KALINDI DAMODAR GARDE (D) BY LRS.versusMANOHAR LAXMAN KULKARNI (D) BY LRS. & ORS. ETC.

632                      [2020]REPORTS
               SUPREME COURT    2 S.C.R. 632                [2020] 2 S.C.R.


A                KALINDI DAMODAR GARDE (D) BY LRS.
                                        v.
      MANOHAR LAXMAN KULKARNI (D) BY LRS. & ORS. ETC.
                      (Civil Appeal Nos. 6642-6643 of 2010)
B                             FEBRUARY 07, 2020
           [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
            Succession:
             Whether the sons of adoptee (who were born prior to his
C     adoption) are entitled to inherit the property of the adoptive family
      of their father – Held: Succession in the present case in the facts of
      the case has to be decided in accordance with Hindu Succession
      Act and not as per Hindu Law –There is no provision in the Act
      denying the right of succession to the natural born son of an adoptee
      father – All the children either born before or after adoption of
D
      their father, in terms of s. 3(a) and (e) and Schedule of the Act,
      being class I heirs, have right to inherit the property of their father
      – Hindu Succession Act, 1956 – s. 3(a) and (e), Schedule.
            Hindu Succession Act, 1956:
E           s. 4 – The Act has overriding effect over all the texts, rule or
      interpretation of Hindu Law or any custom or usage as part of that
      law in force immediately before commencement of the Act.
            Dismissing the appeals, the Court
             HELD: 1. The Hindu Succession Act overrides all text,
F     rule or interpretation of Hindu law or any custom or usage as
      part of that law in force immediately before the commencement
      of this Act. Since the succession has opened after the death of ‘L’
      in January 1987, therefore, succession has to be in accordance
      with the Act and not as per Hindu law as all text, rule or
G     interpretation of Hindu law prior to commencement of the Act
      have ceased to have any effect unless expressly provided for in
      the said Act. [Paras 12 and 13][640-B, D-E]
            2. Since there is no provision of denying the rights of
      succession to the natural born son of an adoptee father, therefore,
H
                                       632
  KALINDI DAMODAR GARDE (D) BY LRS. v. MANOHAR                          633
           LAXMAN KULKARNI (D) BY LRS.

the succession will be in terms of the provisions of the Act alone.     A
The three sons and the appellant-daughter are born to ‘L’ and
his wife. They are agnates and related by full blood in terms of
Section 3(a) and 3(e) of the Act. As per the Schedule to the Act,
the son and the daughter of a deceased Hindu male are class I
heirs. [Paras 15 and 16][641-B-C]
                                                                        B
      3. In view of the provisions of the Act which do not make
any distinction between the son born to a father prior or after
adoption of his father and that there is no provision which bars
the natural born son to inherit the property of his natural father,
therefore, the High Court has rightly upheld the rights of the
sons of ‘L’. There was a full blood relationship between the three      C
sons and the daughter who was born after adoption. All the
children of ‘L’ are entitled to inherit the property of their natural
father and mother in accordance with the provisions of the Act as
succession has opened after the death of ‘L’ in 1987 and
subsequently the mother in the year 1992. [Para 21][645-D-G]            D
      Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap
      Deo (1981) 4 SCC 613 : [1982] SCR 417; Bhanwar
      Singh v. Puran & Ors. (2008) 3 SCC 87 : [2008] 2
      SCR 775 – relied on.
      Martand Jiwajee Patil & Anr. v. Narayan Krishna                   E
      Gumast-Patil & Anr. AIR 1939 Bom 305 – approved.
      Kalgavda Tavanappa Patil v. Somappa Tamangavda
      Patil & Anr. ILR (1909) 33 Bom 669 – not approved.
      Tewari Raghuraj Chandra & Ors. v. Rani Subhadra                   F
      Kunwar & Ors. AIR 1928 PC 87; Kausalyabai W/o
      Jagdeorao v. Devkabai W/o Jaiwantrao Deshmukh
      (1978) 16 Mh.L.J. 357– referred to.
                       Case Law Reference
ILR (1909) 33 Bom 669          not approved            Para 6           G
AIR 1939 Bom 305               approved                Para 7
[1982] SCR 417                 relied on               Para 13


                                                                        H
634             SUPREME COURT REPORTS                            [2020] 2 S.C.R.


A     [2008] 2 SCR 775                   relied on                  Para 14
      AIR 1928 PC 87                     referred to                Para 18
      (1978) 16 Mh.L.J. 357              referred to                Para 19
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6642-
B     6643 of 2010.
            From the Judgment and Order dated 11.12.2006 of the High Court
      of Judicature at Bombay in Writ Petition No. 4650 of 1992 and First
      Appeal No. 555 of 2005.
            R. Venkataramani, Sr. Adv., Sreenath S., Yashraj Singh Bundela,
C     M. Praveen Vignesh, Sriram P., John Mathew, Advs. for the Appellants.
           Vinay Navare, Sr. Adv., Ms. Gwen Karthika, Ms. Abha R.
      Sharma, Ms. Asha Gopalan Nair, Vijay Kumar, Makarand D. Adkar,
      Vishwajit Singh, R.C. Sharma, Advs. for the Respondents.
            The Judgment of the Court was delivered by
D
            HEMANT GUPTA, J.
              1. The present appeals arise out of an order passed by the learned
      Single Bench of the High Court of Judicature at Bombay on
      11th December, 2006 deciding writ petition disputing the orders passed
E     by the Revenue Authorities excluding the names of the sons of Laxman
      natural born son of Pandurang, on the ground that they have no right,
      title or interest in relation to suit property as they were born prior to the
      date of adoption of Laxman. The first appeal filed by the natural daughter
      of Laxman was dismissed along with the writ petition holding that the
      sons born to Laxman prior to adoption are the heirs of Laxman and are
F     entitled to his estate along with the daughter born to Laxman after his
      adoption.
              2. The facts are that Laxman was given in adoption to Saraswati
      on 2nd November, 1935. Laxman had three sons Gangadhar aged 4 years
      5 months; Dattatraya aged 2 years 5 months and Manohar aged 9 months
G     at the time of his adoption. After adoption, Laxman and his wife Padmavati
      joined the family of Saraswati along with their 3 sons. It was in the year
      1938, daughter Kalindi was born to Laxman and Padmavati. The natural
      father of Laxman, Pandurang effected partition in respect of his joint
      family property on 30th December, 1948 wherein Laxman was excluded
H     from any share as he had gone in adoption to Saraswati.
      KALINDI DAMODAR GARDE (D) BY LRS. v. MANOHAR                            635
      LAXMAN KULKARNI (D) BY LRS. [HEMANT GUPTA, J.]

       3. Laxman died on 10th January, 1987. Saraswati had predeceased        A
Laxman. After the death of Saraswati, Laxman inherited the property
of Saraswati which is the subject matter of the present appeals. After
the death of Laxman, his daughter Kalindi applied for effecting the change
in the village revenue record for inclusion of her mother Padmavati and
herself as owners. The mutation was entered on 11th March, 1987. The
                                                                              B
matter was taken at various stages thereafter. The revision filed by
Manohar, son of Laxman, was dismissed on 8 th September, 1992.
Aggrieved, Manohar had filed the writ petition.
        4. Padmavati, wife of Laxman, died on 10th October, 1992 leaving
a registered Will dated 21st May, 1987 in which she had bequeathed her
share to her 3 sons which were born prior to the date of adoption. On         C
20 th October, 1996, Gangadhar, one of the sons of Laxman and
Padmavati, died. Thereafter, Dattatraya, the second son filed a suit for
partition, separate possession and mesne profit against forcible possession
by Kalindi. This suit was decreed on 13th November, 2004. The main
contest of the parties was on the question as to whether the three sons       D
of Laxman born before adoption in 1935, namely, Gangadhar, Dattatraya
and Manohar are entitled to inherit the property in adoptive family of
Laxman after his death.
        5. In a suit by Kalindi, the daughter born to Laxman and Padmavati,
she had taken a plea that the sons born before adoption have no right,        E
title or interest in the properties left behind by Laxman and she being a
daughter born to Laxman after his adoption would inherit the entire
property along with Padmavati, her mother. Both the matters were taken
up for hearing together wherein the learned Single Bench relying upon
Section 8 of the Hindu Succession Act, 19561 held that the son born
before adoption is entitled to succeed to the property of their father.       F

       6. Before this Court, Mr. Venkataramani, learned senior counsel
for the appellants relied upon judgment of Division Bench of Bombay
High Court reported as Kalgavda Tavanappa Patil v. Somappa
Tamangavda Patil & Anr.2 wherein it has been held as under:
                                                                              G
         “The son, then, begotten by an adopted Hindu before adoption
         has vested rights in the ancestral property of the family of his
         birth. Rights of property once vested cannot be taken away except

1
    for short, ‘Act’
2
    ILR (1909) 33 Bom 669                                                     H
636            SUPREME COURT REPORTS                           [2020] 2 S.C.R.


A           in the mode or modes prescribed by Hindu Law. They cease either
            by death, sale, gift, degradation, disqualification or by adoption.
            In the case of a son whose father has been given in adoption after
            his birth, if none of these modes for the extinction of his vested
            rights of property applies, there must be the clear authority of
            some text for holding that the rights in question are extinguished
B           because the father of the owner of those rights, having been given
            in adoption, has his rights in his natural family extinguished by the
            act of adoption.”
             7. The argument is that the wife of an adoptee passes with her
      husband to the adopted family but not the sons born to an adoptee before
C     his adoption. They continue to be members in the family in which their
      father was naturally born. Mr. Venkataramani, learned senior counsel
      for the appellants vehemently argued that the codified Hindu Law has
      not provided that the children born to an adoptee before adoption will be
      entitled to inherit the property in the adopted family, therefore, keeping
      in view the interpretation of Hindu Law as interpreted in Kalgavda
D
      Tavanappa Patil, the children born before adoption will not pass with
      the adoptee in the adopted family and are not entitled to the share in the
      estate of the adopted family.
            8. Learned senior counsel for the appellants relied upon the
      following quote from the judgment in Kalgavda Tavanappa Patil:
E
            “But it is argued that when a married man is given in adoption, his
            wife passes with him into the adoptive family—she, like him,
            acquires the new gotra; that what applies to the wife of the man
            adopted must apply to his son also, begotten before the adoption,
            because, both according to the Smriti writers and their
F           commentators, a man’s wife and sons go together. In support of
            this argument reliance is placed on a text of Narada cited by
            Vijnaneshvara in his chapter on “Resumption of Gifts” in the
            Mitakshara (p. 225, Moghe’s 3rd Ed).” (page 687)

G                      xx                       xx                         xx


            …………….But the text does not say that the son of that man,
            born before his adoption, ceases to be his son and loses the right
            to offer funeral oblations to his soul in case of his death. For one
H
     KALINDI DAMODAR GARDE (D) BY LRS. v. MANOHAR                                637
     LAXMAN KULKARNI (D) BY LRS. [HEMANT GUPTA, J.]

         thing, according to the Hindu Shastras, “by no means can you            A
         make your father cease to be” (Jaimini, Bibliotheoa Indica
         Series, Vol. I, p. 742). The mere fact that the father has gone into
         another family by adoption and ceased to be of his son’s gotra or
         family cannot unmake what he naturally is—the son’s father. The
         gotras of the two may differ in consequence of the adoption, but
         it is not always necessary for funeral ceremonies that the person       B
         performing them should be of the same gotra as the deceased. A
         sister’s son and a son-in-law can perform those ceremonies and
         yet they are not of the same gotra. So a son begotten before the
         adoption of his father would be entitled to perform the latter’s
         funeral ceremonies. All the Smriti says is that such ceremonies         C
         “shall be performed by a son.” It does not make the obligation
         dependent upon the continuance of the father in the same gotra
         as the son.” (Page 690)
      9. The Full Bench of Bombay High Court in Martand Jiwajee
Patil & Anr. v. Narayan Krishna Gumast-Patil & Anr.3 referred to
                                                                                 D
the aforesaid judgment when considering a case as to whether the
adoptee has a right to give his son, born prior to his adoption, in adoption.
The Court held as under:
         “In Raghuraj Chandra v. Subhadra Kunwar [(1928) L.R. 55
         I.A. 139 at p. 148, S.C. 30 Bom. L.R. 829.] their Lordships of the
         Privy Council after stating at p. 148 that though adoption is spoken    E
         of as “new birth” in many cases, a term sanctioned by the theory
         of Hindu law, yet “As has been more than once observed, the
         expressions ‘civilly dead or as if he had never been born in the
         family’ are not for all purposes correct or logically applicable, but
         they are complementary to the term ‘new birth’.” The                    F
         inapplicability of the theory can be illustrated by concrete
         instances:—
         (a) The tie of blood between the adopted son and the members of
         his natural family is not severed. He cannot marry in his natural
         family within the prohibited degrees, nor can he adopt from his
                                                                                 G
         natural family a boy whom he could not have adopted if he had
         remained in that family [Moottia Moodelly v. Uppon Vencata
         Charry]. [(1858) Mad. S.D. 117.]
                   xx                        xx                         xx
3
    AIR 1939 Bom 305                                                             H
638      SUPREME COURT REPORTS                            [2020] 2 S.C.R.


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

                xx                         xx                         xx

B
      These instances show that an adopted son is not civilly dead in his
      natural family nor reborn in his adoptive family.
      It is no doubt true that by giving away his son in adoption the
      adopted father indirectly meddles with the riktha or property of
      his natural family, since the effect of that adoption will be to
C
      extinguish the son’s interest in that property. But thereby the father
      himself gains no interest in the property. All that Manu’s text says
      is that he should not take for himself the gotra and riktha of his
      natural family, and does not prohibit him from doing any act which
      may affect the property of his natural family. Thus, for instance,
D     if he has a brother in his natural family, he is not prohibited from
      giving his son born after his own adoption, in adoption to that
      brother, although thereby the different interests in the property of
      his natural family are affected.

E               xx                         xx                         xx

      In the absence of any express text or judicial decision depriving
      an adopted son of his right to give away in adoption his son born
      before his adoption, we do not think that any useful purpose will
F     be served by imposing such a restriction upon him. The modern
      trend of decisions is to take a more liberal view and to interpret
      the texts from a practical point of view as far as possible. This is
      particularly noticeable in the decisions of this Court on several
      questions of adoption, such as the adoption of an only son, the
G     adoption of a married boy, the adoption of a boy whose mother
      the adopting father could not have legally married, and the adoption
      by a widow without the express consent of her husband. We do
      not see why a similar liberal view should not be taken in this case,
      having regard to the interests of the boy to be given in adoption.
      With his father actually living, it would be a hardship on the boy to
H
  KALINDI DAMODAR GARDE (D) BY LRS. v. MANOHAR                                639
  LAXMAN KULKARNI (D) BY LRS. [HEMANT GUPTA, J.]

      treat him as an orphan, merely because the father has gone in           A
      adoption. Usually when the father is adopted, his preborn sons
      are still minors, and in practice they go with their father to live
      with him, though legally they are held to have remained in the
      natural family of their father. Though the father has gone in
      adoption, the ties of affinity and love for his preborn sons cannot
                                                                              B
      be severed, and he is the proper man to look after their education
      and welfare. If a guardian is to be appointed for them, he will
      naturally be consulted. Having their interest at heart, he is the
      best person to decide whether one of them should be given in
      adoption and what is conducive to their benefit. By giving one of
      his sons in adoption he himself gains no benefit, and he may be         C
      safely trusted to exercise his discretion rightly for the good of his
      son, though born before his own adoption.”
      10. The Court held that the paternity of the father cannot be shaken
off even though he may leave the family, as, according to Hindu
Shastras,”By no means can you make your father cease to be,”. The             D
Court held as under:
      “It may be that in ancient and primitive society the son was
      regarded as hardly better than his father’s slave, and the prominent
      idea involved in an adoption was the transfer of dominion or patria
      potestas to the person adopting. But when the times changed and         E
      the status of the son was raised, the father’s power to give in
      adoption came to be founded on a different conception. The text
      of Vasishtha quoted in Dattaka Mimansa (sec. V, pl. 31), which is
      said to afford the foundation of the Hindu law of adoption, and
      which I have already referred to, recognizes the power of the
                                                                              F
      father and the mother to “give or sell or abandon” their son as he
      is “produced from their virile seed and uterine blood.” This
      paternity of the father cannot be shaken off even though he may
      leave the family, as, according to the Hindu Shastras “By no means
      can you make your father cease to be,” (Jaimini, Bibliotheca Indica
      Series, Volume I, p. 742). The same thing is expressed by               G
      Chandavarkar, J. in Kalgavda Tavanappa v. Somappa
      Tamangavda as follows (p. 690):—
          “The mere fact that the father has gone into another family by
          adoption and eased to be of his son’s gotra or family cannot
          unmake what he naturally is—the son’s father.”                      H
640                 SUPREME COURT REPORTS                          [2020] 2 S.C.R.


A            11. Though, the aforesaid judgment was in the context of the right
      of an adoptee to give his son born prior to his adoption, but the fact that
      the adoptee will remain the father of the son was recognised way back
      in 1939. Thus, the Judgment in Kalgavda Tavanappa Patil has not
      been accepted even under the Hindu Law.
B            12. However, the situation has undergone a complete change with
      the enactment of the Act. The said Act overrides all text, rule or
      interpretation of Hindu law or any custom or usage as part of that law in
      force immediately before the commencement of this Act. Section 4 of
      the Act reads as under:
C              “4. Overriding effect of Act. - Save as otherwise expressly
               provided in this Act,—
               (a) any text rule or interpretation of Hindu law or any custom or
               usage as part of that law in force immediately before the
               commencement of this Act shall cease to have effect with respect
D              to any matter for which provision is made in this Act;.
               (b) any other law in force immediately before the commencement
               of this Act shall cease to have effect in so far as it is inconsistent
               with any of the provisions contained in this Act.”
             13. Since the succession has opened after the death of Laxman
E              th
      on 10 January, 1987, therefore, succession has to be in accordance
      with the Act and not as per Hindu law as all text, rule or interpretation of
      Hindu law prior to commencement of the Act have ceased to have any
      effect unless expressly provided for in the said Act. This Court in a
      Judgment reported as Bhaiya Ramanuj Pratap Deo v. Lalu
F     Maheshanuj Pratap Deo4 held that a bare perusal of Section 4 would
      indicate that any custom or usage as part of Hindu law in force will
      cease to have effect after the enforcement of Hindu Succession Act
      with respect to any matter for which provision is made in the Act.
             14. The principle that the Act will be applicable on the date
      succession opens is well settled. Reference may be made to a judgment
G
      reported as Bhanwar Singh v. Puran & Ors.5, wherein this Court held
      that the Act brought about a sea of change in the matter of inheritance
      and succession amongst Hindus. Section 4 of the Act contains a non-

      4
          (1981) 4 SCC 613
      5
H         (2008) 3 SCC 87
  KALINDI DAMODAR GARDE (D) BY LRS. v. MANOHAR                               641
  LAXMAN KULKARNI (D) BY LRS. [HEMANT GUPTA, J.]

obstante provision in terms whereof any text, rule or interpretation of      A
Hindu Law or any custom or usage as part of that law in force immediately
before the commencement of the Act, ceased to have effect with respect
to any matter for which provision is made therein save as otherwise
expressly provided.
       15. Since there is no provision of denying the rights of succession   B
to the natural born son of an adoptee father, therefore, the succession
will be in terms of the provisions of the Act alone.
       16. It may be noticed that the three sons and Kalindi are born to
Laxman and his wife Padmavati. They are agnates and related by full
blood in terms of Section 3(a) and 3(e) of the Act. As per the Schedule      C
to the Act, the son and the daughter of a deceased Hindu male are class
I heirs. Some of the relevant provisions of the Act read as under:
      “3. Definitions and interpretation.- (1) In this Act, unless the
      context otherwise requires,—
      (a) “agnate”—one person is said to be an “agnate” of another if        D
      the two are related by blood or adoption wholly through males;


                 xx                       xx                        xx
                                                                             E
      (e) “full blood”, “half blood” and “uterine blood”—
      (i) two persons are said to be related to each other by full blood
      when they are descended from a common ancestor by the same
      wife, and by half blood when they are descended from a common
      ancestor but; by different wives;                                      F

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


                 xx                       xx                        xx

                                                                             H
642             SUPREME COURT REPORTS                             [2020] 2 S.C.R.


A            (j) “related” means related by legitimate kinship: Provided that
             illegitimate children shall be deemed to be related to their mothers
             and to one another, and their legitimate descendants shall be deemed
             to be related to them and to one another; and any word expressing
             relationship or denoting a relative shall be construed accordingly.
B
                        xx                         xx                          xx


             8. General rules of succession in the case of males.—The property
C            of a male Hindu dying intestate shall devolve according to the
             provisions of this Chapter—
             (a) firstly, upon the heirs, being the relatives specified in class I of
             the Schedule;
             (b) secondly, if there is no heir of class I, then upon the heirs,
D            being the relatives specified in class II of the Schedule;
             (c) xxxxx”


             17. The manner of inheritance under the Act, in the cases of
E     adoption of married persons before the enactment of the Act, has come
      up for consideration before the Learned Single Bench of Bombay High
      Court in an unreported Judgment (Dundyappa Laxman Karol v.
      Neelavva Chandrappa Jarali)6. In the said case, the plaintiffs were
      children of Shivappa, from his wife Gouravva, born before the adoption
F     of Shivappa. The claim was in the estate of Shivappa, who died on 17 th
      March 1957 that is after the commencement of the Act. Gouravva also
      died on 6th August 1957. The stand of the defendant was that the plaintiffs
      being children of Shivappa before he went in adoption were not entitled
      to inherit the property of Gouravva, which she inherited from her husband.
      The learned Single Bench noticed that the adoption of Shivappa took
G
      place long before the enactment of Hindu Adoptions and Maintenance
      Act, 1956 and thus adoption would be governed by Hindu law as it existed
      prior to enactment. The Court held that an adopted child is to be deemed
      6
       Second Appeal No. 556 of 1964 decided by Bombay High Court on 26 th November,
      1971.
H
     KALINDI DAMODAR GARDE (D) BY LRS. v. MANOHAR                                 643
     LAXMAN KULKARNI (D) BY LRS. [HEMANT GUPTA, J.]

as a child of his or her adoptive father or mother for all purposes with          A
effect from the date of the adoption. One important result of the severance
of the ties in the family of birth would be that the adoptee can no longer
claim any right to succeed to the property of his natural father or mother
or any of the relations in the family of birth. The question considered
was whether the children born prior to date of adoption of Shivappa               B
would be entitled to inherit the property on the death of Gouravva which
took place after coming into force of the Act. It was held that the property
inherited by a Hindu female howsoever acquired would be her absolute
property. The Court held as under:
         “…Broadly speaking, the property possessed by a Hindu female             C
         after the coming into force of the said Act would no longer be her
         limited estate but will be regarded as her absolute property and
         the intestate succession to such property would be governed by
         sections 15 and 16 of the Hindu Succession Act.

                                                                                  D
                     xx                       xx                         xx


         In my opinion, the fictional severance of ties with the natural family
         would not mean that her children would cease to be her children
                                                                                  E
         or can be considered to be not her children by means of a legal
         fiction. If by virtue of the definition in Section 3(j) even the
         illegitimate children of a Hindu female have been given a right to
         inherit her property, then it would not be permissible to say that
         her legitimate children should be excluded because they were
         born to her prior to the date of her husband’s adoption. If, however,    F
         the Legislature had specifically provided for this, then effect must
         be given to such a provision and the wishes of the Legislature
         respected. Where, however, there is no such clear provision, such
         exclusion would appear to be against the plain language of the
         enactment and it would not be proper to come to any such                 G
         conclusion.”
     18. It was found that the Privy Council decision reported as Tewari
Raghuraj Chandra & Ors. v. Rani Subhadra Kunwar & Ors.7 does

7
    AIR 1928 PC 87                                                                H
644               SUPREME COURT REPORTS                          [2020] 2 S.C.R.


A     not afford any guidance to the question as to whether the legitimate
      children born prior to adoption would cease to be included in the category
      of her children.
             19. The Division Bench of Bombay High Court in Kausalyabai
      W/o Jagdeorao v. Devkabai W/o Jaiwantrao Deshmukh 8 while
B     examining the right of a daughter born to an adoptee before his adoption,
      on the question as to whether she is entitled to inherit the estate of her
      father after the commencement of the Act, held as under:
               “33. Mr. Paranjpe fairly stated that he could not find any authority
               taking the view that such a daughter would cease to be the daughter
C              of her father because of his adoption. As far as we are aware,
               there is no text of any Dharmashashtra, which lays down that a
               daughter ceases to be a daughter the moment her father is given
               in adoption.
               34. The blood relation of the daughter and the father continued till
               the Hindu Succession Act came into force; and hence we are of
D              the view that Mr. Deo’s contention that the daughter, the defendant,
               was entitled to ]!th share in the suit lands, having regard to the
               provisions contained in ss. 8 and 15(b) read with s. 10, R. 1, must
               be upheld. The decree must, therefore, follow in favour of the
               plaintiff; only to the extent of \!th share in the suit lands.”
E            20. Similar view has been taken by the Division Bench of the
      Karnataka High Court in a judgment reported as Smt. Neelawwa v.
      Smt. Shivawwa9 wherein, the daughter of deceased Mallappa claimed
      half share in the suit property and the defendant claimed her right as a
      widow, being the step mother of the plaintiff. However, the defendant
      alleged that the plaintiff was born prior to the adoption. Mallappa was
F
      given in adoption in the year 1939 whereas the plaintiff was born in the
      year 1937. In this case, the Court held as under:
               “9……………………..In our view it means and includes
               moveable and immoveable property, whether separate or self
               acquired or an interest in a Mitakshara Coparcenary property
G              provided he has left him surviving any of the female heir or a
               daughter’s son mentioned in Class I of the Schedule to the Act.
               The fact that the deceased Mallappa had come to own and possess
               the suit land by reason of his adoption did not make any difference
      8
          (1978) 16 Mh.L.J. 357
H     9
          AIR 1989 Karnataka 45
   KALINDI DAMODAR GARDE (D) BY LRS. v. MANOHAR                                  645
   LAXMAN KULKARNI (D) BY LRS. [HEMANT GUPTA, J.]

       for the purpose of Section 8 of the Act as it was the property of         A
       Mallappa at the time of his death. Now we shall see whether the
       plaintiff cannot be considered to be an heir of her father merely
       because she was born before he was given in adoption. The
       expressions ‘heir’ and ‘related’ are also defined in Section 3(f)
       and (j) respectively of the Act. “Heir” means any person male or
       female who is entitled to succeed to the property of an intestate         B
       under the Act. “Related” means related by legitimate kinship. The
       proviso to this definition is not relevant for our purpose, because it
       is not in dispute that the plaintiff is the legitimate daughter of the
       deceased Mallappa born through his 1st wife. It is true, adoption
       had the effect of removing Mallappa from his natural family into          C
       the adoptive family, but did not and could not severe the tie of
       blood relationship between him and the plaintiff, or for that matter
       the members of his natural family. Therefore, the plaintiff
       irrespective of the adoption of her father continued to be the
       daughter of Mallappa. Thus the plaintiff being the daughter falls
       in the category of heirs specified in Class I of the Schedule to the      D
       Act……………”
       21. In view of the provisions of the Act which do not make any
distinction between the son born to a father prior or after adoption of his
father and that there is no provision which bars the natural born son to
inherit the property of his natural father, therefore, the High Court has        E
rightly upheld the rights of the sons of Laxman. In fact, in the Full Bench
judgment of Bombay High Court in Martand Jiwajee Patil, it has been
held that the natural father retains the right to give in adoption his son
born before his own adoption. Therefore, if he has a right to give his son
in adoption, such son has a right to inherit property by virtue of being an
agnate. There was a full blood relationship between the three sons and           F
the daughter who was born after adoption. All the children of Laxman
are entitled to inherit the property of their natural father and mother in
accordance with the provisions of the Act as succession has opened
after the death of Laxman in 1987 and subsequently the mother in the
year 1992.                                                                       G
       22. In view thereof, we do not find any error in the judgment of
the learned Single Bench of the Bombay High Court. Accordingly, the
appeals are dismissed.


Kalpana K. Tripathy                                         Appeals dismissed.   H