fluctuating as when he is a member of a
joint Hindu family in which the interest of the coparceners is liable to
increase by death; or decrease by birth. In either case, it is the interest
of the adoptive father which the adopted son is declared entitled to
take as on the date of his death. This principle of relation back cannot
be applied when the claim made by the adopted son relate not to the
estate of his adoptive father but to that of a collateral. With reference
to the claim with respect to the estate of a collateral, the governing
principle is that inheritance can never be in abeyance, and that once it
devolves on a person who is the nearest heir under the Law, it is there
after not liable to be divested. When succession to the properties of a
person other than an adoptive father is involved, the principle
applicable is not the rule of relation back but the rule that inheritance
once vested could not be divested.
(v) The estate continues to be the estate of the adoptive father in
whosever’s hand it may be, i.e. whether in the hands of one who is
absolute owner or one who is a limited owner. Any one who inherits
the estate of the adoptive father is his heir, irrespective of the
 255

inheritance having passed through a number of persons, either being

the heir of the previous owner.
The question of relation back again come before various High Courts in
various cases. The main question involved was whether the son adopted by a
widow is also to be treated as the son of her Late husband also. The question
came before the Bombay High Court in Ankush v. Jenabai70 where a Hindu, N
died leaving behind two widows, L and T and a daughter J from L. The senior
widow, L, died in 1938. The junior widow, T, adopted the plaintiff as her son in
1957. The plaintiff filed a suit for the recovery of possession of all the properties
of N, including those alienated by the widows, on the plea that he was not merely
the adopted son of T but also of N. Applying the provisions of section 12 of the
Hindu Adoptions and Maintenance Act, 1956, the trial court came to the
conclusion that the child was the adopted child only of T and not of N, since
under that section the adoption was effective from the date on which it is made.
The Trial Court was clearly of the view that the doctrine of relating back was no
longer operative. On appeal, the Bombay High Court came to the opposite
conclusion.
Building his arguments on the premise that “the adopted child is for all
purposes absorbed in the adopting family”,71 Desai, J. came to the conclusion that
an adopted child of the widow was absorbed in the adoptive family to which the
widow belonged, i.e. the family of her deceased husband, the adopted child being
“tied with the relationship of sonship with the deceased husband of the widow and
the other collateral relations of the husband of the widow”. With least hesitation
the learned judge observed:
“We have no doubt that on a widow adopting a son
the necessary consequence that arise under the

70
AIR 1966 Bom. 174.
71
Ibid at 178.
 256

provisions of the Act is that the child would be the

adoptive son of the deceased husband”.
The Allahabad High Court also reached the same conclusion as on slightly
different facts in Subhash Misir v. Thagainisir.12 In this case also, after the death
of the husband, the properties were not in the possession of the widow, but in the
possession of a collateral of the husband, who claims the property in his own
right. Originally, it was widow’s right for declaration and possession of property,
but during the pendency of the proceedings, the widow died and the adopted son
of the widow was substituted in her place. The adopted son was allowed to take
the properties as the adopted son of the deceased husband and of the widow.
Thus, the doctrine of relation back was revived through these decisions.
The Andhra Pradesh High Court in Hanumantha Rao v. Hanumayya,73
took a contrary view. In this case, A and his two sons B and C were members of
a Hindu joint family. B died in 1924 leaving behind his widow D.D. adopted a
son E in 1957. E filed a suit against C and his son for partition and claimed
possession of half share in the properties (A had died earlier). The trial court held
the adoption valid, but said that the adopted son could not divest C and his son of
the properties already vested in them before adoption. This decision was upheld
by the High Court. His Lordship said that even by a cursory reading of section 12
of the Hindu Adoptions and Maintenance Act, .1956, it is abundantly clear that the
adopted child is deemed to be the child of his or her mother or father. That this is
so, is clearly indicated by a word, “or” between father and mother. And this is
further clear from the words, the adoption was effective “with effect from the date
of adoption. 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 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 adoptive father which had passed by

AIR 1967 All 148 at 149.

ILR (1966) AP 140.
 257

survivorship to his father’s brothers. Thus, there were conflicting opinion of

different High Court.
The question came before the Supreme Court in Sawan Ram v. Kalawati
case.74 The fact of which are as underl­
ine Ramjit 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
Respodnent 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.
Bhagwani the donee, Smt. Kala Wanti, Respodnent 1, and the mortgagee, Babu
Ram, Respodnent 3, were impleaded as defendants. That suit was decreed and
Smt. Bhgwani went up in appeal to the High Court. During the pendency of the
appeal, Smt. Bhagwani adopted Respondent 2, Deep Chand, the son of
Brahmanand and his wife, Respondent 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 1 as well as for possession of the land which she
had mortgaged with Respondent 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 22 August, 1949, before the Hindu Succession Act,
1956 (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

74
AIR 1967 SC 1761.
 258

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 properties. 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.
The following two points were raised before the Court by learned counsel
for the appellant:
(1) The adoption was invalid by operation of clause (ii) of Section 6 read with
sub clause (2) of Section 9 of the Act as the child was given in adoption by
the mother, when his father Brahamanand was alive. He alone has right to
give the son in adoption.
(2) After the passing of the Act, 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 deemed to be the son of her deceased husband.
In support of this proposition, Id. Counsel drew attention to the provisions
of section 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 Court of competent jurisdiction to be of an sound mind, has
been granted the capacity to adopt a son or daughter. In support of the
above proposition, emphases was put on Sections 8, 12 and 14 of the Act
and on the decisions of the Andhra Pradesh High Court given in an
Hanumantha Rao case.
 259

The first point raised on behalf of the appellant was negated by the Apex
Court on the basis of record. As far as the second point is concerned, the
Supreme Court rejected the aforesaid argument and also expressed opinion that
Andhra Pradesh High Court has ignored to relevant point to consider, necessary to
decide the case in hand. However, by referring the provisions, the provision of
Section 5 clause (1) of the Act, the Apex Court held as under:-
“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 Section 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
 260

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 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 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, true, 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 Section 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”. Thus, the appeal was dismissed in this particular case.
It was held by the Court that as compared to Sawan Ram, the adopted son
has a preferential right to the property left by Ramji Dass. However, the adopted
son could take the property of Ramji Dass only if the adopted son was treated as
the son of Ramji Dass and the adoption was related back to the date of the death
of Ramji Dass. Thus, in this manner, it was indirectly said by the Supreme Court
that a son adopted by a widow after the death of the husband will also be treated
as the son of her Late husband also. Thus, this decision of the Supreme Court
 261

indirectly revived the doctrine of relation back. What has been said indirectly in
this case has been said directly by the Supreme Court in Sita Bai v. Ram
Chander15 and Vasant v. Dattu76 case. The fact of Sita Bai v. RamChander are as
under
“In this case two brothers constituted a coparcenary. One if them died
issueless leaving behind his widow, who later on adopted a son. After some time,
the other brother also died leaving behind his widow and an illegitimate son. The
son adopted by the first widow was held to be the only surviving coparcener of
the family and thus, entitled to inherit the entire coparcenary property. The Court
held that the son adopted by one widow would become a member of the
coparcenary as he would be treated as a son of the deceased husband also. Since
the other brother died leaving behind an illegitimate who cannot become a
coparcener the adopted son alone will acquite the status of a sole serving
coparcener and thus, entitled to entire coparcenary property. In this particular
case, Ankush Narain v. Jaina Bai17 case decision was specifically approved by the
Supreme Court.
The Supreme Court also in Vasant v. Dattun case expressed the similar
type of views. Chinnapa Reddy J. said that “No interest vests in a coparcener and
when on a demise of a coparcener his interest passes on to her widow by virtue of
proviso to Section 6 Hindu Succession act that interest does not vest in her with
the result that when later on she adopts a son, that son becomes a coparcener in
the coparcenary now headed by her deceased husband’s brother.”
It was observed by the Court that “the
introduction of a member into a joint family, by
birth or adoption, may have the effect of decreasing
the share of the rest of the members of the joint

AIR 1970 SC 343.

AIR 1987 SC 398.
AIR 1966 Bom. 174
AIR 1987 SC 398.
 262

family, but it certainly does not involve any

question of divesting any person of any estate
vested in Mm in view of proviso (c) to Section 12.
The joint family continues to hold the estate, but,
with more members than before. On the death of a
member of a ‘joint family’, the property, no doubt,
passes by survivorsMp, but there is no question of
any vesting or divesting in the sense contemplated
by Section 12.. Section 12 cannot be interpreted to
include cases of devolution by survivorsMp on the
death of a member of the joint family as that would
be to deny any practical effect to the adoption made
by the widow of a member of the joint family.
Although on the basis of a partition existing before
the adoption it could be claimed that the properties
wMch had become vested in members of the family
could not be divested by adoption, but in the present
case existence of such a partition could not be
established”.
The principle laid down in Sita Bai v. Ram Chander has also been
followed by the Delhi High Court in Duli Chand v. Paras Ram.19 In this case on
the death of K, an issueless Hindu, Ms widow M succeeded to his properties and
took widow’s estate. In 1944 she. made an oral gift of the properties to two
persons, BR and RR. Later on in the same year two reversioners PR and K filed a
suit challenging the aforesaid gift. The suit was compromised in favour of the
plaintiffs. Then in 1957 M field a suit for the cancellation of the gift and
possession of gifted property. Again, a decree of compromise was passed under
which one half of properties were awarded to M as against RR, and the suit

AIR 1970 Del. 202.

 263

against BR was dismissed. In 1957 M adopted DC, son of BR. M died in 1960.
The reversioner, PR and K filed a suit for possession against DC and others.
Khanna, J., after quoting extensively from Sitabai, said that DC should be held
not merely the adopted son of M but also of her deceased husband K. The learned
Judge further said that S. 12(c), Hindu Adoptions and Maintenance Act, did not
come into play as there was no question of divesting the plaintiffs PR and K, since
no property vested in them (when M had adopted DC no property had vested in
the PR and K). In view of this statement of law, his Lordship has no difficulty in
holding that on the death of M her adopted son being the adopted son of K also
was the preferential heir of K.
According to Dr. Paras Diwan :
“it is submitted that if we say that DC succeeds to the property of M being
the adopted son of M the statement would be correct, but if we say that DC
succeeded because he is the nearest Kin of K, we can say so only if we accept that
the doctrine of relation back is still recognized in Hindu law, otherwise, the
adopted son of a widow cannot be also the adopted son her deceased husband.”
The same principle was subsequently approved by the Supreme Court in
D. S. Agalctwe v. P. M. Agalawe,81 This case has been separately discussed in this
chapter.
Thus, the theory of relation back which was expressly abolished by the
Supreme Court has again revived by the decisions of Supreme Court. It has been
held by the Supreme Court when a widow in Mitakshra Joint Family adopts a son,
the son becomes coparcener with other coparceners in the family and there is no
question of a divesting any one from the estate vested in the members of the joint
family. However, it is going to affect the interest of widow.

Paras Diwan Law of Adoption, Minority, Guardianship and Custody 3rd Ed. P.
113.
81
AIR 1988 SC 45.
 264

(e) Death of Sole Surving Coparcener and Theory of Relation Back

As held by the Supreme Court in Krishna Murti v. Dhruvary,82 that a
coparcenary continues to subsist so long as there is in existence a widow of a
coparcener capable of bringing a son in existence by adoption.
The Supreme Court in that Kishna Prasad v. CIT83 has laid down another
important judicial principle. According to the decision given in this case, the
death of sole surviving coparcener does not cause extinction of joint family till the
existence of a potential mother capable of taking a child in adoption. It was said
by the Courts that “the rights of the adopted son relate back to the date of the
adoptive father’s death and the adopted son must be deemed by a fiction of law to
have been in existence as the son of the adoptive father at the time of the latter’s
death. This principle of relation back is subject to certain exceptions.
A necessary corollary of the above legal fiction would be that on the death
of a sole surviving coparcener a Hindu Joint family cannot be finally brought to
an end while it is possible in nature or law to add a new member to it. The family
cannot be at and end while there is still a potential mother if that mother in the
way of nature or in the way of law brings in a new male member.”
However, it has been held by the Supreme Court in Rajender v. Kalyan84
that by a legal fiction the adopted child who was bom after the death of the
husband of the adoption mother cannot be treated as bom on the date when
husband of the mother died. He can’t claim any property which been succeeded
by mother from her late husband.
IV. Adoption of a Son by a Single Widow and Divesting of Property
When we go through the case law there are two types of cases which have
come before the court. One, where the death of coparcener took place before the
passing of the Hindu Succession Act, 1956. The widow took the property of the
deceased husband as a limited owner and became absolute owner by virtue of

AIR 1962 SC 590.

AIR 1975 SC 498.
(2000)8 SCC, P. 99.
 265

Section 14 of the Hindu Succession Act and adopted a son after the passing of the
Hindu Succession Act, 1956 and the Hindu Adoption and Maintenance Act, 1956
two, where the death of a coparcener took place after the passing of the Hindu
Succession Act and Adoption by widow is made after the passing of Hindu
Adoption and Maintenance Act. These are important observation of the courts in
this regard.
There is no controversy when a widow who is not a member of Hindu
Joint Family adopts a son. In such situation son cannot divest the widow from
any property which has been inherited by her from her Late husband. In
Puneetvalli Vs. Ram Lingham,85 a Hindu widow inherited certain property from
her deceased husband and she took it as a limited owner. After the passing of
Hindu Succession Act, she become absolute owner of the property inherited by
her and thereafter, she took a son in adoption. After adoption the widow gifted
away a part of the property inherited by her in favour of her daughter Puneetavali.
The adopted son challenged the validity of gift. During the course of pendency of
the case, the widow died. In appeal the court held that the widow was in the
possession of inherited property on the date of the commencement of the Hindu
Succession Act and therefore, she became the absolute owner of the property.
Before adoption the property had vested in her and therefore, even after adoption
the property continued to vest in her which the adopted son could not divest.
Thus, the gift made by the widow in her daughter’s favour was held to be valid
and legal one.
The question of adoption of a son by widow and divesting of estate by the
adopted son has also been considered by the Bombay High Court before and after
Puneetavalli v. Ramlingham case. In Yamunabai v. Ram Maharaj,86 where the
question of ‘vesting’ came before the Court in the context of proviso(c), an
inamdar from the state of Kohlapur died leaving two widows. The senior widow

85
AIR 1970 SC 1730.
86
AIR 1960 Bom. 463.
 266

being navawali (holder) of the Inam properties adopted a son in 1949 without
securing the sanction of the government of Kohlapur as was required under the
State regulations. On her death, the junior widow’s name was recorded as holder
of the Inam properties. The adopted son disputed the claim of junior widow. The
junior widow filed a suit claiming that she was entitled to the entire properties, as
adoption was invalid being made without any sanction of the Government. It may
be stated that ex-post facto sanction for the adoption was given in 1959. The
question before the court was whether adoption was effective from 1949 or from
1959? The court held that sanction was effective from the date it was given and it
could not be given retrospective effect. The court also held that by virtue of
section 14(1), Hindu Succession Act, 1956, the junior widow became the full
owner of the Inam properties.
In Hirabai v. Babu Manik Ingale, the Bombay High Court declined to
follow Yamunabai. In this case one Hirabai widow of Haijit Ingale, adopted
Babu Manik under a registered deed of adoption. The land left by Haijit Ingale
were mutated in the name of Babu Manik. Later on Hirabai filed a suit for
cancellation of adoption and for a declaration that the ownership of the land
vested in her. During the pendency of the suit she purported to make a transfer of
the land in favour of one Latabai, a minor, for a consideration of a sum of Rs.
25,000/- The trial court held that the adoption and surrender of land in favour of
adopted son as valid. The main argument addressed before the court in favour of
the widow ran: Hirabai was the sole holder of the joint family property coming to
her on the death of her husband and by virtue of section 14(1). Hindu Succession
Act, she became the absolute owner of the property, therefore, unless the property
was conveyed by a deed of gift to the adopted son, the adopted son could not
acquire any interest in it by the mere fact that he was adopted by the widow.
Masadkhar, J. who delivered the judgment of the court, after narrating the
historical development of Hindu law of property in the context of adoption, after

87
AIR 1980 Bom. 315.
 267

referring to section 12 of the Act which lays down that the adopted child “shall be
deemed” to be the child of adoptive father or mother for all purposes, and after
adverting to the Supreme Court decision in Sawan Ram v. Kalau>ati, and Sitabai
v. Ramchandra, said that the expression “shall be deemed” and “for all purposes”
in the section indicated that the legislature clearly introduced a new legal fiction,
i.e. “prospective furthering”. According to learned Judge, the theory prospective-
furthering is as under: -
This prospective-furthering of the effects will have dual incidents of
admitting status and conferring rights and privileges, including the rights and
privileges in property, for the purpose of giving effect to the status as that of the
child bom to the wedded spouses, this prospective-furthering implies that because
of the device of adoption, though the child is taken by one of the spouses, the
child equally is the child of the other.....As a consequence of this position, it
follows that on the date of adoption, the adopted child becomes the immediate
heir to his deceased father or mother from that date and acquires all necessary
capacity to take the property.
In the result, the rights and privileges by virtue of prospective furthering
would get annexed to whatever remains of the property as on the date the effect of
adoption is enjoined to take place. The learned judge’s reading of the Supreme
Court decisions referred to earlier is: The ratio of both cases clearly goes to show
that the exception provided in clauses (c) is meant only to protect the others of the
rights vested in them prior to adoption and is not intended to deprive the adopted
child of the rights with regard to the property belonging to the joint family. The
learned judge added that the language of section 14(1) of the Hindu Succession
Act does not stand in the way of an adopted child getting an interest in the
property held by the widow. The learned judge also distinguished Punithawali
Amma v. Ramalingham by saying that in the case there was no reference to the
coparcenary property.
 268

On account of this conflict, the matter came for consideration before a Full
Bench in Kesharbai Jagannath v. Stated The fact of the case are interesting as
an attempt was made to escape from the clutches of the Maharashtra Land
(Ceilings on Holding) Act, 1961. The widow of one Jagannatth Gujar who had
adopted a son pleaded that her adopted son was entitled to one-half share in the
land. The land tribunal accepted the contention and held that, in view of the
notional partition, neither party was a surplus holder. But the Divisional
Commissioner came to a different conclusion. According to him Kesharbai
became a full owner of the entire property left by her husband by virtue of section
14. Hindu Succession Act read with section 12(c) of the Hindu Adoptions and
Maintenance Act, 1956 and the adopted son had no share. In view of this he held
that there was surplus land. The question before the Full Bench was formulated
thus:
Whether by reason of section 14 of the Hindu Succession Act which
converts the limited estate into full ownership, in the case of the joint family
property, does the adopted son take interest by birth i.e. civil birth from the date
of his adoption?
The Full Bench overruled Hirabai and observed that after coming into
force of the Hindu Succession Act, 1956, by virtue of section 14(1) thereof, a
female holder became the full owner of the property held by her. In our
submission, the court rightly said that in Hirabai, the widow became the full
owner of the property under Section 14(1), Hindu Succession Act. The Full
Bench also dismissed the theory of prospective-furthering. The court said that
“this seems to be a new expression coined and such a concept is not to be found
anywhere else”. The court said:
.....It appears that the full ownership conferred upon a Hindu female
would have all the attributes of full ownership as is understood normally in law.
In our view the first consequence is that there is no question of reversion after the

88
AIR 1981 Bom. 118.
 269

death of the Hindu female and she would continue a fresh stock. Succession to
this property will be governed by the provisions of the Hindu Succession Act and
not by the Shastric Hindu Law. Being full owner she is entitled to dispose of the
property by transfer inter vivos or by will. If a son adopted by a Hindu male
person could not claim any right in the self-acquired property how can a son
adopted by the Hindu female now claim a right by birth in this independent
property of the female which is akin to the self-acquired property. It is being
conceded on all hands that the adoption after the Hindu Succession Act operates
prospectively and not retrospectively. There is no relation back. On the date of
the adoption there is no joint family property in existence in which he could claim
any interest in birth. In doing so, the adopted son is not deprived of the status
given to him of natural bom son as section 12 of the Hindu Adoptions and
Maintenance Act. 1956 provides. Where the natural bom son could get a right by
birth, the adopted son would. If the natural son had no right by birth, the adopted
son cannot also claim any such right.
The question of divestment of the property vested in the widow on the
death of her husband arose in Revabai Vs. Sitaram,89 In this case two brothers
constituted a Mitakshara coparcenary and they effected an oral partition in or
about 1928-29. One of the brothers had two wives. He died in 1936 and soon
thereafter his two widows, A and B, got effected a partition of the estate through a
court decree. B adopted a son, S on November 12, 1953. On November 30, S
filed a suit claiming properties held by A on the ground that from the date of
adoption by B, he, the adopted son, divested A of all the properties vested in her,
and the decree of partition obtained by his adoptive mother and the co-widow of
his adoptive father (in view of Sawan Ram he was the adopted son of the
deceased husband of his adoptive mother) was not binding on him.
The Hindu Woman’s Right to Property Act, 1937 came in that region on
September 30, 1939 and the date when the suit was filed, section 14 of the Hindu

89
AIR 1984 MP 102.
 270

Succession Act had come into force. The case was based on the construction of
the provision of section 14. The rights of acquisition of property contemplated
under both the sub-sections of.the section may be acquired in any possible manner
and independently of each other. In our submission, it seems to be clear that sub­
section (2) will come into application only when the property is acquired by a
Hindu female for the first time (without any pre-existing right) under gift, will,
instrument, decree or order or award and such gift-deed, will, instrument, decree,
order or award grants her a restricted estate in the property. On the other hand, if
any property or right in the property has been acquired by a Hindu female in any
manner including the manner laid down in sub-section (2), on the basis of pre­
existing right (in other words, if the grant is merely a recognition of pre-existing
right), sub-section (2) will not apply, and the matter will be exclusively governed
by sub-section (1). If the Hindu female has possession over that property when
the Act came into force, it will be converted into an absolute estate.
P.D. Muley, J., in a considered judgment, observed that the decree of the
court effecting portion between the widows merely recognized their pre-existing
right, since each has a pre-existing right to maintenance in the property. The
Judge added that A was obviously in possession of the property when the Hindu
Succession Act came into force, and even if assuming that the widows have no
right to partition in the sense of putting their mutual right of survivorship to an
end, they were in possession of the suit properties and once it was shown that by
mutual consent they had effected a final partition, it was not open to any one of
them, much less the adopted son, to claim a re-allotment of possession of the
properties. The adopted son could not divest her of the properties already vested
in her and which had, by virtue of section 14(1) become her absolute properties.
Again in Kanduru Vankata Samaiah v. Kanduru Ramasubbamma90 the
doctrine of relating back was sought to. be resurrected in its pristine form. A sole
surviving coparcener had bequeathed all his properties absolutely to his wife.

90
AIR 1984 AP 313.
 271

After the death of her husband, she adopted a son, and under an ante-adoption
agreement she gave certain properties to her adopted son and retained the other
for herself. The adopted son sought to divest his adoptive mother of all the
properties on the same basis on which he tried to do so in Revabai v. Sitaram, and
here also he failed. P. Kodandaramayya, J., after a review of the authorities of the
Madras High Court and some Privy Council decision observed:
“Though there is some conflicting dicta on this
question, the preponderance of authority is in favour
of the view that when a Hindu disposes of his
property by a will giving absolute estate to his wife
the disposition is not affected by a subsequent
adoption by the widow as the will speaks as at the
death of the testator and the property is carried
away before the adoption.”91
The Judge observed that this has been the accepted view of the Madras
High Court for over three decades and he doctrine of relating back could not be
resurrected. Then he added:
“Further after 1956, the Hindu Adoptions and
maintenance Act.... Solved this problem by laying
down an express and explicit rule that the adopted
child shall not divest any person of any estate which
vested in him or her before adoption.”
The question of divesting of the property of a widow came for
consideration before the Supreme Court to Dinaji v. Daddi and others.92 It was
held by the court that Proviso (c) to S. 12 departs from the Hindu general Law and
makes it clear that the adopted child shall not divest any person of any estate
which has vested in him or her before adoption. It is clear that in the present

Ibid P. 316.
AIR 1990 SC 1153.
 272

cases the widow who was the limited owner of the property after the death of her
husband and after Hindu Succession Act came into force, has become an absolute
owner and thereby the property of her husband vested in her and therefore merely
by adopting a child she could not be deprived of any rights in the property. The
adopted son, in view of proviso (c) to Section 12, will not only be entitled to
property after the death of the adoptive mother. The adoption would come into
play and the adopted child could get the rights for which he is entitled after her
death as in clear from the scheme of S. 12 proviso (c).
In Akshay Kumar v. Sarada Dai,93 son adopted by a widow was held to be
the son of her deceased husband but it was added that such adopted son would not
though divest the widow of property vested in her by virtue of Section 14 of the
Hindu Succession Act, 1956.
In Kisan Baburao Memane v. Suresh Sadhu Memane,94 original owner of
the property died in 1919 and his widow gifted some property to defendants in
1948. She adopted the plaintiff in 1973 and she died in 1975. It was held that the
adopted son could not divest suit property vested in defendants before adoption
even presuming that the gift was invalid.
The question of effect of adoption by a widow again came for
consideration before the Supreme Court in Chandan Bilasini v. Aftabuddin
Khan?5 In this particular case, a widow had adopted a son after the death of her
husband. The adopted son wanted to divest the mother from the property which
was inherited by her from her late husband. It was held by the Court that
“on adoption of the son (respondent) by the widow, the adopted son
severed his ties with his natural family and became part of the adoptive family.
As such the adoptive mother became his mother and her deceased husband
became his deceased father. When a widow adopts a child, the child not merely
acquires an adoptive mother but also acquires other relationships in the adoptive

AIR 2000 SC 3335.

AIR 1996 Bom. 50.
AIR 1996 SC 591.
 273

family, unless there is anything to the contrary in the Hindu Adoptions and
maintenance Act. This position is reinforced by Section 14(4). The family
relationship gets crystallized 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”. The same type
of question came before the Supreme Court in Rajender Kumar v. Kalyan.96 The
fact of the case are as under :-
“The plaintiff-appellant instituted a civil suit in 1968 seeking possession
of property belonging to one ML who had died in 1923 leaving behind his widow,
K. The plaintiff alleged that in 1967 he was taken in adoption by one R who was
married to M. M had died in 1919. The plaintiff claimed that his adoptive father
M was adopted by ML as a son during his lifetime. That after the death of ML,
the family comprised K and R. The first defendant RG claimed to be adopted son
of ML but the plaintiff denied the legality of the adoption on the ground of want
of authority from ML to K to adopt a son to him.
A deed of partition executed between K and R was, in the year .1929,
challenged by K on the ground that R had no right to ML’s property as M was not
ML’s adopted son. RG’s adoption was also challenged in the suit but RG, who
was impleaded therein, asserted that he was adopted by ML himself. The trial
court held that (i) R was not a member of ML’s joint Hindu family, (ii) in the
absence of authorization to R to adopt a son to M, though R adopted the plaintiff,
the adoption was not legal and valid, and (iii) the adoption of RG by ML was
proved. Therefore the trial court decreed the suit against R. The decision was
affirmed by the appellate court.

96
AIR 2000 SC 3335.
 274

RG instituted a suit in 1935 impleading, inter alia, K and R as defendants.

The issue of RG’s adoption to ML was raised and the same was answered in the
affirmative whereas RG’s adoption to K was negatived.
In the instant suit of 1968, the plaintiff contended that the decision in the
suit of 1929 did not bind him since his claim was lodged through M and not
through R and the observations of the appellate court that R was entitled merely to
maintenance and not to any interest or share in the property would not bind him.
However, the trial court held that the decisions in the suits of 1929 and 1935
operated as res judicata on the question of adoption of RG by ML and non­
adoption of M by ML. It, therefore, dismissed the suit for possession. The
decision was affirmed by the High Court. Before the Supreme Court the plaintiff-
appellant, placing reliance on Section 8 of the Hindu Adoptions and maintenance
Act, sought to prove the legality of his adoption by R. The plaintiff further
contended that by a legal fiction he took the interest of M in 1919 when the
plaintiff was deemed to be bom irrespective of his actual birth in 1951.
Dismissing the appeal, the Supreme Court it was held by the court that section 8
of the Hindu Adoptions and Maintenance Act has no applicable in the instant
case. The widow has a right to adopt a child for herself. But in the event the
child is to be adopted to the husband the statute is otherwise silent and thus, the
law as its stood prior to the enactment of the legislation as regard the adoption
would have been taken recourse to for proper appreciation. The old Law provided
an express authority by the husband to the widow to adopt the child on his behalf.
But under the Modem law, there is provision in this regard. In the absence of
such provision, the adoption of a child by a widow to her late husband cannot be
treated as valid. The contention of the child that by a legal fiction he took the
interest of the deceased father w.e.f. the date of his death, cannot be accepted.
After the death of the husband, the adoptive mother had succeeded to the property
of the deceased husband and the plea of the adopted son that his interest should be
treated in the property held by the adoptive mother from the date of the death of
 275

her husband, was rejected by the Supreme Court. It was held by the Supreme
Court that by a legal fiction the adopted child who was bom after the death of the
husband of the adoptive mother cannot be treated as bom on the date when the
husband of mother died. It was held by the court that if it is permitted then it is
going to effect the interest of a number of person in whom the property of
deceased has vested.
In Sorawar Singh v. Kanwal, after the deaths of the last male holder, the
property came in the possession of his widow, who by virtue of section 14 of
Hindu Succession Act became absolute owner of the property. The widow
adopted a son in 1960. It was held that the property was vested in the widow as
full owner, it lost its character as a coparcenary property and could not be revived
by subsequent adoption.98 But in case the property is not vested in any one the
son is related to the deceased husband and becomes coparcener.99
The Supreme Court Namdev Ghadge v. Chandarkantm has also held that
once the property is vested in the heirs of the sole surviving coparcener after his
death, a son adopted after his death cannot divest the heirs in whom the property
has already been vested.
Thus the law is well settled when a son is adopted by a single widow. The
adopted son can’t divest the mother from any property vested in her.
V. Reopening of Partition made before Adoption
As we have discussed the adopted son enjoys the same rights which are
enjoyed by the nature bom son. The adopted son has right of partition in
Mitakshra Joint family. After the passing of the Hindu Succession (Amendment)
Act, 2005, the coparcener’s daughter is also made a coparcener. She will have the
right of partition also. After the revival of the doctrine of relation back by the
Supreme Court, the adopted son of a widow is deemed to be son of her deceased

AIR 2003 Raj. 107.

Ibid. P.114.
Heera Lalv. Board of Revenue AIR 2001 Raj. 318 (DB).
AIR 2003 SC 1735.
 276

husband and he becomes coparcener with other coparcener. The important

question is whether an adopted son of a widow can demand of re-opening of
partition which has already taken place before his adoption. This question came
for consideration before Supreme Court and the Supreme Court has imposed
certain limitations in this regard.
What will be the effect of adoption of a son on partition came for
discussion before the Supreme Court in Govind v. Nagappa case.101 In this case
the joint family consisted of one K and his three sons RR, HR and IR. HR was
given away in adoption by K, RR died in 1912 leaving behind a widow S. In
1933 there was a partition between K and IR. K died in 1935. S, the widow of
RR adopted a son on September 18, 1955. The adopted son filed a suit of
partition on the plea that the partition of 1933 was not binding on him as no share
was given to him - he being in existence in 1912 (when his adoptive father RR
died) by the operation of the doctrine of relating back. The Supreme Court
accepted the proposition that the partition is not binding on file adopted son (thus
accepting that a subsequent adoption by a coparcener’s widow can unsettle a
partition validly made prior to adoption), but proceeded to say that this does not
obliterate the factum of partition. Hedge, J. observed :
“It is one thing to say that an adopted son can
ignore a partition effected prior to his adoption,
which affects his rights and it is different thing to
say that his adoption wipes out the division of status
that had taken place in his family.”
“By a fiction of law - well settled by decided cases - that an adopted son
is deemed to have been adopted on the date of the death of his adoptive father.
He is the continuator of his adoptive father’s line exactly as an aurasa son and an
adoption, so far as the continuity of the line is concerned, has a retrospective

101
AIR 1972 SC 1401.
 277

effect. Whenever the adoption may be made there is no hiatus in the continuity of
the line.
In the instant case, the adopted son is deemed to have been a coparcener in
his adoptive father’s family when the two members of the family partitioned the
properties. The partition having been effected without the adopted son’s consent,
it is not binding on him.
But from this it does not follow that the two members who had partitioned
did not separate from the family at the time of the partition. It was open to them to
separate themselves from the family. Once they did separate the adopted son and
his adoptive mother alone must be deemed to have continued as the member of
the family. It is true that because the adopted son’s adoptive mother was alive, the
family cannot be said to have come to an end on the date of partition. But that
does not mean that the other two members did not separate from the family. When
the partition took place the adopted son even if he was a coparcener on that day
could have only got l/3rd share. His position cannot be said to have improved
merely because he was adopted subsequent to the date of partition. It is true that
because he was not a party to the partition, he is entitled to ask for reopening of
the partition and have his share worked out without reference to that partition. But
so far as the quantum of his share is concerned, if must be determined after taking
into consideration the fact that two members separated from the family.
The adopted son can not doubt ignore the actual partition by metes and
bounds and ask for a repartition of the properties but his adoption by itself does
not and cannot reunite the divided family. It is one thing to say that an adopted
son can ignore a partition effected prior to his adoption, which affects his rights
and it is a different thing to say that his adoption wipes out the division of status
that had taken place in his family.
Further the property once vested by succession cannot be divested if in
that property the adoptive father had no right of his own. The doctrine of relation
 278

back is only a legal fiction. There is no justification to logically extend that

fiction.
In another case, Sirpa Vs. Datta Ram,102 the Supreme Court again
considered the effect of adoption on anterior partition on a subsequently adopted
son’s interest in joint family property. When this case came before the Supreme
Court Krishna Iyer, J. started on the assumption that it is a settled law that the
rights of an adopted son spring into existence only from the moment of the
adoption and all alienations made by the widow before adoption, if they are made
for legal necessity or are otherwise lawful (such as with the consent of the next
reversioners) are binding on the adopted son. In this case a Mitakshara joint
family consisted of one M and his two sons C and K.K died in 1921 leaving
behind a widow RB and a daughter LB. A partition took place between M and C
in 1944. In 1954 M gifted his share of properties to S son of C. M died in 1946,
K’s widow RB adopted LBS, her daughter LB’s son on 16.2.1956, before the
coming into force of the Hindu Adoptions and Maintenance Act, LBS filed a suit
for partition ignoring the partition of 1944 and claimed half share, his case being
that gift by M to S was invalid. The questions before the court were.
Whether the adoption made in 1956 could upset the partition of 1944,
validly made under the then conditions? Whether the gift made by M to S could
be retrospectively invalidated on account of the application of doctrine of relating
back? The court came to the conclusion that LBS, the adopted son, could get the
partition reopened, but could get only one-third share, and in computing the net
properties available for partition the gift made by M to S had to be excluded. The
court further observed that it was an accepted principle that when a disposition is
made, inter-vivos or by will, by one who had full power to do, then the
subsequently adopted son could not challenge or affect such disposition.
“The adoption by a widow relates back to the date of the death of the
adoptive father. When a member of joint family governed by Mitakshara law dies

102
AIR 1974 SC 878
 279

and the widow validly adopts a son to him, a coparcenary interest in the joint
property is immediately created by the adoption coextensive with that which the
deceased coparcener had, and it vests at once in the adopted son. Thus, the
adopted son, for secular and spiritual purposes continues the line of the adoptive
father and when the widow adopts, the doctrine of ‘relation-back,’ makes sonship
retroactive from the moment of death of the late husband. The new entrant is
deemed to have been bom on the date of the death of the adoptive father.
It was emphasised
“However, the principle of relating the birth of the
adopted son to the last day of the adoptive father’s
life is put in peaceful existence with recognition of
right lawfully vested on the basis of the realities
then existing. The law frowns on divesting vested
rights and keeping in cold storage or suspended
animation normal legal events like competent
transfers and collateral succession, except when
compelled by jural mandate.”
“A widow’s adoption cannot be stultified by an anterior partition of the
joint family and the adopted son can claim a share as if he were begotten and alive
when the adoptive father breathed his last. Nevertheless, the factum of partition is
not wiped out by the later adoption. In asking for a share the adopted son can
overlook the prior division but he cannot push the fiction of relation back to its
plenary extreme of nullifying the partition so as to reunite a divided family. Any
disposition testamentary or inter vivos, lawfully made antecedent to the adoption
is immune to challenge by the adopted son Lawful alienation, in this context,
means not necessarily for a family necessity but alienation made competently in
accordance with law. A widow’s power of alienation is limited and if - and only
if - the conditions set by the Hindu law are fulfilled, the alienation will bend a
subsequently adopted son. So also alienation by the Karta of an undivided Hindu
 280

family or transfer by a coparcener governed by the Benares School. Once

partitioned validly, the share of a member of a Mitakshara Hindu family in which
his own issue have no right by birth can be transferred by his will and such
transfers be they by will, gift or sale, bind the adopted son who comes later on the
scene. If a property has validly gone out of the hotchpotch the adopted son cannot
recall it. Partition cannot be drowned by the subsequent adoption because when it
was entered into there was no legal impediment in doing it. The clock cannot be
put back beyond a certain stage”.
The Supreme Court again considered this particular aspect in D.S
Agalawe Vs. Pandurang Mirigu Agalawe,103 In this case, there was joint Hindu
family consisting of Dharma and Mirgu. Mirgu died issueless leaving behind his
widow Champa Bai. After the death of Mirgu coparcenary property devolved
upon Dharma. Later on Champa Bai adopted a son namely Panduranga. After
some time Champa Bai and Panduranga brought a partitioned suit against Dharma
and claimed their share in the coparcenary property. Dharma refuted their claim
on the ground that after the death of Mirgu by virtue of being a sole coparcener,
the entire coparcenary property vested in him, which cannot be divested of him
within meaning of Section 12(c). The Court turned down the plea and held the
adopted son and his adoptive mother could rightly claim a share in the
coparcenary property, which had devolved upon the sole surviving coparcener,
Dharma. A person adopted by a Hindu widow after coming into force of the
Hindu Adoption and Maintenance Act, 1956 can claim a share in the property
which had devolved on a sole surviving coparcener on the death of the husband of
the widow, who took him to adoption. Consequently, the adopted son and the
widow adopting him can file a suit for partition against the person who was the
sole surviving coparcener before partition. Proviso (c) to Section 12 is no bar to
such suit, since no question of divesting sole coparcener of his estate involved.
The introduction of a member into a joint family, by birth or by adoption may be

103
AIR 1988 SC 45
 281

treated as decreasing the share of of the rest of the members of the joint family,
but it certainly does not involve any question of divesting any person of any estate
vested in him. Joint family continues to hold this stage but with more members
then before. There is no fresh vesting or divesting of a estate in any one. The
property, no doubt, passed by survivorship but there is no question of vesting or
divesting in the scene contemplated by Section 12 of the Act It was held by the
court that “the joint family property does not cease to be so when it passes to the
hands of a sole surviving coparcener. If a son is bom to the sole surviving
coparcener, the said properties become the joint family properties in his hands and
in the hands of his son. The only difference between the right of a manager of a
joint Hindu family over the joint family properties where there are two or more
coparceners and the right of a sole surviving coparcener in respect of the joint
family properties is that while the former can alienate the joint family properties
only for legal necessity or for family benefit, the latter is entitled to dispose of the
coparcenary property as if it were his separate property as long as he remains a
sole surviving coparcener and he may sell or mortgage the coparcenary property
even though there is no legal necessity or family benefit or may even make a gift
of the coparcenary property”.
If a son is subsequently bom to or adopted by the sole surviving
coparcener is inducted into the family of an adoption made by a widow of a
deceased coparcener an alienation made by the sole surviving coparcener before
the birth of a new coparcener or the induction of a coparcener by adoption into the
family whether by way of sale, mortgate or gift would however stand, for the
coparcener who is bom or adopted after the alienation cannot object to alienations
made before he was begotten or adopted. The observations made by the Supreme
Court in Sawan Ram case in the context of the decision of the A.P. High Court in
Hanumantha Rao case were obiter dicta. Accordingly, the joint family properties
continued to remain in the hands of CD\ the appellant as joint family properties
 282

and on his adoption ‘P’, respondent I became a member of the coparcenary

entitled to ‘D’.
Thus the Supreme Court has rightly decided that the fuctum partition can’t
be wiped out by the late adoption.
VI. Right of Adopted Child to Challenge Prior Alienations
The question of prior alienations of the property has been considered by
the courts in various cases. The courts have held if before adoption a valid
alienation of the property by way of sale, gift, Mortgage etc has been made by the
competent person, the subsequently the competent person, the subsequently
adopted son/daughter has no right to challenge the same. The adopted son of a
widow has also no right to challenge any valid alienation made by the adoptive
mother. The Supreme Court in D.S. Agalawe v. P.M. Agalawe104 has also held
that the adopted son will have no claim in the property already alienated by sole
surviving coparcener prior to the date of adoption.
VII. Adoption and Benefits of Reservation
As we have already discussed Section 12 of the Act creates a legal fiction
and provides that an adopted child becomes the child of his/her adoptive father or
mother ‘for all purposes’ with effect from the date of adoption. The expression
‘for all purposes’ is significant and has to given full effect and to be carried to its
logical purposes. The important. Question arises if a child of upper caste adopted
by a scheduled caste or Back class person is entitled to benefit of reservation or
not? This question came for consideration before the Delhi High Court in Khazan
Singh v. Union ofIndia105 case.
In this case the high court had held that on adoption of a Jat boy into
scheduled caste family, he became entitled to the benefit of reservation under
Article 16(4). An elaborate study on Adoption Law has been made in this case.
During the course of the judgment, the Judge quoted: “As Ganapathy Iyer points

AIR 1988 SC 845.

AIR 1980 Del. 60.
 283

out in his Hindu law, it cannot be said that ‘membership of caste is determined
only by birth and not by anything else106.....” The Judge also said:
“It appears to me that the answer to question
depends on the legal effect of an adoption and that
the fact that the transaction of adoption took place
on the eve of the petitioner seeking a government
employment and perhaps with a view to obtain SC
status’ is immaterial. In Mohan Rao case the
motive for reconversion was ignored. For the
purposes of the present arguments, we have to
proceed on the basis that the adoption is a valid and
genuine one and, if son, the question of motive for
the conversion is of no consequence.”107
It was also held that the legal proposition that “on adoption he became a
member of the caste to which his adoptive parents belong has to be accepted. I
think that the decisions regarding the effect of marriage have no relevance in the
present context”.
The Judge further held that under the old Hindu law an adoption by a
sonless parent was for all purposes equivalent to the birth of a son directly to him.
The question of caste however did not assume any importance because adoption
was permitted only between members of the same caste (Old law). The Hindu
Adoptions and Maintenance Act makes a specific provision in Section 12
regarding the effect of adoption. The language of the section is quite clear,
explicit and emphatic. The adoptee child, it says, (a) is deemed to be severed and
replaced by those of the adoptive family. The emphatic repetition of the word
“all” in relation to the “purposes” and “ties” is significant. The word “ties” is a
very wide and comprehensive word and would include all types of bonds - social,

106
Ibid P. 63.
107
Ibid 65-66.
 284

religious, cultural or any other that bound the adoptee to his natural family. All
his relationships are, according to the mandate of the section, replaced by the
corresponding ties in relation to the adoptive family.
Another aspect in adoption that the Judge discussed was relating to the
impact of adoption and effect on the future generations - the children and grand
children that may be bom to the adoptee. The question is - for how many
generations those children have to wait for admission into the community? Hence
recognizing the adoption would be the only choice that would remove the caste
factor to a greater extent.
Equally important is the next issue - the right of the Scheduled Caste
persons to adopt a child bom in a higher community. The governments in many
States offer special inducements and rewards for cases of inter-caste marriages
and encouragement should be given to attempts at mutual integration whether by
marriage or adoption. The Judge in Khazan Singh case concluded that “once a
Scheduled Caste, always a Scheduled Caste” should receive acceptance and added
that if genuine adoptions both ways become frequent they may eventually lead to
the development of that social equality at which the Constitution aims. He held
that the certificate granted to the petitioner was not liable to be cancelled on the
ground that the petitioner’s claim to be a Scheduled Caste by adoption was
unsustainable. In a nutshell Khazan Singh case decided the following:
(a) if the adoption is valid and a genuine one, the motive is of no
consequence;
(b) the emphatic repetition of “all” in Section 12 of the Hindu Adoptions
and Maintenance Act in relation to “purposes” and “ties” is significant;
(c) the impact of adoption and effect on the future generations- for how
many generations the children, grandchildren and the great grandchildren have to
wait for getting admission into the community;
(d) the genuine adoption both ways would strengthen the social equality
aimed in the Indian Constitution; and;
 285

(e) the decisions regarding the effect on marriage have no relevance in the
present context.
But when the child belonged to advanced section like Brahimans was
adopted at the age of 15 or so, after he/she had received benefits of upbringing in
that class and having advanced education start off, it was held that the adoptee is
not entitled to Constitutional benefits of reservation for backward class under
Article 15(4) or 16(4). In A.S. Sailaja v. Principal, Kurnool Medical College,108
the petitioner, daughter of A.S. Radhakrishna, an Advocate of Cuddapah in
Andhra Pradesh, had initially appeared for Common Entrance Examination for
1984-85 for admission into medical college, but failed. For the Common
Entrance Examination for 1984-85 she described herself to be the daughter of the
natural father Radhakrishna but in the application for admission made on
13.7.1985, she claimed that she was adopted by one B. Sivaramaiah (shepherd), a
backward Class in Andhra Pradesh and sought admission on that basis. She
secured 417 marks out of 600 and when she claimed to be an OBC, but was not
given admission, she filed a writ petition in the A.P. High Court for direction to
the college to admit her in the Backward Class Group D. The High Court
considered the interplay of adoption under the Hindu Adoptions and Maintenance
Act, 1956 and the protective discrimination under Article 15(4) of the
Constitution of India. It held that the native endowments of men are by no means
equal. The minds of children brought up in culturally, educationally and
economically advanced atmosphere are accounted highly as they are bund to start
the race of life with advantages It would apparently have its inevitable profound
effect on the equality of the child bom in that atmosphere.
The children bom amongst Backward Classes would not start the race of
life with the same quality of life. It would, therefore, be necessary to identify the
competing interests between diverse sections of society and it is the duty of the
court to strike a balance between competing claims of different interests. Citizens

108
AIR 1986 AP 206.
 286

belonging to a group of Backward Classes identified by the appropriate authority

or the commission, as a part of that class, fulfilling the traits of socially and
educationally backward among that group, would alone be eligible for admission
as Backward Class citizens under Article 15(4). In that event, the Court declined
to go into the question whether such person is socially or educationally backward
which is an exclusive function of the commission/authority appointed under
Article 340 of the Constitution. But any person who would attempt, by process of
law, and seek to acquire the status of such a Backward class, should satisfy that
he/she suffered the same handicaps or disadvantages due to social, educational
and cultural backwardness. A person bom in upper caste and having early
advantages of education is not entitled to the benefit of Article 15(4). In that
context, it was held that caste would be one of the considerations along with other
factors applicable to homogeneous group of people. A homogeneous group
together being identified as a class for the purpose of article 15(4) or 16(4) would
become a mockery. Therefore, it was held that the petitioner, though by adoption
became a member of the Backward Class, was not eligible for admission into the
medical college under Article 15(4) since she did not undergo any sufferings or
disadvantages, handicaps or ignominy which the members of the homogeneous
backward Class are subjected to.
In K.Shantha Kumar v. State of Mysore,109 Nataraja v. Selection
Committee110 and R. Srinivasa v. Chairman, Selection Committee,111 the Mysore
and Karnataka High Courts had consistently held that a boy belonging to a
forward caste adopted by a Backward Class citizen is not entitled to the benefit of
reservation under Article 15(4).
An interesting question came before the Rajasthan High court.

(1971)1 Mysore L.J. 21.

(1972)1 Mysore L.J. 226.
AIR 1981 Kant 86 See Also Arun Kumar Tyagi v. Union of India AIR 2002 Raj LR
501.
 287

In Vikas Soni v. Malviya Regional Engineering College, Jaipur.112 The

petitioner sought admission in the college under the reserved category “children
of defence personnel killed.” The petitioner was adopted by Sushila Devi, widow
of late Hazari Singh who had died in the year 1965 the date of birth of the boy
was 2-7-1983 and the adoption was made on 1.6.1989. In the school certificate
from 1 to XII the name of the father was mentioned Sh. Hazari Singh. The
authorities rejected his claim on the ground of a gap of 18 years in the date of
death of father and the date of petitioner. The Rajasthan High Court, without
saying that the adopted son belongs to the deceased father when adoption is made
by a widow held that expression ‘son’ includes an adopted son, so the petitioner
was entitled to the benefit of reservation.
In Valsamma Paul v. Cochin University113 a case concerning inter-caste
marriage, the Supreme Court held that change of caste by inter-caste marriages
would not be recognized for changing the caste from forward to backward. While
discussing many cases concerning inter-caste marriages would not be recognized
for changing the caste from forward to backward. While discussing many cases
concerning inter-caste marriages, the Supreme Court had made a one sentence
reference to Khazan Singh case. In the end without discussing any valid or
reasonable grounds, the Supreme Court had stated that the Delhi High Court in
Khazan Singh case too did not lay down the law correctly. As the main issue in
Valsamma is not concerned with adoption, it is submitted that the passing
reference of the Supreme Court has to be taken as an obiter. Moreover, the
Supreme Court had stated that when a member is transplanted into the Dalits,
Tribes and OBCs, he/she must of necessity also have undergone the same
handicaps and must have been subjected to the same disabilities, disadvantages or

AIR 2003 Raj. 158.

AIR 1996 SC 1011.
 288

sufferings so as to entitle the candidate to. avail the facility of reservation. Dr. N.
Balu114 critically comments on this decision.
“The Supreme Court has not mentioned the kind of sufferings or the age
criteria or even the existing recognised sufferings. It is really sad that the
Supreme Court despite the existence of the Protection of Civil Rights Act and the
National Human Rights Commission should suggest something that has been
condemned during the fifty years of our independence. It did not even discuss the
distinction between a Constitutional right and a legal right. Similarly, there is no
mention about the community status of the future generations of the adoptee. The
Judge also failed to discuss the community status of the orphans. Thus the issue
to be solved is: whether section 12 of the Hindu Adoptions and Maintenance Act
has to be interpreted on Khazan Singh lines or not. Or it has to be amended
making prohibition for “carrier planners”. As the issue is delicate and
complicated, a Full Bench of the Supreme Court should take up this issue and
pass final orders. Barring Khazan Singh case the courts have obviously digressed
from the statutory provisions, especially the proviso to Section 12 which does not
speak anything about caste, class but only indicates the matrimony and vesting or
divesting of property in relation to the adoptee. It is observed, with due respectto
the judiciary that the courts have transgressed from the scheme and objects of the
Hindu Adoptions Act by means of introducing the extraneous propositions such
as caste, casteist sufferings in the Judgments though the scheme of the Act has
purposely avoided such ingredients in the proviso to Section 12. Such judicial
decisions not only blur the letter but also dampen the spirit of the Hindu
Adoptions Act which aims at integration of the society, eonfluencing in the sea of
humanity devoid of caste, creed, class and other disgusting frontiers.”
There is urgent need to lay down principles and guidelines in this regard
as has been done by the Supreme Court in Inter-country adoptions. If the views

114
Dr. N. Balu, Professor and Head Deptt. of Legal Studies, University of Madras,
Madras in his paper ‘Effects of Adoption - some unsolved Issues’ (2001)8 SCC
(Jour) 1.
 289

given in Khazan Singh ease are accepted there is possibility of opening flood
gates for fake adoptions also. The guidelines should clearly indicate under which
circumstances the child of a forward caste if adopted by scheduled caste or
backward class person will be entitled to the benefit of reservation as provided in
the constitution.
VIII. Critical Appraisal of Doctrine of Relation Back
If we analyse the judicial trends we come to the conclusion that
(a) If a widow in Mitakshra Joint family adopts a son, the son is deemed to be son
of her late husband also. The adopted son becomes coparcener with other
coparcener in the family. The theory of relation back has been revived by the
Supreme Court in Sawan Ram v. Kalawanti115 case. What was said directly in
Sitabai v. Ramchander116 Vasant v. Dattu111 and D.S. Agalawe v. P.M.
Agalawe etc. While interpreting clause (c) to the proviso of 12 in Vasant v.
Dattu case, Chinnappa Reddy Justice who spoke for the court observed that in
case of this nature where the joint family properties had passed in the hands of the
remaining members of the coparcenary on the death of one of coparceners no
vesting of the property actually took place in the remaining coparceners while
their share in the joint family properties might have increased on the death of one
of the coparcener which was bound to decrease on the introduction of one or more
members in the joint family by birth or by adoption.
According to this view the adopted son does not divest any person from any estate
as no property is vested in the members of the Mitakshara Joint Family. However
this view has been subjected to criticism.
(b) On the other hand if a son is adopted by a single widow the adopted son can’t
divest the mother or nay other person from any property vested in the adoptive
mother or other before adoption. The Supreme Court in Puneetavalli v.

AIR 1967 SC 1761

AIR 1970 SC 343.
AIR 1987 SC 398.
AIR 1988 SC 45.
 290

Ramlignhan119 and Dinaji v. Daddi and others120 has approved this principle.
Further in Rajender v. Kalyanm the Supreme Court has held that a child who was
bom after the death of the husband of the adoptive mother cannot be treated as
bom on the date when the husband of mother died. The adopted son can’t divest
her the property succeeded by her from her late husband.
She is the absolute owner of that particular property and the adopted son
cannot challenge her right to dispose of the same by way of gift or by sale. On the
other hand, when a son is adopted by a widow who is member of a Hindu joint
family, the adopted son becomes a co-parcener with the surviving co-parcener in
the joint family and is deemed to be the son of the deceased husband of the
widow. ;
Thus there is a total confusion. If we accept the view expressed in Sawan
Ram v. Kalawati and Vasant v. Dattu case, it is going to effect the share of the
widow in the joint family property, where as it has been expressed by the
Supreme Court that no vesting of the property actually takes place on the death of
one of the co-parceners in the joint family and only the shares of the remaining
co-parceners are increased or deceased by death or by adoption of a son by a
widow. Section 6 of the Hindu Succession Act, 1956 (as the Law stood before a
mend ment of 2005) clearly lays down that when a male Hindu dies after the
commencement of this Act having at the time of his death an interest in Mitakshra
co-parcenery, the interest in the property will devolve according to provisions of
Hindu Succession Act, if he leaves behind a female relative or a male relative
claiming through a female in class I of the heirs.
Explanation - 1, attached to Section 6 indicates that the interest of a Hindu
Mitakshra coparcener shall be deemed to be the share in the property that would
have been allotted to him if partition of the property had taken place immediately
before his death. Thus, by notional partition we determine that share of the

AIR 1970 SC 1730.

Air 1990 SC 1153.
Air 2000 SC 3335.
 291

deceased to which he was entitled at the time of his death. That particularly share
is to be allotted to the legal heirs of the deceased.
Thus, if a person dies leaving be hind a widow she is entitled to the share
to which here husband was entitled in joint family property at the time of his
death. It is immaterial whether she chooses for partition or not. The demarcation
of the share does not result in automatically dissolution of the joint status of the
family. If after the death of the husband she adopts a son then the son should be
treated as her son only and the son should not be treated as the son of her
deceased husband also. If we treat the son as that of her deceased husband also it
results in the revival of the theory of relation back. The Hindu Succession
(Amendment) Act, 2005 has amended section 6 of the Hindu Succession Act,
1956. Now in a joint Hindu family governed by the Mitakshra law, the daughter
of a coparcener shall become a coparcener in her own right in the same manner as
the son. She would have the same right in the coparcenary property as she would
have had if she had been a son. Thus if in a Mitakshra Joint Family, a widow
adopt a daughter, the daughter also becomes coparcener with other coparceners in
the family. As the distinction between son and daughter has been done away
with, by doctrine of relation back, she may also be treated as the daughter of her
late husband. This will also result in decreasing the share of the widow in the
joint family property. The Hindu Succession (Amendment) Act, 2005 has not
changed the concept of national partition. Amended Section 6(3) also indicates.
Where a Hindu died after the commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in the property of a Joint Hindu Family
governed by the Mitakshra law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship, and the
coparcenary property shall be deemed to have been divided as if a partition had
taken place and,-
(a) the daughter is allotted the same share as is allotted to a son;
 292

(b) the share of the pre-deceased son or a pre-deceased daughter, as they

would have got had they been alive at the time of partition, shall be
allotted to the surviving child of such pre-deceased son or of such pre­
deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre­
deceased daughter, as such child would have got had he or she been alive
at the time of the partition, shall be allotted to the child of such pre­
deceased child of the pre-deceased son or a pre-deceased daughter, as the
case may be.
Explanation- For the purposes of this sub-section, the interest of Hindu
Mitakshara coparcener shall be. deemed to be the share in the property that would
have been allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was entitled to claim
partition or not.
The original as well as amended Section 6 of the Hindu Succession Act
clearly indicates that if a Hindu male dies after the passing of the Act without
making a will of his undivided interest in the coparcenary, and if he leaves behind
any female heir mentioned in class-I of the schedule, his share in the coparcenary
does not devolve by survivorship on other coparceners but by succession under
the Act. That means that after the commencement of the Act right to survivorship
is abolished in the Mitakshra Hindu coparcenary. The widow of coparcener is a
class-I heir, so by virtue of Section 14 of the Hindu Succession Act any property
falling to her share is her absolute property (or vested property) and hence if
subsequently the widow adopts a son, the son can’t claim any share in the
widow’s estate. The same will the position in case of adoption of a daughter. If
the adopted son or daughter is given a share in the property of the deceased by
treating the child as the child of the deceased, it results in divesting the widow of
her vested interest which is against the spirit of section 12.
 293

The Sawan Ram v. Kalawati case which has resulted in the revival of
doctrine of relation back has been extensively criticized by Dr. Paras Diwan. The
point of criticism are given below:
(1) The following two propositions were well settled in old Hindu law:
(i) a parent could not delegate his authority to give the child in adoption or to take
a child in adoption; and
(ii) the physical act of taking or giving could be delegated to another person. In
other words, the old law stipulated that the authority to give or take a child in
adoption could not be delegated, a person must himself exercise the authority to
take or give the child in adoption. But once a person decided to take or give a
child in adoption, he could delegate the physical act of giving and taking the child
in adoption. Thus, when a sick, aged or infirm person adopted a child, he adopted
the child to himself or herself though on account of age, infirmity or sickness he
or she was free to delegate the performance of the ceremonies of adoption: in such
a case the adoption was made by the person to himself though the ceremonies
were performed by someone else122. It seems that these propositions are given
statutory form in section 5 of the Hindu Adoptions and Maintenance Act, 1956. It
is submitted that this is what is meant when the section says that no adoption,
“shall be made.... By or to a Hindu...” However, in Sawan Ram Vs. Kalawati123,
Bhargava J., of the Supreme Court thinks that two kinds of adoption are
visualized: One is an adoption by a Hindu and the other is an adoption to a Hindu.
The learned judge gives the following instances of the latter, when a female
Hindu whose husband is dead, has finally and completely renounced the world, or
has been declared by a Court of competent jurisdiction to be of unsound mind,
adopts a child, then such an adopted son will be the adopted son of her husband.
It is submitted that under the modem Hindu law one spouse cannot adopt
to another. When a married Hindu male adopts a child, he can do so only with the

Shamsingh Vs. Santabai ILR (1901) Bom.

AIR 1976 SC 1761.
 294

consent of his wife; in the absence of wife’s consent adoption is null and void:
Since the adoption is made by the Hindu male with the consent of his wife, he
becomes the adoptive father and his wife becomes the adoptive mother. A married
Hindu female is not allowed to adopt at all, and if she adopts child with the
consent of her husband, the adoption is null and void. This is the entire law
relating to adoptions by married person whose another spouse is living and is a
normal person.
(2) As we have seen, only in three abnormal cases a married spouse can adopt
during the life-time of the other spouse and without his or her consent and
probably despite his dissent. There cases are; (i) when the other spouse has
completely and finally renounced the world (i.e. has become a sanyasi or yati), (ii)
when the other spouse ceases to be a Hindu, and (iii) and when the other spouse
has been declared by a Court of competent jurisdiction to be of unsound mind.
With due deference to Bhargava J, in such cases the child will have no
relationship with the other spouse of the adopter. Any other view is likely to result
in anomalies and absurdities. Thus, a childless married woman whose husband
has become a sanyasi adopts a son and a daughter and if we hold that such a child
will be related to the other spouse, it would mean that the sanyasi has been
blessed with a son and a daughter. Similarly, if a childless married Hindu wife
whose husband has become a Muslim adopts a child then it would mean that a
Muslim has an adopted son even though by his personal law a Muslim is not
allowed to adopt. Similarly, if a childless married Hindu female shoes husband
has been adjudicated as a person of unsound mind, adopts a daughter, then it
would mean that an insane person has an adopted daughter, even though under
Hindu law, an insane person has no capacity to adopt. Thus, by this process a
sanyasi, a Muslim and a person of unsound mind have been allowed to have an
adopted child.124

Dr Paras Diwan, Law of Adoption, Minority, Guardianship and custody, 3th Ed., P
99-100.
 295

(3) Further when this doctrine is applied in case of widows the child is related to
widow’s family. Now the question arises which is the widow’s family? Her
husband’s or her own. Under the old Hindu law since marriage was a sacrament
and indissoluble union and on marriage, a girl was supposed to completely pass
from the family of her father to the family of her husband. Under the old law, the
marriage did not dissolve on the death of either spouse; therefore, widows were
not allowed to remarry. Hence, the adoption by widow and doctrine of relation
back were natural corollaries to these notions. But after coming in force of the
Hindu Widows Remarriage Act, 1856 and the divorce being given statutory
recognition, this old law has changed drastically. Today, a Hindu widow has been
put at par with a divorced woman, in the sense that former has lost her husband
against her will and tragically, whereas, latter has lost her husband by law,
whether on her own volition or against her will. Therefore, it is wrong to insist
that widow’s family in her husband’s family. It we insist on this a re-married
widow have two families viz. families of her late and present husband? If we
apply, this logic, then in case of divorced woman, her divorced husband should be
adoptive father of her subsequently adopted child. But obviously this is absurd.
(4) We may illustrate some of the anomalies that are likely to arise by placing
Bhargava, J’s construction on the provision. If a Hindu dies leaving behind three
widows and no issue, then each of the widows can adopt a child (or even two
children, one son and one daughter). Suppose these widows adopt children to
themselves then all the children will also be adopted children of the deceased
husband of the widows. In other words, the deceased Hindu male will have at
least three (or six) adopted children. Or, a Hindu dies leaving behind two widows
and an adopted son (adopted by him during his life time with the consent of both
his wives). Now if the junior widow exercises her right of adoption (The senior
widow cannot exercise this right, since on adoption by A she, being the senior
wife, became the adoptive mother of the child) and adopts to herself a daughter
and a son, then the deceased male Hindu will have two adopted sons and an
 296

adopted daughter! Or suppose a Hindu dies leaving behind a natural son from his
pre-deceased wife and a widow (whom he had married after the death of his first
wife). Now suppose his widow (who has no child and therefore has a right of
adoption) adopts a son. The result will be that the deceased Hindu will have a
natural son as well as an adopted son. Thus, the artificial construction placed on
the provisions of the Hindu Adoptions and Maintenance Act, 1956 enables the
deceased male Hindu to perform those feats which he could not have performed
during his life time.
(5) Section 12 of the Act lays down that all the ties of an adopted child are created
in the adoptive family according to the State of the family in which the child
1

enters. If a bachelor adopts a child, an adoptive mother cannot be provided to it,

if a spinster adopts a child an adoptive father cannot be. Similarly if a widow
adopts, an adoptive father can’t be provided.
On the other hand, Dr. U.P.D. Kesari has given the contention that
doctrine of relation back has not revived by the Supreme Court in Sawan Ram’s
case. According to him under the old Hindu Law whenever a reversioner
challenged the alienation of the property made by the widow of the collateral and
it was found that the alienation was invalid then the property came back from the
possession of the alienee. But it did not vest in the reversioner so that it cannot be
said that the adopted son divested the reversioner of that property which came
back from the possession of alienee. Hence, according to Dr. U.P.D. Kesari
inference that the doctrine of relating back has been revived by the decision of the
Supreme Court given in Sawan Ram’s case is totally ill-founded.125
The views of Dr. Paras Diwan are more sound and convincing. This
controversy will continue unless and until the Supreme Court clarifies the position
in this regard.

125 Dr. U.P.D. Kesari, Modern Hindu Law 6th Ed. P. 211-212.
 297

IX. Adoptive Parents Right to Dispose of Their Property

A question arises has the adoptive parents rights to dispose of their
property? Section 13 deals with the power of adoptive parents to dispose of the
property. Section 13 runs as follows -
“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 property by transfer
“intervivos” or by Will.”
This section codifies the old law that adoption does not deprive the
adoptive parent of his right to dispose of his property by transfer inter-vivos or by
will. This right is subject to a contract to the contrary. This section applies to
adoptions made after the coming into force of the Act.126
(A) Power of Disposal
This section confers an absolute power of disposal of property to adoptive
father or mother when there is no agreement to the contrary. But such power of
disposal is related to his or her property which implies that the property should be
absolutely vested in the adopter. Any self acquired property of the father or
mother falls into this category. This section thus enacts the general principle that
if adopter, at the time of adoption is absolute owner of some property the act of
adoption would not ordinarily disturb that right and therefore the adoptive parents
can exercise that right even after adoption. The principle applies whether the
adopter is male or female or the adopted child is a boy or girl. This section
protects those rights of disposal of property which existed at the time of adoption.
However, the gift of a coparcener’s property by an adoptive father would be void
and can be challenged by the adopted son.127

Tarachand v. Ram A War AIR 1975 P & H 20.

Mukandv. Wazir(1971)SC205,
 298

A transfer which is otherwise invalid or unenforceable will not become

valid or enforceable by virtue of this section. This section does apply to ancestral
or joint family property.
(B) Subject to Contrary Agreement
The agreement to the contrary referred to in this section a must obviously
be one imposing restriction on the rights of the adoptive father and mother. This
Section has to be read with Section 17 which prohibits the receipt of any payment
or any reward in consideration of the adoption. Where at the time of adoption the
adoptive father or mother enters into an agreement, with the natural parents or
guardian of the adopted child, where the right of disposal of property of the
former is restricted, such agreement is enforceable only when there is no such
agreement to the contrary, the adoptive father or mother is free to dispose of his or
her property as he or she likes by transfer inter-vivos or by will.
In Binabai v. Wasudev,128 the Bombay high court has held that the power
of adoptive parents to alienate the property which vests in them can be curtailed
only by an agreement and it must have a valid limitation and not only legal result
of adoption. Thus, where there was a covenant in the adoption deed whereby the
widow deprived herself of property and conferred that right on the adopted son
but the deed was not registered, the Supreme Court held that an unregistered
document would not be admissible in evidence in view of section 49 of the
Registration Act and the alienation by the widow after adoption will be valid.129
But a Division Bench of the Bombay High Court has held that an oral
relinquishment of the widow in favour of adopted child is valid and effective.130
In the adoption deed mere words ‘the child would be owner of the property’ is
statement of law, so does not affect the disposing power of the parents.131 In
Tupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao,m there was Ante

128 AIR 1979 Bom. 181.

129 Dinaji v. Daddi AIR 1990 SC 1153.
130 Hirabaiv. Babu manika Ingale, AIR 1980 Bom. 315.
131 Sorawar Singh v. Kanwal AIR 2003 Raj. 107.
132 AIR 2003 SC 3314.
 299

adoption agreement between a major would be adoptee and would be adoptive

father stipulating that the former would not claim any right or interest in certain
specified properties of the latter. The parties belonged to a community in which
adoption after the age limit under S. 10. (iv) was permissible. The validity of
such agreement was challenged before the court. It was held by the court that the
agreement is valid under the law prevalent prior to enactment of the 1956 Act and
is not by 17(1) thereof. It was further held that overriding affect of S. 17 did not
extend to changing of the said earlier legal position.
In Chiranjilal Srilal Goeenka v. Jasjit Singh and other,133 the question
relating to right of adoptive to dispose of property by will came for discussion and
decision before the Supreme Court. In the instant case, the photocopy of the letter
presumed to be written by natural father to the adoptive father at the time of
adoption was produced. This particular letter was signed by a number of persons.
But it was not accepted by the adoptive father and he had not put his signatures on
that letter. This letter indicated that the adopted son would inherit the property of
the father. However, it was made clear in that letter that during the life time of
adoptive father and adoptive mother they were the absolute owner of their
properties. There was nothing to indicate in this letter that there was any contract
restraining the adoptive parents to dispose of their property by transfer or by Will.
This means that there was no agreement between the natural father and the
adoptive father and it was only unilateral offer. The letter only indicates that after
the death of the adoptive parents, the adopted son would be the heir and would
have right over all movable and immovable properties left by the parents. Later
on, the adopted parents wanted to execute a will relating to their property. The
execution of the will by the adoptive parents was challenged before the Court.
It was held by the court that the terms of the letter do not restrain the
adoptive father to execute the will and the letter written was only a unilateral offer
to put restriction upon the adoptive parents. There was no valid agreement

133
AIR 2001 SC 266.
 300

between natural parents and the adoptive parents have every right to enjoy their
property. Even if there is a valid agreement the adopted child cannot claim the
possession of the property from their adoptive parents during their life. The child
would be entitled to the enjoyment of the property only after the death of the
adoptive parents.
In Ugre Gowda v. Nage Godwa134 the Supreme Court observed that an
adoption of son does not deprive the adoptive mother to dispose of her separate
property by transfer or by will. The . deed of adoption which was not properly
stamped cannot confer any right on the adopted child.
X. Determination of Adoptive Mother in certain cases
Section 14 of the Act deals with the relationship of the adopted child with
certain relationship of adopter, Section 14 runs as under:-
(1) Where a Hindu who has a wife living adopt a child, she shall be deemed to
be the adoptive mother.
(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 adoptive
mother and the others to be stepmothers.
(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 step-father of the
adopted child.
Where a Hindu Male who has a wife living adopts a child with the consent
of the wife she shall be deemed to be the adoptive mother of the child. However,
if the child has been adopted without the consent of the wife and consent has been
dispensed with, the child will be related only to the father and the child will have
only one line i.e. the paternal line. The child will have not relationship with the

134
AIR 2004 SC 784.
 301

wife of the adoptive father. Where a child has been adopted with the consent of
more than one wives (it can be possible in a case of marriage before the passing of
the Hindu Marriage Act, 1955) the senior most in marriage shall be the adoptive
mother and other will be the stepmother of the child. Here we are concerned with
the seniority of the marriage not of age. If a child has been adopted by widower
or a bachelor or a divorce and he subsequently marries, the wife of the adoptive
father will the step-mother of the child in the same manner where a widow or
unmarried woman adopts a child and subsequently get married, her husband will
be deemed to be step-father of the child. Section 14 clearly indicates that when a
child is adopted by a widow then the child is only related to her. The child has no
relationship with the deceased husband of the widow. But the theory of a relation
back has been revised through judicial decisions. The revival of the theory is
totally against the provisions given in Section 14 of the Act.
This section does not deal with a case where the wife adopts during the
life time of the husband, when he has renounced the world or ceased to be Hindu
or declared to be of unsound mind. According to Mayne :
It is submitted there is no reason why he should not be considered father
of the adopted child, though he may not have certain rights in view of his
renunciation, conversion or insanity as the case may be. In particular, if he
reverts to mundane life or gets himself reconverted to Hinduism or recovers his
sanity he should be regarded in every sense the adoptive father of the child.
Difficulty may arise in case of divorced woman making an adoption and
subsequently marrying the same person. The former divorced husband when she
remarries should be regarded only as the step father.
XI. Section 14 and the Hindu Succession Act
The importance on the section lies not only for the purpose of adoption
(such as a step mother of an adopted child when becomes a widow can make an
adoption for herself) but in respect of succession under the Hindu Succession Act,

135 See Mayne’s Hindu Law and Usage, 15th Ed. P. 577.
 302

mother of Hindu Male is class I heir, while step-mother is class II, category VI. A
step father is not an heir under the Act. Similarly, step child is not an heir to its
step-father or step mother. Thus for the purpose of inheritance Section 14 is very
important. It is also important in respect of maintenance and guardianship, as one
is a natural guardian only for one’s children but not of step children.
XII. Revocation of Adoption
Section 15 of the which is given below deals with cancellation of
adoption.
S. 15 Valid Adoption Not be Cancelled
No adoption which has. been validly made can be cancelled by the
adoptive father or mother or any other person, nor can the adopted child renounce
his or her status as such and return to the family of his or her birth.
This section lays down the following propositions of law:
A. No adoptive parent can cancel the adoption once made validly.
B. No adopted child can renounce his status of an adopted child or his
adopted parent once adoption is made validly. Neither he or she go back
to his or her natural family. >
C. No natural parent can cancel the adoption
D. No one else has the power or right to cancel a valid adoption.
This section underlines the irrevocability of a validly performed adoption.
Since the legal fiction raised to justify adoption is that the adoptive child is bom
in the family of the adoptive father to the adoptive parents, it is desirable that
nothing should be allowed to cancel this act of adoption. This section deals only
with the permanency of adoption and is not concerned with the relative rights of
parties to the adoption in the family properties. It reinforces the position under
the old law where the rights to property of the adopter or the adoptee could be
modified under certain conditions but the adoptee could never renounce his status
of being an adopted child.
 303

Adoption is not a matter of contract but is a matter of status. As such once

an adoption is validly made it cannot be cancelled by any of the parties concerned
in the adoption.136 The expression “no adoption which has been made can be
cancelled” does not necessarily mean that the section has a retrospective effect.
The concept of ‘cancellation’ presupposes the existence of a complete act which
is sought to be cancelled and hence while providing for cancellation of that act a
present perfect lense has to be used.
In Daniraiji Maharaj v. Srichandra Prabha, die Supreme Court had to
consider whether the customary form of adoption prevalent in Vallabhakul (viz.
Goda Datta form) which could be revoked and annulled at the instance of the
adopter or the adoptee according to custom, could be revoked after the
commencement of this Act. The majority of the judges (Mathew, J, dissenting)
held that it could be revoked. Justice Bhagwati expressed the view that section 15
of the Act which prohibits the cancellation of an adoption applies only to an
adoption made after the commencement of the Act in accordance with its
provisions and has no application to an adoption made prior to the Act. He
further held that the second part of section 30 is introduced out of abundant
caution with a view to emphasizing the validity and effect of an adoption made
before the Act. According to him, it is clear from the first part of section 30 that
the legislature intended to exclude the applicability of all provisions contained in
the Act, to an adoption made before the Act and not merely the applicability of
provisions which affect the validity and effect of such adoption. The expression
‘affect’ in the first part of section 30 means ‘touch or concern’. It is therefore
clear that section 30 provides that nothing contained in the Act including section
15 will apply to an adoption made prior to the Act. Such an adoption which could
be cancelled prior to the Act, could also be cancelled after the Act.

Gulkandi v. Prahlad 1968 Raj. 51, 56; ILR (1966)16 Raj 1047:1967 R. LW 63.
1975 SC 784: (1975)3 SCR 32: (1975) 1 SCC 612.
 304

Justice Untwalia observed that the expression ‘affect any adoption’ would
mean affect on adoption as to the validity and effect only. The incident of
revocability was not a matter concerned with the validity and effect of the
adoption. Hence, the adoption could be revoked. Justice Mathew however
dissented and held that the custom of adoption in Goda Datta form had been
abrogated by virtue of section 4 read with section 5 of the Act The custom of
revoking the adoption is dependent upon the continuance of the custom of making
the adoption. With the abrogation of the custom of making the adoption, the
custom of cancellation also stood abrogated and hence it could not be cancelled
after the Act. Section 30 saved only the validity and effect of the adoption but did
not save the incidents of revocability and hence the adoption could not be revoked
after the Act.
Where the adoptive father did not show any affection and the boy came
back and started living with natural father, the natural father died during service
and the boy sought appointment under the rehabilitation scheme, it was held that
he was not entitled to any relief.138
If it is proved that the adoption was valid, it cannot be cancelled in any
circumstances. This particular provision was kept to protect the adopted child
from wavering minded adopted parents who may like to cancel adoption after
adopting the child. If a person had adopted a child and subsequently a natural
bom child is bom to him, the person may like to cancel adoption and it may cause
great hardship for the adopted child. But it may cause unnecessary hardship for
adopted child in a number of cases also.
Suppose, the adopted child is ill-treated or has been abandoned by the
adoptive parents, the child cannot revert back to his/her parents. Thus, there must
be a provision for cancellation of adoption by the prior approval of the court in

Dipti Balihar Singh v. Board of Secondary Education AIR 1999 Ori. 166(DB),
Santosh Kumar v. Chandra Kishore, AIR 2001 Pat. 125; Gulkandiv. Parlad AIR
1968 Raj. 51.
 305

certain exceptional circumstances. There is need of making amendment in this

regard.
XIII. Presumption as to registered documents relating to adoption
Whenever any document registered under any law for the time being
inforce is produced before any court purporting to record an adoption made and is
signed by the person giving and the person taking the child in adoption, the court
shall presume that the adoption has been made in compliance with the provisions
of this Act unless and until it is disproved.
This section deals with the significance of a registered deed of adoption in
evidence of a valid adoption having taken place. Normally, whenever the factum
and validity of an adoption is under question the burden lies on the person relying
on the adoption to prove beyond reasonable doubt that a valid adoption has taken
place. But the presence of a registered document pertaining to the adoption
changes this situation and when such document is produced it is mandatory on the
part of the court to presume that a valid adoption has taken place. Where there is
reliable evidence as to the factum of adoption, the adoption cannot be rejected
1 IQ
even if there is no registered adoption deed.
(A) Presumption of validity of adoption
Ordinarily, as an adoption results in changing the course of succession
depriving wives and daughters of their rights and transferring the properties to
comparative strangers or more remote relations it is necessary that the evidence to
support it be such that it is free from all suspicion of fraud, and so consistent and
probable as to leave no occasion for doubting its truth. As by an adoption, the
natural line of succession is disturbed a heavy burden lies on the party
propounding the adoption.140 But this onus shifts from the propounder of the

139
Chandrani Bai v. Pradeep Kumar 1991 MP 286:1991 (2) HLR 519 (MP).
140
Madhusudan Das v. Navaini Bai 1983 SC 114; (1983)1 SCC 35: 1983 HLR 475;
Arjun Banchhorv. Buchi Banchhor 1995 Ori. 32.
 306

adoption to the person who challenges the adoption once a registered document
recording the adoption is brought before any court.141 If the age of the adoptee is
in question the presumption in such a case is that he is less than 15 years of age.
If however it is proved that he is over 15 there is no presumption regarding the
custom permitting a boy over fifteen to be adopted and such a custom has to be
proved independently.142
Where the execution of a registered deed of adoption is challenged on the
ground that it was executed by fraud, coercion or undue influence and the
evidence necessary to be led in respect of an attested document has been tendered,
the burden of proving that the execution was so vitiated lies on the party
challenging the document.143
In order that the presumption as provided in the. section may be raised the
following conditions are to be complied with:
(i) there must be document;
(ii) it must be registered under the law in force;
(iii) it must purport to record an adoption which has taken place;
(iv) the document must be signed by both the parties i.e. the giver and
taker of the child in adoption;
(v) it must be produced before the court.
(B) Presumption Rebuttable
The presumption to be raised under this section is only a rebuttable
presumption. The presence of a registered deed does not finally decide the
question of genuineness of adoption. If any person want to disprove valid

Radhakrishna v. Bhuyan Sri Shyam 1964 Ori 136; fiabuddin v. Chandan Balasini
1977 Ori. 69; Annapurna v. Narendra 1967 Ori 129:33 Cut T 710; Golak Chandra
v. Kruibas 1979 Ori 205: 48 Cut LT 459; Sarwan Singh v. Gurdip Singh 1975
Rew LR (Punj.) 136; Basdeo v. Bhardwaj ILR (1968)2 Punj 2311; Devgonda v.
Show Godna 1992 Bom. 189.
Mahalingam v. Kannayyan (1989)2 MLJ 345.
Sushil Cnahdra v. Bhoop Kunwar 1977 All 441.
 307

adoption, the burden of proof lies on that person. It has to be rebutted by leading
cogent and credible evidence
In Dhano v. Thuli Ram,144 it was held that production of registered
document of adoption give rise to presumption that adoption has been made in
compliance with the provisions of the Act unless disproved.
In Shivada Ranlaswanli v. Karada Surya parkasha Rao,145 it was held that
production of registered document of adoption gives rise to presumption that
adoption has been made in compliance with the provisions of the Act unless
disproved.
In Barit v. Tej Pal146 registered adoption deed was challenged on the
ground that adequate ceremonies were not performed. It was held by the court.
Since, party challenging the adoption deed failed to disprove the deed,
presumption available and flowing from the recitals of the deed, cannot be
negated.
Majhi v. Duli Dei.141 The Rajasthan High Court has rightly observed148 that the
presumption of validity of adoption can also be raised when adoption has taken
place long back and the adopted son has been recognized to be such by the family
concerned. But the question or presumption has been considered in that light, as
necessary evidence may not be forthcoming on account of lapse of time. But
where the question of invalidity is based on admitted relationship of the adopter
with the mother of the adopted son and when it can be found that the son, who has
been adopted, could not have been adopted in law, then the question of raising of
presumption does not arise.

AIR 1996 P&H 203.

AIR 1993 AP 336.
AIR 1998 All 230.
AIR 1985 Ori 22, see also Sitaram Nai v. Puranmal Sonar, AIR 1985 Ori 171,
173.
148
Damodar Lalv. Lalli Lai, AIR 1985 Raj 55.
 308

The evidence advanced to prove the adoption must be beyond reproach

and the claim of adoption should not be spurious. In Rohasa pandiani case149
therefore, the Supreme Court through Thakkar, J., rightly observed that:
“In case of an adoption which is not
supported by a registered document or any other
evidence of a clinching nature if there exist
suspicious circumstances, the same must be
explained to the satisfaction of the conscience of the
court by the party contending that there was such an
adoption. Such is the position, as an adoption
would divert the normal and natural course of
succession. Experience of life shows that just as
there have been spurious claims about execution of
a will there have been spurious claims about
adoption having taken place. And the court has
therefore to be aware of the risk involved in
upholding the claim of adoption if there are
circumstances which arouse the suspicion of the
court and the conscience of the court is not satisfied
that the evidence preferred to support such an
adoption is beyond reproach.”
In Laxman v. Deputy Director of consolidation and others,150 it was held
by the Supreme Court that presumption under Section 16 is rebuttable by
evidence. In this case Deputy Director of Consolidation and High Court
examined the validity of the deed, of adoption in the light of evidence adduced by
both the parties and reached the conclusion that there was no valid adoption. The

Rohasa Pandiani v. Gokulananda Panda, (1987)2 SCC 338: AIR 1987 SC 962.
(1998)8 SCC 693.
 309

Supreme Court refused to interfere with such findings under Art. 136 of the
constitution. The facts of the case are given below:
On special leave being granted by court, this appeal was registered. The
dispute arises out of a consolidation proceeding. The appellant claimed entry in
respect of Khatas in question which admittedly belonged to Udit, on the basis of a
registered deed of adoption dated 27-6-1972. That claim was resisted by the
respondent Sita Ram who is admittedly the son of the daughter of Udit. The
Settlement Officer, Consolidation; accepted the claim of the appellant. On
revision being filed, the Deputy Director of Consolidation on consideration of the
materials on record came to the conclusion that although the deed of adoption had
been executed, but in fact, the appellant had not been adopted by Udit. The
Deputy Director, in support of the aforesaid finding, referred to the evidence on
record including the evidence of Tulsi who is the nephew of Udit. Tulsi denied
that any adoption had taken place. The Deputy Director also pointed out that in
the deed of adoption it had been stated that Udit had no issue whereas, in fact,
Udit had a daughter who predeceased him and the aforesaid Sita Ram is the son of
the said daughter. The finding recorded by the Deputy Director has been affirmed
by the High Court while dismissing the writ petition filed on behalf of the
appellant. The High Court has said:
“In this case, apart from the registered adoption deed referred to above,
oral evidence was also led by the parties in support of or to rebut the alleged
adoption. The petitioenr’s natural father Daya Ram and one Karamat were
examined as witnesses on his behalf. On behalf of the opposite party, Tulsi, uncle
of Daya Ram, was also examined. This Tulsi denied that any adoption had taken
place. The Deputy Director has discussed the entire evidence and has disbelieved
the evidence led by the petitioner and has believed the statement of Tulsi to the
effect that no adoption had taken place. When evidence is led by both the parties,
the question of onus loses importance to some extent. Moreover, the presumption
raised by Section 16 is undoubtedly rebuttable and if on an appraisal of evidence
 310

and the circumstances it is held that no adoption actually took place, the finding
cannot be assailed merely on the ground that the Deputy Director has not
expressly referred to the provisiosn of section 16 in his order. The provisions of
Section 16 were expressly referred to in the appellate order of the Settlement
Officer which was before the Deputy Director, and it is obvious that the
provisions were present to his mind, Among the reasons given for disbelieving
the alleged adoption he has pointed out that the said adoption deed mentions that
the executants Udit had no issue at all who could inherit the property after his
death. Learned counsel for the petitioner has tried to explain this recital by
contending that what Udit meant by saying that he had no issue was that he had
no male issue. This explanation was not found satisfactory either by the
Consolidation Officer who had the opportunity of hearing and seeing the
witnesses or by the Deputy Director.”
In Rajeev Bahtia v. Govt, of NCT Delhi,151 the registered adoption deed
challenged in petition for writ of Habeas corpus. The custody of the child was
awarded to petitioner natural mother on the basis of child’s preference till
decision regarding validity of adoption deed reached by civil court.
In Chairman Bihar Rajya Vidyut Board v. Chhatu Ram,152 the question of
compassionate appointment and the validity of adoption deed was considered by
the Supreme Court. In this case the adoption deed was not signed by the person
giving and the person taking the child in adoption and there was no indication of
registration thereof. It was held by the court that no presumption relating to
validity of adoption could have been drawn. Hence the appellant. Board could
not be faulted for denying compassionate appointment to the adopted son on the
basis of such adoption deed.
In Jai Singh v. Shakuntala,153 the question for consideration before the
court was :

AIR 1999 SC 3284.

(1995)5 SCC 673.
AIR (2002) 3 SCC 634.
 311

Whether conduct of person seeking benefit of adoption deed may be taken

into account while considering the validity of adoption? In this case appellant J,
on the basis of adoption deed claimed to be the adopted son of R, deceased father
of the respondent S. The Adoption deed records that the parents of J had given
him in adoption to R and he had taken him on his Rap.
No specific ceremonies have been noted neither any evidence is tendered
pertaining to adoption. The evidence on record showed that in other unrelated
proceedings and also in voter’s list, dated before death of R, J had described
himself as son of his natural father. The adoption deed expressly conferred on J
“the same rights as a natural son.” The purported will of R not only disinherited
S, his daughter, but also stated that any claim by her in future ‘should be rejected’.
It was held by the court:
“That it is true that the registered instrument of
adoption presumably stands out to be taken to be
correct but the court is not precluded from looking
into upon production of some evidence contra the
adoption. Evidence, which is made available to the
court for reubutting the presumption, can always be
looked into”154
The Supreme Court dismissed the appeal and upheld the decision of the
High Court negating the adoption.
(C) Factum of Adoption
Adoption is to be proved like any other fact when any dispute. In Madan
Lai v. Gopi,155 it was held by the Supreme Court this if there is no evidence to
show that necessary ceremonies of giving and taking were performed, the
adoption is invalid. Such adoption can’t confer any right on an adoption son.

154
Ibid P. 630.
155
AIR 1980 SC 1754
 312

Though the law does not prescribe too many formalities for adoption, yet,
some ceremony of giving and taking of the child needs to be established in
support of a valid adoption. In this context, the apex court judgment in Ram Das v
Gandiabai,156 is significant. The petitioner filed a suit for partition against the
deceased father’s brother. The latter alleged that the petitioner had no right over
the properties, as he was no longer a member of the family, because he had been
given away in adoption to a man whom his mother later married and who
maintained him.
The court did not accept this plea. It held that simply because the step­
father spent money on his maintenance does not by itself imply that he had been
adopted by the step-father. It was ^accordingly held that even though he was
brought up by the step-father, he continued to be a member of his deceased
father’s family, with all the rights of a son of that family.
Nilima Mukherjee v Kanta Bhushan Ghosh157 is another case decided by
the Supreme Court, where the issue of factum of adoption was raised in a tenancy
suit. The landlord filed an eviction suit against the appellant, who was a relative
of the tenant and used to stay in the suit premises, on the ground that after the
death of the tenant, the tenancy had become extinct and the appellant was a
trespasser. The appellant raised a plea that she was adopted by the deceased, and
according to her, the fact that she had a joint bank account with him was an
indication of this fact. Other than this, there was no document, no ceremony or
any evidence that she had been actually given in adoption by the deceased tenant.
The curt held that mere fact of having joint account was no proof of adoption.
Likewise, in Smt Dhanno v Tuhi Ram,158 which was a property dispute
based on some claims by virtue of adoption, the court refused to accept that there
was a valid adoption. The son claimed to be the adoptee, but treated his biological

AIR 1997 SC 1563 (from Bom).

AIR 2001 SC 2725 (Cal).
AIR 1996 P&H 203.
 313

father, rather than the alleged adoptive mother, as his parent. Besides, there was
no other evidence on record to show any ceremony regarding adoption. In these
circumstances, a mere placing of a registered adoption deed on record, without
proving the factum of adoption, was held to be not enough evidence of adoption.
The court observed:159
Evidence in support of adoption must be sufficient to satisfy the heavy
burden that rests upon any person who seeks to displace the natural
succession by alleging the adoption.
In Prafulla Bala Mubherjee v Satish Chandra Mukherjee,160 the ‘adoptive’
mother sought a decree for declaration of absolute right, title and interest in
respect of the property built by the adopted son, and also a decree for perpetual
injunction restraining his relatives, the defendants, from interfering with
occupation and possession of the property. According to the court, the mere fact
that an allegedly adopted son permitted his ‘adoptive’ mother and her family to
live in his house was no proof of adoption. On the contrary, there were several
facts to disprove the adoption like- the adopted son treating his natural mother as
his mother till his own death; appointing her as his nominee in the insurance
policy, provident fund etc; performing the shradha ceremony of his natural father,
and on his own death, his shradha ceremony being performed by his brother.
The plea of adoption was rejected in Suma Bewa v KB NayaJc161 also, as
there was no sufficient proof. There was no document executed by the parties in
support of the alleged adoption, no contemporaneous document recording the
name of the adopted son as the son of the adoptive father, nor any document to
show that the name of the adoptive father was recorded in the service book of the
adopted son. On the contrary, the voter’s list indicated the name of the natural
father. Besides, oral evidence was found to be suspicious; no independent
witnesses were examined to prove an adoption ceremony nor a single neighbour

159
Ibid, p 206
160
AIR 1998 Cal 86.
161
AIR 1998 Ori 29.
 314

examined to testify that the adoptive father and the adopted son were living
together and addressing each other as such. There is a statutory presumption in
favour of adoption when there is a registered document under s 16 of the Act,
‘unless and until it is disproved5. Thus there is flexibility and where there is
evidence against adoption despite a registered document, the court would not
recognize the adoption.162
However, if there is sufficient evidence of adoption, the same cannot be
easily displaced. Thus, in Chandan Bilasini v Aftabuddin Khan,163 where there
was enough evidence of adoption, the mere fact that the adoptive mother, who
was an old lady of 86, and some other persons who were present at the adoption
ceremony, could not be produced in the court for giving evidence, was held not to
be enough to assail the validity of the adoption.
In Raushen Devi v. Ramji Shah164 and other, the appellant field a suit her
declaration that the deed of adoption executed by her husband in favour of
defendant165 was void. It was alleged that she did not give her consent for alleged
adoption and there was no ceremony of giving and taking. She also pleaded that
having realized his mistake, her husband executed the deed of cancellation soon
after adoption. The trial court accepted her plea and held that there was no valid
adoption. These findings were reversed by the first appellate court, the final court
of fact. The second appeal was dismissed by the High Court holding that no
substantial question of law was involved.
It was held by the Supreme Court that the matter is essentially one of fact
on which the first appellate court, which is the final court of fact, has recorded a
specific finding based on the evidence on record that plaintiff had given her
consent to the proposed adoption and the requirement of giving and taking for a

Jai Singh v Shakuntala AIR 2002 SC 1428 (P&H).

AIR 1996 SC 591; Karan Chand v Balijit AIR 1990 P&H 220 where it was held
that a registered deed raises a presumption of. a valid adoption and this
presumption cannot be rebutted by minor discrepancies in evidence.
164
AIR 1980 SC 1754.
165
AIR 2002 SC 2416.
 valid adoption having been fulfilled the adoption cannot be said to be invalid on
any account If the adoption is valid, subsequent execution of the deed of
cancellation does not affect the status of the adopted child.
In Bhawar Lai v. State of it was again reiterated by the Supreme
Court that adoption is a pure question of fact. In this case a suit for declaration
that appellant was the adopted son of Dhanna Lai was filed along with his mother
Jadav Bai. The suit was decreed by the lower court but the decree was set aside
by the lower appellate court. The Supreme Court went through the judgments of
the High Court and the lower appellate court. The Supreme Court did not.
interfere with the findings of the lower court since adoption is a pure question of
fact.
In Kashi Nath v. Jaganath,161 the question involved pertained to the

succession rights of an adopted son, Kashi Nath, who was adopted by Thakuiji
Shri Gopalji temple’s priest Bela Bux in Jaipur 1941. The court of Civil Judge
and Additional District Judge dismissed his suit claiming the right of succession
as ‘pujari ’ of the temple after the death of Bella Bux in the early sixties. In
second appeal it was held by the High Court that High Court can not reappriciate
the evidence and interfere with the concurrent findings of fact of courts below.
The question of adoption being a question of fact, the High Court declined to
interfere with the findings of the lower court. The case came before the Apex
''‘Ctfttffitf'ttGS f0riff“af‘SLP: It was said''by'ftier "apex-eourt'that there-was no
'cbnsiltendy^abdut Bela Biik and 4iirwife

Nangi, particularly regarding the time it was actually made. It was held that
pleadings and evidence are at variance. Thus, such evidence can not be relied
upon. Further held, an adverse inference is to be drawn when pleading and
evidence are self-contradictory. The court held that there must be clear proof of
adoption like other facts.

166
(2002)10 SCC 143.
167
(2003)8 SCC 7400.
 318

As we have discussed the theory of relation back has been abolished and the
widow has a right to adopt a son or a daughter in her own right. But it is
unfortunate that the doctrine of relation back has again been revived by the
decisions of the supreme Court in a quest to find a father for the adopted son. If a
widow who is member of Mitakshara Joint Family adopts a son, the son is treated
as the son of her deceased husband and becomes coparcener with other
coparcener in the family. The same will be the position in case of adoption of a
daughter after the passing of the Hindu Succession (Amendment) Act, 2005. It is
going to decrease the share of the widow in the coparcenary property which is her
vested property. The adopted son/daughter has also right of partition but there is
some limitation on the reopening of partition which has already taken place before
adoption. The valid anti-adoption agreement are binding on the adopted child.
The adopted child can’t curtail the powers of the adoptive parents to dispose of
their property by transfer inter-vivos or by will unless there is contrary agreement
in this regard. The valid adoption can’t be cancelled in any circumstances. The
adopted child also can’t renounce his/her status. This provision is meant to
provide stability to the adopted child; But it also works against the interest of the
child in certain cases. The Registration of Adoption is not compulsory but
optional. Registration should be made compulsory to avoid future complications.
Sometimes it becomes very difficult to prove the fact of adoption. The adoptive
parents may deny the fact of adoption if a child is bom to them after adoption of a
child. It will create complication for the adopted child as all his/her ties, in the
'natural family have been snapped. This aspect is to be kept in mind while
adopting a child or white giving a child in adoption.
 317

Adoption. Sub-section (2) provides penalty for contravention of the prohibition

enacted in the first clause and says that the contravention will be punishable with
imprisonment that may extend to six months or with fine or both.
The law being new if applied directly will work undue hardship and word
“shall be punishable” instead of word “shall be punished” give discretion to the
court in matter of pronouncement having regard to the circumstances of the case.
Sub section - (3) provides that no prosecution in this section will be instituted
without the previous sanction of the State Government or an officer authorized by
the State Government in this regard. This is necessary till the public is
sufficiently educated and acquainted with the penal provisions of the enactment.
The State Government is supposed to see that there is no unnecessary prosecution
launched against innocent persons.
The agreement to take anything in consideration of adoption is unlawful
and void, but if adoption is made in consequences thereof the adoption will
remain valid.
XV. Savings Section 30
Nothing contained in this Act shall affect any adoption made before the
commencement of this Act and the validity and effects of any such adoption shall
be determined as if this Act had not been passed.
As we have already discussed, the Act is prospective in its operation as it
states that nothing contained in this Act shall affect any adoption made before the
commencement of this Act. It further states, that the validity and effect of any
such adoption which took place prior to this Act shall be determined as if this Act
had not been passed. That means the validity and effect of such adoption has to
be determined under old Law of adoption. Section 5 of this Act clearly states that
adoptions which take place after the commencement of this Act shall be made in
accordance with the provisions of this Act. The adoptions prior to the Act are
governed by old Hindu Law principles.
Thus a valid adoption has very significant effects in the natural family as
well as in the adopted family. The child is considered to be civilly dead in the
natural family and all types of relationship is established in the adopted family.