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Ankush Narayan Shingate Vs. Janabai Kom Rama Sawat and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberAppeal No. 194 of 1959
Judge
Reported inAIR1966Bom174; (1965)67BOMLR864; 1966MhLJ92
ActsHindu Adoptions and Maintenance's Act, 1956 - Sections 5, 8, 11, 12 and 14; Hindu Succession Act, 1956 - Sections 14 and 15; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantAnkush Narayan Shingate
RespondentJanabai Kom Rama Sawat and ors.
Appellant AdvocateShared Manohar, Adv. for ;U.R. Lalit, Adv.
Respondent AdvocateK.B. Sukhthankar, ;P.S. Loshi and ;M.B. Kadam, Advs.
Excerpt:
family - adoption - sections 5, 8, 11, 12 and 14 of hindu adoptions and maintenance act, 1956 - adopted child for all practical purposes is absorbed in adoptive family after adoption - once child is adopted there is severance of status for all practical purposes from previous family - he is no more bound to family of his birth. - - she rightly pointed out that the owners ship suit properties have vested oft in herself and her co window of the laxmibai of that even before plaintiff adoption the properties of the continued best if that them ,and that the plaintiff couldn't deprive them the and properties denied that possession suit properties of the by the defendants the was illegal the other defendant filled contesting written of the statement......proves that the is validly adopted son of deceased narayan is and defendants no.1 under the hindu adoptions and maintenance's act 1956 and therefore succeeds to the state of deceased narayan' issue no.7, 'do the defendants prove that the alleged adoption of the plaintiff having taken place after coming into operation, of the hindu succession and interest in the properties, in suit'. issues 13 and 14 are general issues relating to the relieves claimed in the suit. the learned judge held that the plaintiff had not been validly adopted son of deceased narayan and defendants no.1 tanubai under the hindu adoptions of and maintenance's act, 1956 and had, therefore not succeeded to the state of deceased narayan. he accordingly answered issue no.7 in the affirmative. he therefore,.....
Judgment:

K.K. Desai, J.

(1) This is plaintiff appeal against the judgment and decree dated December 31, 1958 passed by the Civil Judge, Senior Division. Satara, dismissing the plaintiff special Civil suit No. 10 of 1957,

(2) The relevant of facts are as follow: About 40 years prior to 1957 [the date of the suit], one Narayan died intestate of at village Mardhe, living him surviving as his only heirs and next of kin his two windows respectively senior Laxmibai, and Junior Tanubai and one Janabai, daughters to the senior widow Laxmibai. He left 23 properties at villages Mardhe, all or which are mentioned in schedule of properties annexed t the plaint. The two widows appears of the to have mortgaged properties mentioned in serial Nos. 4 to 9 12 to 15 and 17. All these properties were in course, of time redeemed by defendants No.2 Janabai the daughters of senior widow Laxmbai. The properties in Serial Nos. 20 and 21 were sold in 1937 to defendants No.3, property serial No. 18, was sold by defendants No. 2 to defendants 4 and 5 in 1950. Property, serial No. 23, was sold by the widow laxmibai died intestate in 1948 The plaintiff case is that Tanubai was residing with the natural father of the plaintiff Taking advantage of absence of plaintiff natural father defendants No.2 Janabai removed defendants No.1 Tanubai from the house of the plaintiff with a notice dated December 9, 1957 This notice was received by the plaintiff with on about December 13, 1957 plaintiff gave reply dated December 16, 1957 denying the contentions made by Tanubai in the notice dated December 9, 1957 an contended that plaintiff had been duly adopted by Tanubai Thereafter the on December 31, 1957 the plaintiff field the above special civil suit No.10 of 1957 for relied of possession of all the prorates mentioned in serial No. 1 to 18 and 20 of 23, and of menace profits amounting of the Rs. 1,000 per years from the dates of the suit till possession and for costs paragraphs 1, 2 and 3 of the plaint relate to the leadings of the mortgage of the sale of the respect of the leading properties of mentioned of the sale in respect of the property mentioned in schedule annexed to the plaint. The main contention of the for relief of possession of that is made of in the plaint is contained of the possession that is made of the plaint constants of the paragraph of 4 of the plaintiff. The substances of the case that the made of the that para was the defendants on 1 Tanubai had taken the plaintiff in adoption of the on December of the 2, 1956 of after the performances of the necessarily of the rites of the 'giving and taking' and performing the necessary rites of the 'giving domain the presence of the Bhubands, of the and other people. A photograph of the adoption of the ceremony had been taken of the Yadi had been of the also made of the. The plaintiff natural father vithoba had. With the consent of the plaintiff natural motif given the plaintiff in adoption. A deed of adoption of the given had been executed on December 2, 1957 and the same was registered of the In the first part of the paragraphs of the it was stated that the adoption was in according of the with and under the old Hindu law. In the last part of the paragraph. it was stated.:

'In this manner even under the Hindu Law of 1956 the plaintiff its validly adoption of as deceased Narayan and defendants No.1 and as such he has become of the heir to the entree estate of he deceased Naravan.

It is can that the title on which the plaintiff based his suit for possession of the properties last by Narayan was that the plaintiff having been duly adopted to Tanubai, defendants No.1 was entitled to the all the prepares left by the Narayan. In that the connection, in paragraph 6 of the plaint, he submitted.

'Since the time of the plaintiff adoption, the possession of defendants of Nos. 3 and 4 ,5 and properties of theirs possession of had been illegal. The plaintiff benighted validity adopted son of decease's of the Narayan his filing this suit praying of the that possession of the possession of the defendants of should be given to the plaintiff.

(3) In connection of with the material allegation made in the paragraph 4 of the plaint the written statement of defendants 1 was as follows: The allegation plaintiffs of the that defendants No.1 has adopted plaintiff will full comprehension. The substances allegation of the was that the adoption had been brought about of the fraudulently. In that connection, defendants No.1 Tanubai mad certain allegations facts if paragraphs of the 4 offer written of the statement. The contents was that the 'she did not know property whether the documents of the were prepared were in the connections with the adoption something's else. She denied that by reason of the adoption the plaintiff of he come of the entitled to right ownership in the properties of in suit. She rightly pointed out that the owners ship suit properties have vested oft in herself and her co window of the Laxmibai of that even before plaintiff adoption the properties of the continued best if that them , and that the plaintiff couldn't deprive them the and properties denied that possession suit properties of the by the defendants the was illegal the other defendant filled contesting written of the statement. They by Tanabai, defendants of the 1. It is the however necessary to notice connections with the details of the facts mentioned of statement of paragraphs 4 plaintiff these written statements have not referred the same and there fine omission to deny allegation facts contained in paragraphs 4.

(4) The learned judge raised in all 14 issues. He answered issues Nos. 2, 7, 13 and 14 only, and, as regards the rest of the issue the finding he made was 'not necessary' Issue No 2 is, 'Whether the plaintiff proves that the is validly adopted son of deceased Narayan is and defendants No.1 under the Hindu Adoptions and Maintenance's Act 1956 and therefore succeeds to the state of deceased Narayan' Issue No.7, 'Do the defendants prove that the alleged adoption of the plaintiff having taken place after coming into operation, of the Hindu Succession and interest in the properties, in suit'. Issues 13 and 14 are general issues relating to the relieves claimed in the suit. The learned judge held that the plaintiff had not been validly adopted son of deceased Narayan and defendants No.1 Tanubai under the Hindu Adoptions of and Maintenance's Act, 1956 and had, therefore not succeeded to the state of deceased Narayan. He accordingly answered issue No.7 in the affirmative. He therefore, dismissed the plaintiff's suit.

(5)The main contention on behalf of the appellant - plaintiff in this appeal is that the learned Judge's approach to the question of the plaintiff having been validly adopted is entirely wrong. The learned judge has wrongly constructed the provisions in the Hindu Adoptions of the Maintenance's Act, 1956 hereinafter referred to as the Act and based the whole of his judgment on such wrong construction. The learned judge, has in that the connection placed wrong emphasis on the first part of the statement of the f acts in paragraphs 4 of the plaintiff where it is adoption under the old Hindu Law. The learned judge has proceeded the decide the main issue about the validity of the adoption of the plaintiff in entirely unjustified manner.

(6) The substance of the reason why the learned judge held that the plaintiff had not been validity adopted in accordance's with the provisions in the Act, may be summarized as follows: Under S. 5 of the Act, adoption [to be made] by a Hindu must be in consonance's with the provision of the act. Adoption in contravention of the provisions would be void The result of the general scheme of the act, and particularly the provisions in Ss. 5, 6, 7, and 8 is that the from the date the act, come into force a Hindu female can adopt was son or a daughter to herself only, and a widow is not entitled the adopt of a son of the and her deceased husband,. The plaintiff's case was that the Tanubai has adopted the plaintiff case was the accordance's of with the old Hindu Law that is Tanubai had purported to adopt the plaintiff in accordance with the permit such adoption. The result was that the adoption, if any by Tanubai of the plaintiff as son to her deceased husband Narayan was , entirely invalid and void. In the connection the learned Judge emphasized that under the Act the adopted child does not divest any person of any estate vested in him [or her] before the adoption.

(7) It is with some emphasis contended on behalf of the appellant that the reasoning is country to the provision of the Act. It is necessary in his connection to notice the relevant provisions in the Act. The appellant has in support of his argument relied upon the provisions in Ss. 11[vi] 12, 14[1], [2] and [3] of the Act. The respondents have relied upon the provisions in Ss. 5, 6 and 7 of the act. Both side have relied upon the general scheme of the Act. Section 11 regards to 'other conditions for a valid adoption' Sub - section [vi] of S. 11 provides.

'The child to be adopted must be actual given and taken in adoption by the parents or guardian concerned or under their authorities with intent to transfers the child from the family of its birth to the family of its adoption.'

(8) Section 12 provides:

'An adopted child shall be deemed to be the child of his to her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties to the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

provided that:

(a) .........................

(b)..........................

(c) The adopted child shall not divest any person of any state which vested in him or her before the adoption'.

(9) Section 14 sub - section (1) ,(2), (3) and (4) provide:

'14 (1) Where a Hindu who has a wife living adopts a child she shall be deemed to 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 the adoptive mother and the others to be step = mothers.

(3) Where a widower or a bachelor adopts a child, any wife's whom he subsequently marriage shall be deemed to the step - mother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step - father of the adopted child.'

It has appeared to us that the provisions in the above parties of Ss. 11, 12 and 14 are of extreme importance's for as certainments of the true intent it is purpose of the adoption under the Act. Now it is clear on reading of the main part of the S. 12 and the sub -section [vi] of S. 11 and that the effect of adoption under the Act is the it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties when family of birth. Correspondingly, these very ties automatically get replaced by the those created by the adoption in the adoptive family. The intention in giving in the children adoption must be to transfer the child from the family of its birth to the family of the its adoption. The result is s mentioned in S. 14(1). Viz., where a wife a living adoption of the by husband result into he adoption of the child by both these spouses, the child is in to only the child of the adoptive father of the but also of the adoptive under mother. In cases there bring two wives, the child becomes the adoptive child the senior - most wife in marriages the junior wife be coming the step -mother of the adopted child. Even when a widower or bachelor adopts a child and he gets married subsequent to the adoption, his wife becomes the step - mother of the adopted child. When a widow or an un married woman adopts a child, any husband she marries subsequent to adoption becomes the step - father of the adopted child. The true effect of these sections to adoption arrived at by emphasizing the phrases 'Family of its adoption' and/or 'Adoptive family' We have no doubt that the true effect of the provisions in the above section is that the adopted child is for all the purpose absorbed in the adoptive family if with the ties natural to his or her situation as adoptive son or daughter. The obvious result of this position in connection with the adoption by a widow would be that the adopted child will become absorbed in the adoptive child will become absorbed in the adoptive family would obviously be the family to her deceased husband. When a widow adopts of as son the obvious result of the child through the deceased husband to the widow. In other words the husband brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother [ and father] would necessarily he the sister of the adopted son, and , it this way the adopted son would become a member the widow family: with the ties of relationship which all spring from his [new] relationship with the deceased husband of the widow as his adoptive father. It appears to us that the non - inclusion of the provisions of the mentioning the above effect in S. 14 of the act does not have the effect of the avoiding the true consequences of the adoption by a widow in the manner mentioned above. Such non - inclusion of the cannot have the effect of the not making the son adopted of the by widow as having no adoption of a father at all. We have no doubt that he adopting a son the necessary consequence the that arises under the provisions of the Act is that the find in sub - section (4) of the S. 14 of provision that where a widow adopts a child and subsequently become the 'Step - father' of the adopted child. It appears to us that, if the learned judge below had borne of the this main he arrived at would have been different and he would not be have found that under the act, when not get any relationship with her decease's husband as adoptive father. He would not have held that the adopted son does not becomes the son of the deceased husband of the widow.

(10) We will now notice the provisions in the other section of the Act to find of out if learned Judge finding could be justified. Section 5 provides:

'(1) No adoption shall be made after the commencement of the this Act by or to a Hindu except of the accordance's of the with the provisions contained in this chapter [Chapter II] ...............'

'No adoption shall be valid unless:

(i) the person adopting has the capacity, and also the right to take in adoption.

(ii) the person giving in adopting has the capacity to do so.

(iii) the person adopted is capable of being taken in adoption, and

(iv) the adoption is made in compliance it the other conditions mentioned in this Chapter.'

Section 7 and 8 relate to the capacity of a male Hindu and a female Hindu to the take in adoption. Under S. 7 any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. If his married, he requires consent of his wife in connection with the adoption. A person having more than one of the wife is S. 8, any Female Hindu, who is of sound mind and not minor is stated to have capacity to taken or daughter in adoption. The contents a their section she that all the females except a wife have capacity to adopt a son or a daughter. Thus an unmarried female or a divorcee or widow in the stated to have capacity to take a son or a daughter of the in adoption. On examining the reasoning contained in the learned judge of judgment it appears of to us that the he has based his findings on the contest of the these section. He has the that S. 8 relating to capacity of the female Hindu to take in the adoptions shows that the female takes child in adoption of the herself alone. In that connection he has emphasized that even an unmarried female has been authorized under the Act to take a child in adoption. He has emphasized the phrase 'No adoption shall be made. By or to Hindu in S. 5(1) of the Act and has come to the convulsion of the that the language, of commencement of the act is was not permissible to for the widow to take any child to in adoption to her husband. The customary Hindu Law to that connection according to the learned judge reassigning has the been entirely abrogated. Under the customary Hindu Law, when a widow adopted son show adopted the son to the father of the adopted son she adopted on deceased husband who become the adoptive father of the husband adopted child. This was according to the learned judge not the position under the provisions of the act. It has appeared to the us that the learned judge not the position under us that the learned judge has laid wrong emphasis on the phrase 'by or to' as contained in sub - section (1) of S.45. In our appeared to the us that the learned provisions in sub -s [VI] of the S. 11 and S. 12 of the Act, is that when either of the suppers adopts and a child all the ties of the chill in the family of his or her birth become complete severed and these are all replaced bytes created by the adoption in the adoptive family. This would be so far each and all different purpose. Obviously the result of the adopt by either spouses is that the adoptive child becomes child of both the spouse. This is the only possible view which can be taken of the scheme of and intent of the adopting under the act in view of the provisions of in Ss. 11, 12 and 14.

(11) If the contention made by the respondent are accepted absurd results must follow. The result to the accepting their contention would be that the son adopted by a widow would not the son of her deceased husband. Even so, it is not contended that he will not become collateral related with the husband collateral relations, such as husbands father mother, brother etc. Mr. Sukthankar is not prepared to the state that the relations of would not become, as result of the adoption by the widow grandmother or grandfather or uncle [as the case may be] of the adopted son. It is not possible for the respondents to content that the soon adopted by the widow to will not become coparcener wit the other coparceners of surviving after the death of her deceased husband. It appears to us that the there is nothing in the act to the indicate of the provisions in the Act wee intended to abrogate the position which the arose under the customary Hindu Law as regards the new ties of the adoptive son n the adoptive of family in consequence of the adoption of by a widow. On the contrary as we have already observed, upon the adoption of by a widow the adopted son's all ties in the family of his birth become completely severed and are replaced by those created by his adoption in the adoptive family [of the widow and her decades husband]. The learned judges by finding that under the Act, the a son adopted by widow does not be become the son of deceased by adoptive of father in the contrary to the provisions of the Act and is set aside.

(12) In connection with issue No.7, the learned judge held that having regard to the provisions in Ss. 14 and 15 of the Hindu Succession Act, 1956 the Legislature had abolished Hindu Woman estate, made a female Hindus including a widow all the full owner of any property acquired a widow all the possessed by her in the her in the manner stated in that Act. There is can be no disputes regard that the finding of the learned judge. It is also true that the state left by the Narayan was bested upon his death in his two co - windows, Laxmibai and Tanubai, Laxmibai died in the Tanubai the junior widow of the Narayan. In connections with the state of the Narayan being the p[reports mentioned the ester of Narayan, being the property mentioned in the plaint, the plaintiff case is that the estate of properties serial Nos. 4 to 9 and 12 to 15 and 17 were all mortgaged with possession by the widows of creditors. These properties were redeemed to the defendants No.2, Janabai,. It is not clear on the pleadings as to Whitehorse as that the of the suit Tanubai was in possession of any of the twenty- three properties, mentioned in the plaint. Now under the Hindu Succession Act the widows estate ceases to the limited and becomes absolute from the date of the act onto in respect of the estate of her husband in her possession. The other estate not in her possession, to the at the date of the act therefore, continued to be limited and / or woman estate. The plaintiff case in that connections as regards the properties in serial Nos 20 and 21 in the plaint is that these properties have been sold in 1937 to defendants No.3. Obviously, therefore these propertied were not in possession of Tanubai at the date of the suit. Similarly as regards the properties and Serial Nos 18 and 23, the plaintiff's case in the plaint is that defendants 2 had sold these properties in 1950-55 to defendants 4 and 5 respectively. As regard the other mortgaged properties, except Serial Nos 4 to 9 there is nothing the plaint to show that these properties were in possession of the Tanubai at the date of the suit. The question that requires to the be decided is as to the whether the all or any of the properties left by Narayan and held by the Tanubai become vested in the plaintiff as a result of his adoption. In this connection, it is not disputed that after the disposal of the suit by the learned Judge, bellow of the December 31, 1958, Tanubai the adoptive mother in the plaintiff, died on October 1, 1959. As a result is as of the death, the question of that has arisen is as on whether the plaintiff as reversion and/or in the alternative as heirs of Tanubai has acquired rights to ownership in these properties. It is not disputed by Mr. Manohar for the appellant that at the date of the suit having regard to the provisions in the Hindu Succession act, the plaintiff could not have claimed possession of any of these properties. The learned judges finding in this connection therefore cannot be described as erroneous. Mr.Manohar however contends that the suit was for possession. The result of the death of Tanubai on October 1, 1959 is that the plaintiff as the reversions and also a heir of Tanubai has become entitled to relief of the possession in respect of the these properties. He has therefore made Civil Application No. 954 of the 1965 in this appeal claiming relief of amendment of the plaint if terms mentioned paragraph 7 of the petition. He has contended that the appellants is entitled in the these amendment because of the same would abode multiplicity of the suits and same would avoid not be mulcted in costs of the further suit to be filed by him. All the parties who can have any claim whatsoever to the properties are all the any claim this appeal and were parties to the suit disposed of the learned judge. The counsel for respondents of the have opposed this application. It as he did appeared us the all the parties are already on the record ands the parties in the litigation of should not been a mulcted costs the necessary relief of amendment should be granted to the amended should be granted to the appellant. We have however, felt that the amendment claimed by the him in sub - para (c) in paragraph 7 of the petition is not permissible. The claim to properties is made in the this paragraph on the basis of the deed to adoption of the dated December 2, 1957. That claim must be held is the barred to the at this state. The result in that the appellant at the will be permitted to amend the plaint to include the portions mentioned in paragraph 7 of the civil application for amendment of in terms of the sub-para (c) is rejected. The learned judges finding that the plaintiff is not entitled to any properties having regard to the provisions of the in the Hindu Succession act 1956 is set aside and will not be binding I connection may be entitled having regard to the above amendment.

(13) The rest of judgment of is not material for this report.

(14) Case remanded.


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