Holding

An adopted child cannot divest any person of an estate vested before the adoption and therefore cannot claim a share in such property.

Summary

Vyankat, the sole surviving coparcener of a Hindu joint family, died on 8 February 1978. Four months later his widow Krishnabai adopted Dattatraya. The plaintiffs, Vyankat's children, sued for partition claiming their statutory shares, while the defendants argued that the adopted son was also entitled to a share. The trial and appellate courts held the adoption valid and allotted a share to Dattatraya, but the Supreme Court examined Section 12 proviso (c) of the Hindu Adoption and Maintenance Act, 1956, which bars an adopted child from divesting any person of an estate vested before the adoption. Since the property had already vested in Vyankat’s heirs before the adoption, the Court held that Dattatraya could not claim any share. Consequently, the Supreme Court set aside the lower courts' decrees and allowed the appeal.

Issues considered

Whether an adopted child, adopted after the death of the sole surviving coparcener, can claim a share in property that had already vested in the coparcener's heirs under Section 12 proviso (c) of the Hindu Adoption and Maintenance Act, 1956.

Legislation cited

Subjects

AdoptionHindu lawCoparcenarySole surviving coparcenerSection 12 proviso (c)Property rightsInheritancePartition suit

Judgment

NAMDEV VY ANKAT GHADGE AND ANR. A
v.
CHANDRAKANT GANPAT GHADGE AND ORS.

FEBRUARY 25, 2003

[DORAISWAMY RAJU AND SHIVARAJ V. PATIL, JJ.] B

Hindu Adoption and Maintenance Act, 1956-Section 12 proviso (c)-
Adoption-Ejfect of-Whether adopted child entitled to claim any share in
property already vested in heirs of sole surviving coparcener before his C
adoption-Held: No, since adopted child cannot divest any person of any
estate which vested in him before adoption.

The question which arose for consideration in this appeal was
whether the son adopted subsequent to the death of the sole surviving
coparcener could divest the heirs of the sole surviving coparcener of the D
property which vested in them prior to his adoption to claim his share in
the suit property.

Allowing the appeal, the Court

HELD: 1.1. An adopted child shall be deemed to be the child of his E
or her adopted father or mother for all purposes with effect from the date
of adoption as is evident from the main part of Section 12 of the Hindu
Adoption and Maintenance Act, 1956. Proviso (c) to Section 12 in clear
terms states that the adopted child shall not divest any person of any estate,
which vested in him or her before the adoption. [306-F, G]
F
1.2. In the instant case, on the death of the sole surviving coparcener,
property in his hands devolved and vested in his heirs. The son was
adopted four months after the death of the sole surviving coparcener and
by virtue of proviso (c) to Section 12 the adopted son could not divest the
properties vested in the heirs of the sole surviving coparcener so as to claim G
his share in the suit property. [306-H; 307-A]

Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe and Ors.,
AIR (1988) SCC 845, distinguished.
-~
Jivaji Annaji v. Hanmant Ramchandra, AIR 37 (1950) Bombay 360, H
299
300 SUPREME COURT REPORTS [2003) 2 S.C.R.
A approved.
Vasant and Anr. v. Dattu and Ors., AIR (1987) SC 398 and Sawan Ram
and Ors. v. Kala Wanti and Ors., fl967) 3 SCR 687, referred to.

CIVIL APP ELLA TE JURISDICTION : Civil Appeal No. 11632 of
B 1995.
From the Judgment and Order 27.6.94 of the Mumbai High Court in
S.A. No. 405 of 1994.

Ramesh Singh, Ms. Divya Roy and Ms. Bina Gupta for the Appellants.
c Deepak M. Nargolkar for the Respondents.

The Judgment of the Court was delivered by

SHIVARAJ V. PATIL, J. This appeal is by the plaintiffs challenging
D the validity and the correctness of the judgment and decree dated 27th June,
1994 passed in Second Appeal No. 405 of 1994 by the High Court of Bombay
aff'mning the concurrent findings of the trial court and that of the first appellate
court. In order to appreciate the contentions urged before us, it has become
necessary to state the facts to the extent necessary for deciding the questions
that arise for consideration. The family pedigree of the parties is as set out
E below:-

BALI
I
Vyankat (Di!d on 8.2.1978) Anand RaJ Died in 1930
F
Widow Krishnabai
(Defendant No.2 Died in
April 1980). #Allegedly
Adopted *Dattatraya on
10.6.78
G
I I
Peti No.2
. (Resp.I No.I Sarda I I
Leelavai Bhagirathi
Peti No.I
(Plaintiff (Plaintiff (Defendant (Defendant (Defendant (Defendant
No.I) No.2) No.I) No.3) No.4) No.5)

H
-·
...
r
N.V. GHADGE v. C.G. GHADGE [PATIL, J.] 301
Namdev Laxman Gan pat A

I
#daughter's son
*Dattatraya adopted
by Krishnabai
(Defendant No.6) B
Bali had two sons, namely Vyankat and Anand Rao. Anand Rao died
on 6.7.1930 in joint family. The defendant no.2 was the wife of Anand Rao.
After death of Anand Rao, Vyankat became absolute owner of the suit property.
The share of Anand Rao in suit property merged and the defendant no.2 had
only right of maintenance being a widow in the joint family of plaintiffs and C
defendant no. I. Plaintiffs and defendant no. I are sons of said Vyankat and
defendants 3 to 5 are the daughters of said Vyankat. Defendant No. 6 is the
adopted so11 of defendant No. 2. After death of Anand Rao, maintenance was-
used to be given to defendant no. 2. On 8.2.1978, Vyankat also died and
thereafter defendant no. I in collusion with the defendant no.2 got the name D
of defendant no. 2 mutated in records showing half share in the suit property
and got half share mutated in his name in the suit properties being the Karta
of the family. It is the further case of the plaintiffs that as per Hindu law,
defendant no. 2 had no right over the suit property, the plaintiffs filed complaint
about the said mutation entry; however, the defendant no. I with the help of
defendant no. 2 obstructed their possession over the suit property. Hence, the E
pl<1intiffs filed a suit for partition of their shares in the suit property collectively
claiming that they had 7/12 share, defendant no. I having 7/24th and defendant
nos. 3 to 5 each having I/8th share in the suit property and that defendant
no.2 had only right to maintenance. During the pendency of the suit, defendant
no.2 also died and plaintiffs and defendants I, 3 to 5 are her legal heirs. It F
was also the case of the plaintiffs that defendant no.2 had not taken defendant
no. 6 in adoption. The defendant no. I in collusion with defendant no. 2 set
up the adoption of defendant no. 6 who is the grandson of the defendant no. I
through his daughter Sindutai. Defendant nos. 3 and 5 remained absent in the
suit and were proceeded ex-parte. Defendant nos. I and 2 filed joint written
statement and contested the suit, contending that on 10.6.1968, defendant G
no.2 had taken defendant no.6, grandson of defendant, no. I, namely,
Dattatraya in adoption after performing some due ceremony; hence the
defendant no.6 is having share in the suit property; defendant no. 2 denied
that she had only right of maintenance; the defendant nos. I and 2 denied that
after the death of Anand Rao, his share merged and said Vyankat became H
302 SUPREME COURT REPORTS [2003] 2 S.C.R.

A absolute owner of the suit property; according to them, plaintiffs would not
get more than 7/48th share in the suit property. Defendant no.4 filed written
statement and denied that after the death of Anand Rao, said Vyankat became
absolute owner of the suit property being sole surviving coparcener. It was
further the case of the defen~ant no.4 that in item nos. 2 to 4 of the suit
schedule property, the said Vyankat being the tenant, after the re-grant, he
B became owner of thosl;l grants as self-acquired property. Consequently,
defendant no.2 and alleged adopted son has no share in the said lands.
Defendant no. 6 suo moto appeared and he was allowed to take part in the
proceedings after the death of defendant no.2. The trial court held that the
adoption of defendant no.6 was valid and decreed the suit of the plaintiffs
C declaring that the plaintiffs I and 2 and defendant no. I each having 7/48th
share, defendant nos. 3 to 5 having J/48th share in the suit property.

Aggrieved by the decree passed by the trial court, the plaintiffs filed
appeal before the District Judge. The learned District Judge, concurring with
the findings recorded by the trial court, dismissed the appeal. Thereafter, the ·,
D plaintiffs filed second appeal before the High Court. The High Court also
dismissed the second appeal declining to interfere with the concurrent findings
of both the lower courts. Hence, this appeal.

In view of the concurrent findings of fact the learned counsel for the
appellants did not question the validity of the adoption of defendant no.6.
E However, he urged that clause (c) of Section 12 of the Hindu Adoption and
Maintenance Act, 1956 precluded defendant No.6 to claim share in the
property, already vested in the heirs of Vyankat before his adoption, and that
the restriction imposed on th~ rights of adopted child under clause (c) of
Section 12 is applicable to the interest vested in sole surviving coparcener
F when the adoption was made subsequent to the death of sole surviving
coparcener.

He urged that the decision in Dharma Shamrao Agalawe v. Pandurang
Miragu Agalawe and Ors., AIR (1988) SC 845, is clearly distinguishable and
the courts were wrong in holding that the ratio of that case applied to the
G facts of the present case on all fours. The Courts have failed to notice that
it was a case where adoption had taken place during the life time of sole
surviving coparcener but in the present case, defendant no.6 was adopted
after the death of sole surviving coparcener, namely Vyankat which makes
all the difference.

H , The learned counsel for the respondents made submissions in support
•
I
N.V. GHADGE v. C.G. GHADGE [PATIL, J.] 303
of the impugned judgment. He also contended that the question of law now A .
sought to be urged, having not been raised in the courts below, cannot be
permitted to be urged for the first time in this Court. Since the facts are not
disputed and nothing more is to be done except interpretation and application .
· of law to the facts of the present case that no further evidence is required to
· decide this question of law, we consider it appropriate ·in the interest of
justice to consider them by permitting the appellants to raise the said pure B
question of law.

Learned counsel for the appellants was not in a position to dispute the
validity and factum of adoption of defendant No.6 Dattatraya by defendant
No.2 Krishnabai. It is useful to notice few important dates having bearing on C
the decision in this appeal. Anand Rao, the husband of defendant No.2, died
in 1930. Vyankat, his only brother, died on 8.2.1978. Defendant No.2, the
widow, adopted Dattatraya (Defendant No.6) on 10.6.1978. Relationship
between parties is also not disputed. In these circumstances the ~nly question
that arises for consideration is whether the adopted son Dattatraya could
divest the property, which devolved on the heirs of Vyankat aitd vested in D
them prior to his adoption so as fo claim share in the suit property. Vyankat
died on 8.2.1978. Adoption of the defendant No.6 by the defendant Nq.2
took place on 10.6.1978, i.e., about four months after !he death of Vyankat.
The first appellate coul"f P,laced reliance' on the judgment of this Court in ·
Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe and Ors:, AI~ E
( 1988) SC 845 in dismissing the appeal _of the app~llants while co~fjrmjpg
the judgment of the trial court. The High Court. dismissed the second appeal
summarily at the stage of admission stating that there was no need to interfere .
with the concurrent findings of both the lower courts. The trial court and the
first appellate court, after detailed consideration and appreciation of evidence,
held that adoption of defendant No.6 was valld and settled the shares of F
parties on that basis. In doing so reliance was placed on the aforementioned
decision of this Court in the case of Dharma Shamrao (supra).

It is not necessary for us to look into the evidence in view of the .
concurrent findings and admitted facts in order to decide the question of law
. that arises for consideration. Whether adoption of defendant No. 6, after the G
death of sole surviving coparcener, makes any difference in detennining the
rights of adopting son in relation to the family properties? If the adoption had
taken place during the life time ofVyankat, there would have been no difficulty
whatsoever in confinning the judgment under challenge in the light of the
decision of this Court in Dharma Shamrao Agalawe v. Pandurang Miragu H
304 SUPREME COURT REPORTS [2003] 2 S.C.R.

A Agalawe an(,f others aforementioned.
In the case of Dharma Shamrao the question that came up for
consideration was whether a person adopted by Hindu widow after coming
into force of the Hindu Adoptions and Maintenance Act, 1956 (for short 'the
Act'), can claim a share in the property which had devolved on a sole surviving
B coparcener on the death of the husband of the widow, who took him in
adoption. The facts in that case were that one Shamrao, who was governed
by the Mitakshara Hindu Law, died leaving behind him two sons Dharma
and Miragu. Miragu died issueless in the year 1928 leaving behind him his
widow Champabai. The joint family properties of Dharma and Miragu passed
C on to the hands of Dharma, the sole surviving coparcener on the death of
Miragu. Chamabai had only right of maintenance in the joint family properties
under the law, as it stood then. She took Pandurang in adoption on 9.8.J 968,
long after the Act came i.nto force. Immediately thereafter the adopted son
Pandurang and Champabai filed a regular civil suit for partition and separate
possession of one-half share in the properties of joint family. Before the
D adoption took place.two items of the joint family properties had been sold in
favour of others for consideration. Dhanna resisted the suit on the ground
that adopted son Pandurang was not entitled' to claim any share in the
properties, which originally belonged to the joint family in view of clause (c)
of the proviso to Section 12 of the Act.
E In Vasant and Anr. v. Dattu and Ors., AIR ( 1987) SC 398, interpre,ing
clause (c) of the proviso to Section 12 of the Act, Chinappa Reddy, J.,
speaking for the Bench, observed that where the joint family properties had
passed on to the hands of the remaining members of the coparcenary on the
death of one of the coparceners no vesting of the property actually took place
F in the remaining coparceners while their share in the joint family properties
might have increased on the death of one of the coparceners, which could
decrease on the introduction of one more member into the family either by
birth or by adoption.· It did not involve any question of divesting any person
of any estate vested in him and that the joint family continued to hold the
estate, but, with more members than before with introduction of a member
G into the joint family by adoption; there was no fresh vesting or divesting of
the estate in any way.

This Court in the case of Dharma aforementioned respectfully agreed
with the above observations made in Vasant v. Dattu supra as stated in para
H 9 of the said judgment thus:-
N.V. GHADGE v. C.G. GHADGE (PATIL, J.] 305 ·
"We respectfully agree with the above observations of this Court A
in Vasant's case (supra). The joint family property does not cease to
be joint family property when it passes to the hands of a sole surviving
coparcener. If a son is born to the sole surviving coparcener, the said
properties bec-ome 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 B
are two or more coparceners and the right of a sole surviving
coparcener in respect of the joint family properties is that while the
fonner 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 C
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 born to or adopted by the sole surviving coparcener or
a new coparcener is inducted into the family on an adoption made by
a widow of a deceased coparcener an alienation made by the sole D
surviving coparcener before the birth of a new coparcenor or the
induction of a coparcenor by adoption into the family whether by
way of sale, mortgage or gift would however stand, for the coparcemer
who is born or adopted after the alienatioR cannot object to alienations
made before he was begotten or adopted." E
Finally this Court concluded that the joint family property continued to ·
.remain in the hands of Dharma, the appellant, as joint family properties and
that on his adoption Padurang, the first respondent, became the member of
the coparcenary entitled to claim one half share in them except the items,
which ·had been sold by Dhar:ma, the_appellant. F
From the facts in Dharma 's case it is clear that adoption of Pandurang
. took place during ·the lifetime of Dharma and as such Pandurang became
member of coparcenery to claim the shate.

In the present case with which we are concerned now, it is not disputed G
that adoption of Dattatraya took place after the death of Vyankat, the sole
surviving coparcener. In our view this makes all the difference for the reasons
to be stated hereinafter,

On the date of death of Vyankat the properties of the joint family in his
hands devolved on his heirs, i.e., his sons and daughters as per Section 6 of H
306 SUPREME COURT REPORTS [2003] 2 S.C.R.

A the Hindu Succession Act, 1956, subject to rights of maintenance of defendant
No. 2 Krishnabai. Opening of succession and devolving of properties operated
immediately on the death of Vyankat and the joint family properties stood
vested in the heirs of Vyankat. Defendant No. 6 was adopted by defendant
No.2 about four months after the death of Vyankat by which time the properties
had already been vested in his heirs as stated above.
B
It is appropriate to extract Section 12 of the Act, which reads:-

"12. Effect of Adoption.-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
c child in the family of his or her birth shall be deemed to be severed
and replaced by those created by the adoption in the adoptive family;

Provided that-

(a) the child cannot marry any person whom he or she could not
D have married if he or. she had continued in the family of his or her
birth;

(b) any property which vested in the adopted child before the ,•
adoption shall continue to vest in such person subject to the obligations,
if any, attaching to the ownership of such property, including the
obligation to maintain relatives in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate
which vested in him or her before the adoption."
(emphasis supplied)

F It is plain and clear that an adopted child shall be deemed to be the
child of his or her adopted father or mother for all purposes with effect.from
the date of adoption as is evident from the main part of. Section 12. Proviso
(c) to Section 12 in clear terms states that the adopted child shall not divest
any person of any estate, which vested in him or her before the adoption.
G In the case of Dharma aforementioned, adopted son became member of ·•
coparcenary with Dha~ma and there was no question of divesting of any
property already vested in the view expressed by this Court in Vasant (supra).

But 'on the death of Vyankat, in the present case, property in his hands
H devolved and vested in his heirs. In view of proviso (c) of Section 12 of the
N.V. GHADGE_v. C.G. GHADGE [PATIL, J.) 307
Act defendant No. 6 Dattatraya by virtue of his adoption four months after A
the death of Vyankat could not divest the properties vested in the he.irs of
Vyankat so as to claim his share.
J
Full Bench of Bombay High Court in Jiyaji Annaji v. Hanmant
Ramchandra AIR 37 (I 950) Born. 360, dealing with a case of adoption after
collateral's death and the principle of relation back, after referring to number B
!.. of Privy Council decisions, held that any adoption after the death of collateral
will not allow the adopted son to come in as a heir of the collateral. Adoption
relates back to the death of the adopting father and an adopted son must be
looked upon as if he was in existence at the date of the death of the adopting
father. But it is not a correct proposition to say that the rights of adopted son C
are in all respects identical with that of a natural born son. The principle of
relation back is not an absolute principle but it has certain limitations. Chagla,
C.J., speaking for himself and on behalf of Gajendragadkar and Shah, JJ., in
para 2 of the said judgment, has stated thus:-

"2. Now, it has been observed by the Privy Council in several D
cases that an adoption relates back to the death 0f the adoptive father
and an adopted son must be looked upon as if he was in existence,
at the date of the death of the adoptive father. But it is not a correct
proposition to say that the rights of an adopted son are in all respects
identical with that of a natural born son. The principle of relation
back is not an absolute principle but it has certain limitations. For E
instance, one limitation is that any lawful alienations made by the last
absolute owner would be binding on the adopted son, and the question
.... that we have to consider in this Full Bench is whether there is a
farther limitation on the rights of the adopted son and the limitation
that is contended for is that if the property by inheritance goes to a p
collateral and the adopted son is adopted after the death of the
collateral, the adoption cannot divest the property which has vested

• in the heir of the collateral. Reliance is placed on the Privy Council
decision in Bhubaneswari Debi v. Ni/komul Lahiri 12 Cal. 18 P.C.
There it was expressly held that according to Hindu law an adoption
after the death of a collateral does not entitle an adopted son to come G
in as heir to the collateral. Mr. Madbhavi has attempted to distinguish
this case by pointing out that Sir Barness Peacock, both while
arguments were going on at the bar and in the judgment of the Privy
Council which he delivered, emphasized the fact that the adopted son
was not in existence at the time of the death of the widow in whom H
308 SUPREME COURT REPORTS (2003] 2 S.C.R.

A the property was vested. But in our opinion that particular fact cannot
be looked upon as the deciding factor in the decision. That is certainly
not the ratio which led the Privy Council to come to the conclusion.
It is immaterial whether an adopted son is or is not in existence at the
time of the death of the person whose property is attempted to be
divested. J:he question is, what is the effect of the adoption which for
B certain purposes relates back to the death of the adoptive father. But
whatever might have been said of the decision of the Privy Council
in Bhubaneshwari's case 12 Cal. 18 P.C. all doubt has been set at rest
by the manner in which the Privy Council has n;-affirmed and re-
emphasised that principle in the recent decision of Anant Bhikappa v.
c Shankar Ramchandra, 70. I.A. 232: AIR 30 (1943) P.C. 196. At p.9
their Lordships say:

"Neither the present case nor Amarendra Mansingh v. Sanatan
Singh, 35 Born. L.R. 859: AIR 20 (1933) P.C. 155, brings into
question the rule of law con~idered in Bhubaneshwari Debi v.
D Nilkomul Lahiri and stated by the Board to be that:

According to the law as laid down in the decided caoes,
·an adoption after the death of a collateral does not entitle the
adopted son to come in as heir of the collateral. "

E This is not a stray observation. It is the considered view of the
Privy Council that the rule of law as laid down in Bhubaneshwari's
case, is still good law notwithstanding the decision of Anant Bhikappa
v. Shankar Ramchandra."
(emphasis supplied)
F We are in respectful agreement with the statement of law made in the
aforesaid judgment on the point touching the controversy in the present case.

A Bench of three learned Judges of this Court in Sawan Ram and Ors.,
v. Kala Wanti and Ors., (1967] 3 SCR 687, after referring to Nara Hanumantha
Rao v. Nara Hanumayya and Anr., (1964] I Andhra Weekly Reporter 156,
G was unable to accept the interpretation placed by the Andhra Pradesh High
Court on Section 12 and 13. of the Hindu Adoptions and Maintenance Act but
however, found that the conclusion arrived at in that case by the. Andhra
Pradesh High Court was correct. In that case, the question that arose for
consideration was whether E after the adoption by D, the widow of B could
H divest C of the rights which had already vested in C before the adoption. By
N.V. GHADGE v. C.G. GHADGE (PATIL, J.] 309
the year 1936 C was the sole male member of the Hindu Joint Family which A
owned the disputed property. B died in the year 1924 and A died in 1936
before Hindu Women's Rights to Property Act had come into force and,
consequently, C as the sole male survivor of the family became full owner
ofthe property. This Court further observed "In these circumstances, it was
clear that after the adoption of E by D, E could not divest C of the rights
already vested in him in view of the special provision contained in clause (c) B
of the proviso to S.12 of the Act. It appears that, by making such a provision,
the Act has narrowed down the rights of an adopted child as compared with
the rights of a child born posthumously. Under the Shastric law, if a child
was adopted by a widow, he was treated as a natural-born child and,
consequently, he could divest other members of the family of rights vested C
in them prior to his adoption. It was only with the limited object of avoiding
any such consequence on the adoption of a child by a Hindu widow that
these provisions in clause (c) of the proviso to s.12, and section 13 of the Act
were incorporated."

. This being the legal position defendant No. 6. having been adopted D
after the death of Vyankat and after the properties vested in his heirs, is not
entitled for share in the suit properties. In this view the impugned judgment
and decree of the High Court affirming the decree of both the courts below
cannot be upheld. Consequently and necessarily they are set aside and the
suit of the plaintiffs-appellants stands decreed.
E
The appeal is allowed accordingly. Parties shall bear their own costs.

N.J. Appeal allowed.