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Hirabai and anr. Vs. Babu Manika Ingale - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 671 of 1971
Judge
Reported inAIR1980Bom315; 1980MhLJ494
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 8, 11, 12, 13 and 16; Hindu Succession Act, 1956 - Sections 4, 4(1), 6, 14 and 14(1); Transfer of Property Act
AppellantHirabai and anr.
RespondentBabu Manika Ingale
Appellant AdvocateR.W. Adik and;A.G. Godhamgaonkar, Advs.
Respondent AdvocateD.Y. Lovekar, Adv.
Excerpt:
family - adoption - sections 4, 6, 14 and 14 (1) of hindu succession act, 1956, transfer of property act, 1882 and hindu adoptions and maintenance act, 1956 - question regarding rights of adopted son in adopted family to be decided - a-mother adopted b by registered deed - after adoption ancestral property was mutated in name of b - at time of mutation a gave up all her interest in suit property - later a sold property to c- a minor - a requested to cancel registered deed of adoption on grounds of want of ceremony and on basis of non- satisfactory of conduct of b - adoption in accordance with law - by reason of adoption b got interest in joint family property - no impediment in a to surrender her interest in b's favour - a cannot sell such property as she had already surrendered all her.....masodkar, j.1. this appeal occupied considerable time of ours because of some intricate, important and thorny debate with regard to the rights of the adopted son in the adoptive family. as far as the facts are concerned, the appeal raises a very limited issue. initially, the appeal was filed by hirabai (widow of harji ingale), who was found to be the adoptive mother of respondent babu. hirabai died during the pendency of the appeal. appellant no. 2 latabai, who is a minor of 11 years of age, claims to be the purchaser of the property from hirabai after the adoption in issue of babu. one digamberrao, who has not examined himself, is the guardian father of latabai, who has, in fact, purported to take the sale of the property from hirabai.2. the suit was initially filed by hirabai alone, but.....
Judgment:

Masodkar, J.

1. This appeal occupied considerable time of ours because of some intricate, important and thorny debate with regard to the rights of the adopted son in the adoptive family. As far as the facts are concerned, the appeal raises a very limited issue. Initially, the appeal was filed by Hirabai (widow of Harji Ingale), who was found to be the adoptive mother of respondent Babu. Hirabai died during the pendency of the appeal. Appellant No. 2 Latabai, who is a minor of 11 years of age, claims to be the purchaser of the property from Hirabai after the adoption in issue of Babu. One Digamberrao, who has not examined himself, is the guardian father of Latabai, who has, in fact, purported to take the sale of the property from Hirabai.

2. The suit was initially filed by Hirabai alone, but after the institution of the suit, the so-called transfer was effected and Latabai joined as plaintiff No. 2. By the suit, the relief of cancellation of the deed of adoption and consequent declaration of ownership with regard to Survey No. 81, admeasuring 5 acres and 23 gunthas, was prayed for. It is not in dispute that one Harji was the owner of the suit land and he died sometime between 1935 and 1937. The property in his hands was the ancestral property. By the suit deed, which is at Ex. 83, duly executed and registered on Mar. 9, 1962, Hirabai adopted defendant Babu. After the adoption, the property, being Survey No. 81, was duly mutated in the name of Babu. There is some dispute between the parties with regard to -the application given for mutation and the notice issued by the Revenue Authorities (Exs. 69 and 70 respectively) and the mutation order dated April 20, 1963. The fact remains, however, that immediately after the adoption, as far as the suit survey number is concerned, it was duly mutated in the name of the adopted son Babu. Initially, the suit was instituted in the year 1967 on the allegations that the defendant's father and some respectable persons persuaded the plaintiff Hirabai to take the defendant in adoption for continuing the line of the family and the plaintiff agreed to this suggestion and told them to keep Babu at her house and after she satisfied herself about his conduct, she would perform the adoption ceremonies. Accordingly, the defendant was kept by the plaintiff for the purpose of satisfaction and confidence about the boy. Though the deed of adoption was excited and registered on March 9, 1962, no ceremonies of adoption took place. Defendant Babu started living with the plaintiff after the execution of the deed and was helping her in the management of the estate, but as his behaviour was not proper and he was found to be dishonest to the extent that the plaintiff was driven out of the land, the plaintiff was compelled to sue for the reliefs and though the mutation was effected, the same was got dishonestly effected by the defendant. These allegations were not materially changed even after the purchase was effected by Digamberrao obviously in the name of the minor daughter, Latabai, who joined as plaintiff No. 2, of the suit survey number for an ostensible consideration of Rs. 25,000/-. At this stage, we have referred to the basic allegations in the plaint so as to indicate that the duly registered deed of adoption is sought to be cancelled and avoided mainly on two grounds, firstly the want of ceremonies and secondly that it was, in fact, executed on the basis that adoption ceremonies will take place -in future upon satisfaction of the good conduct of the defendant. As far as the mutation is concerned, the plea appears to be one of dishonesty.

3. This being the nature of the suit, naturally, the defence was one of denial and an assertion of due adoption and furthermore of an assertion that not only the adoption ceremonies took place but actually after the adoption the defendant was admitted in the family and as the adopted son, his name was recorded and at the time of mutation, because of the adoption, the plaintiff gave up all her interest in the suit property and thus, there was nothing that could be sold to plaintiff No. 2,

4. The trial Court found that there was no reason to cancel the deed of adoption and, in fact, due adoption had taken place. Similarly, it found that though there was no deed of transfer as such, by her express conduct and also by applying for mutation entirely in favour of the adopted son, the original plaintiff Hirabai, since deceased, did surrender her interest in the property in favour of the adopted son. Taking this view, the suit was dismissed.

5. All these findings as well as the view of law that there could be surrender in favour of Babu of the interest in property are questioned in this appeal. It is mainly contended that even assuming that there was, in fact, an adoption, it being an adoption of the year 1962, that is after the coming into force of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter called 'the Adoption Act'), the adopted son gets no interest in the property, for the widow Hirabai under Section 14(1) of the Hindu Succession Act, 1956 (hereinafter called 'the Succession Act') became the full owner of the property in her hands as on June 17, 1956. For the purpose of surrender, it is submitted that Babu must be possessed of interest in the property or else the device would be that of gift and there being no document to support such a gift, he would not get any title and by reason of the sale in favour of plaintiff No. 2, though for ostensible consideration flowing from the father of plaintiff No. 2, the plaintiffs were entitled to repossess the property, being Survey No. 81.

6. On the factual aspect, the controversy, as is decided by the learned trial Judge, does not admit any doubt. The evidence is overwhelmingly against plaintiff Hirabai. This being an adoption of the year 1962 and, admittedly, there being a registered document produced at Ex. 83, this inquiry has to begin with the presumption that is attached to such device of registered documents relating to adoption, as is enacted by the provisions of Section 16 of the Adoption Act. The presumption to be raised under Section 16, no doubt, is a rule of evidence, like any other presumption, but until the contrary is proved, once it is shown that there exists a registered document relating to adoption, we will have to presume that the adoption has been made in compliance with the provisions of the Adoption Act and the burden is on those who assert to the contrary, to rebut the said presumption. On this aspect, we have the evidence of Hirabai and her two witnesses Dhondji and Bhiva as countered by the evidence of defendant Babu and his two witnesses Hanmania and Madhav. Hirabai's testimony is obviously interested and there is a studied attempt on her part to support the alienation which she had effected at least for ostensible consideration of Rs, 25,000/- in favour of the daughter (plaintiff No. 2) of Digamberrao, who, it appears, was present when the evidence was being taken. Hirabai claimed to be 80 years of age and according to her, no ceremonies took place, but she has admitted that there had been talks about taking the defendant in adoption so as to continue the line of her husband. She has further admitted that the defendant's father had kept the defendant with her after the talks. She has admitted that she had been to the Sub-Registrar's Office and had executed the document. All the while she has asserted that no ceremonies took place. She has also slated that the document duly registered was with her all along and only at the filing of the suit, that is, after 5 years, she handed over the same to the pleader. According to her, even prior to the execution of the document, the defendant was residing with her and after about six months, he misbehaved. She has stated that she had not made any application for mutation, but her thumb impressions were obtained by the defendant on some papers. She has stated that she had always intended to take the defendant in adoption, though in her caste a boy of about 12 years cannot be taken in adoption. She has stated that she sold the land to Latabai for Rs. 25,000/- and in exchange got some land of the value of Rs. 8,500/- and deducting that value, she received the balance. However, she was unable to say what amount she actually received at the time of the execution of the sale deed before the Sub-Registrar in favour of plaintiff No. 2. That sale-deed is at Ex, 63. Her cross-examination shows that though she was aged, she had taken a particular stand with regard to the adoption of defendant Babu. She has admitted that none had asked her to execute the adoption deed. She has admitted that one Laxman Bhat was telling the Panchang in her village, but he was dead. She did not know when he died. He was a resident just behind her house, but she denied that Laxman Bhat presided over the adoption ceremonies and had placed Kalas. She has also admitted that after the execution of the adoption deed, the defendant was living with her for about 2 or 4 years, but has denied that he was residing there as an adopted son. She was not in a position to say when the mutation took place, but has stated that she got the knowledge of the mutation after about 2 years of the adopt ion deed. She in no uncertain terms admitted that after the execution of the adoption deed, she wanted to test the behaviour of the defendant for 4 years and then perform the ceremonies. She was unable to say as to why the adoption deed was executed without the ceremonies. She has further admitted that the deed was prepared by engaging a pleader and she had herself gone to the Sub-Registrar, but never expressed before the Sub-Registrar that there was no adoption in fact. About the mutation, she has admitted that her thumb impression is on the application as well as on the notice. About the sale in favour of Latabai through Digamberrao, she had a different story to tell to the effect that out of the sale-proceeds, she had spent the entire amount except Rs. l,000/-and that too she had deposited with someone else, whose name she did not want to disclose. She has denied the suggestion that it was agreed between her and Digamberrao that Digamberrao should pay for the expenses of the litigation and that was why the sale-deed was executed. Hirabai's testimony in this manner with regard to the title claimed under the purchase (Ex. 63) clearly goes to show that this was a mere device to step in litigation resorted to by the father of plaintiff No. 2 Latabai. It is apparent that Latabai is a minor and was not possessed of any means to purchase the property. Similarly, it is apparent that Digamberrao, the father of Latabai, was participating in the litigation after the suit was filed and purported to take the document in the name of the minor daughter. It is further obvious that Digamberrao did not step in the witness box to support the case of the purchase. The evidence of Ilirabai clearly shows that though the document purports to be for valuable consideration, the whole matter is entirely suspicious. In all probability, no consideration passed and the document is a mere cover, so as to further the litigation against the adopted son. In this view and for these reasons, we are inclined to hold that plaintiff No. 2 has not been shown to be the real title-holder.

7. The evidence of the other two witnesses Dhondji and Bhiva is negative and they have merely stated that no ceremony look place. It is indeed difficult to understand the propriety of such assertion from Dhondji and Bhiva, who do not claim to be concerned with the family. However, one thing is significant that both Dhondji and Bhiva have admitted that they were knowing that Hirabai was to take the defendant in adoption and the defendant was, in fact, living with her and this was told to them by Hirabai herself. According to Bhiva, the defendant was living with Hirabai for over a period of 7 or 8 years. Similarly, their evidence suggests that in the community, to which Dhondji and Bhiva belong, there were adoptions of major boys.

8. As against this, the evidence of Babu is clear about the ceremonies as well as the conduct of Hirabai as to how the deed was executed and how he was treated for all purposes to be the adopted son. Similarly, his evidence is clear on the aspect as to how after the adoption the property was mutated in his name at the instance of Hirabai herself and since then how he was holding the property entirely for himself. He testifies with regard to the application at Ex. 69 and the notice at Ex. 70. He has further stated how Digamberrao tried to intermeddle and rake up this dispute. He has further stated that he obtained a loan from the co-operative society on the strength of the suit land. He has further stated that he purchased an electric motor after the adoption and set it on the suit land. Nothing much is taken out on these aspects in the cross-examination. He has admitted that at the time of the adoption ceremonies, no writing took place. He has further asserted that it was Digamberrao who before the filing of the suit used to come to the house of Hirabai and it was Digamberrao who was behind this litigation, He has stated that it was Laxman Bhat who performed the adoption ceremonies. He has also given the details of those ceremonies. The evidence of Hanmanta, who appears to be quite old, goes to show that the ceremonies were, in fact, gone through and one Laxman Brahmin did perform the Puja and the giving and taking took place. Hanmanta was himself present at the time of the ceremonies and he further had the knowledge that after the ceremonies, the defendant was residing with Hirabai as her adopted son. According to Hanmanta, in fact Hirabai after the adoption performed also the marriage ceremony of the defendant. In cross-examination, Hanmanta has stated that he has purchased the house of Lax-man Bhatji, which house is adjacent to the house of Hirabai. Hanmania's evidence is straightforward and admits no doubt and he must have been present at the ceremonies.

9. The evidence of Madhav, who was the Gram Sevak, is on the aspect of showing hov the mutation application (Ex. 69) was given to him, how he had issued the notice for the purpose of mutation and how the mutation entries were duly made. He has stated that the adoption deed was shown to him and thereafter the mutation was effected and after its certification, he returned the adoption deed. Madhav was in the village for about 8 to 9 years and was working as Village Officer. He has also asserted that after the application of mutation, the matter was published in the village. In cross-examination, he was, however, unable to say the date of the publication, but he stated that the practice is that the same is published within one or two days.

10. In the deed at Ex. 83, there is clear mention that the adoption has been gone through according to the caste custom and the religious book and after performing the adoption ceremonies. This admission on the part of Hirabai in the registered deed along with her evidence, to which we have made reference, clearly goes to show that the case set up by Hirabai was totally false. The admission given by Hirabai that after the deed was so executed after engaging the pleader and registered, defendant Babu was residing with her for quite a long period and she had always intended to take him as the adopted son, are clearly suggestive of the fact that there must have been in fact adoption ceremonies, as spoken to by Babu. The evidence of Madhav and Babu along with Ex. 69, the mutation application, also furthers and fortifies this inference. It is, therefore, obvious that Hirabai had set up totally unsustainable and untrue case on the aspect that in fact there was no adoption ceremony and the deed was executed on the representation that such an adoption ceremony would take place thereafter. In the present case, on the basis of the evidence, it is obvious that not only the initial presumption attached to the deed is not shaken but, on the other hand, it is clearly fortified by the conduct of Hirabai herself and the circumstances available in the case.

11. Having found so, we have little hesitation in holding that Ex. 69 evidences the unequivocal intention on the part of Hirabai to yield her interest in the suit property. The evidence of Babu is consistent on this aspect also. He has acted as the full owner thereafter of the suit property. In the registered deed at Ex. 83 itself, we find that Hirabai had declared that the adopted son would have all rights with regard to the property left by her deceased husband like those of the natural son. It is obvious that in keeping with this declaration available in Ex. 83, Hirabai acted to yield her interest in favour of her adopted son and approached the Revenue Authorities and surrendered the property in his favour. Both the findings recorded by the learned trial Judge on these aspects of facts are, therefore, affirmed.

12. As far as oral surrender by a Hindu in such property is concerned, there is good authority of this Court in Ramdas Chimna v. Pralhad Deorao, : AIR1965Bom74 , that it can be done without any document, there being no impediment of effecting such surrender in terms enacted by the provisions of the T. P. Act. We are in agreement with what is observed by the learned single Judge of this Court in Ramdas Chimna's case that the oral relinquishment by the mother of her interest in Hindu Joint Family property exceeding Rs. 100/- in value is valid and effective. There is also the authority for such proposition of a Division Bench of this Court in Kisansingh v. Vishnu, : AIR1951Bom4 , where the father by recourse to division of property evidenced by oral declarations settled the same on his sons. Thus there could be, in law, surrender in favour of Babu by his adoptive mother Hirabai.

13. However, the submission, as indicated above, is that Babu had no interest in the property, Hirabai being the sole surviving widow holding the joint family property and, in view of the provisions of Section 14(1) of the Succession Act. having become the full owner thereof, and unless the property was conveyed by resort to deed of gift, the surrender must fail. It is further submitted that to be a surrender, there must be some interest in the property in favour of the person who is the beneficiary under such surrender.

14. As far as Babu is concerned, once we uphold the adoption, as we must, not only because of the provisions of Section 16 of the Adoption Act but because of the evidence in the case, the question is whether as a result of such adoption, he gets interest in the property in the hands of his adoptive mother, who was the sole surviving widow in the family. If the answer is in the affirmative, then it is not disputed that the surrender would be operative. On this aspect, naturally, the debate before us had been expansive and we have ourselves bestowed considerations on all aspects of the matter to find out as to whether Babu would as a result of adoption, which is found to be effective, possess interest in the property which, admittedly, is the joint family property coming from the husband of the adoptive mother Hirabai.

15. The provisions of law to which our attention was invited may now be extracted. As far as the Succession Act is concerned, reliance is placed on Section 14(1), which reads as follows:--

'14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner there-of and not as a limited owner.

Explanation:-- In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act'.

(Underlining provided).

As far as the provisions of the Adoption Act are concerned, reliance is placed on Ss. 12 and 13 and those read as under:-

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

Provided that --

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

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the 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'.

'13. Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. (Underlining provided.)

These provisions have to be read in the backdrop of the Hindu personal law with regard to the device of adoption known to it and the institution of property and its peculiar characteristics when it happens to be the joint Hindu family property or the coparcenary property. A little feed-back on this aspect is necessary.

16. Institution of property amongst Hindu is as ancient as the hoary origin of Hindu personal law. With passage of time, property amongst. Hindus has acquired definitive ' characteristics. Coparcenary or joint family property is mostly the bundle of specific rights and liabilities and a unique amalgam of obligations and duties. The coparcenary or the joint Hindu family has the origin in the community or the participatory social principles. Joint family by itself is a wider and larger unit than the family itself. Not only it is united by common kinship having repository origin in ancestor ship but also normally, subject to well accepted principles of acquisition of property, it is a commensally relation of the given members to the property, the interest in which is a fluctuating interest depending on the constituents having rights in property. The basic principles of common enjoyment, common participation and definite rules of succession have developed over a period and have taken firm foundations in the system of personal law. With development and growth of families and their relations to property, stream of various principles has widened, keeping however the mam vein entirely unaffected. The two distinct principles that hold the members in relation to property have been the commensality in proprietary interest and specific rules of succession like survivorship along with the charge and obligation for the maintenance and sustenance of the other members of the family.

17. In law, when we conceive of property, pairing of its some inherent aspects cannot at all be ignored. 'Property' is a term of wide amplitude and, in fact, is the sum of several interests, rights and obligations that arise because of the relation of persons inter se and relation of group of persons with the object or corpus of the property. Mere object of property, though it may be a source of economic gain or be a means of production, is not the totality of the property although it is the basic item that goes to make the same. This corpus or object becomes property because of its relation to persons. Property thus in law is both corpus and capacity. Beneficent it is always, while considering the laws of property and the entitlement of persons with regard to it, to keep in mind the jural aspect, being the character of the property, and entitlement of persons with regard to the same. It is the relation of persons to the property that assumes first and primary importance in the matters of law. When we conceive of ownership, either limited or full in the context of property, we conceive of the entitlement of persons to deal with the same, ownership being a specific relation of persons to property. Acquisition 'with regard to property, broadly speaking, comes to person either by operation of law or by legal device. In the matters of succession, the law postulates and super-imposes incident of heritable continuity and as such acquisition of property by succession is an acquisition by operation of law operating in fact at a point of time when succession opens to the person either because of legal or natural death. With death there is a termination of interest followed by a new succession. Similar is the position in principle with regard to legal or natural birth of person if the family in which such birth takes place is attached with the rights and privileges having interest and relation in property. Such demise is automatic upon happening of a given event and is the effect of the law that unites persons with property and clothe them with the entitlement with regard to the corpus thereof. Persons getting property via the process of law in this manner, subject to the premises of given law, acquire interest in such property. This and similar process of passage of property by operation of law is distinctive process and has to be distinguished from the acquisition of property by devices known to law, including those of transfers of property inter vivos.

18. As far as Hindu coparcenary or joint family is concerned, once it is a coparcenary or the joint family having property, the distinctive character of the former is super-imposed on the latter as a result of the operation of law. Some of the distinctive and recognised characteristics of the coparcenary property are its capacity to be available for common enjoyment and appropriation and conferring rights and interest in property in favour of male coparceners and charging an obligation in favour of female dependants. The entitlement of persons born within the coparcenary is an event that has its impact and imprimatur on the very character of the property. Once the character of the property is thus of the coparcenary by reason of its origin and by reason of the relation of persons to the said property, then the incidents of such property have a juridical fixity unless the very character of the property is changed. In such property getting interest by birth and having succession by death are both matters of law.

19. In the perspective of historical jurisprudence underlying the principles that are the part of the Hindu personal law, one shining principle stands out and that is that there is a constant attempt to arrest the process of individualization and as such personal appropriation of property and along with it to uphold and further the principles of community of interest. Property is held all through in jural unity and is shared because of the close commensality of relations. While considering, therefore, the laws which purport to codify specific subjects having impact on property, the backdrop of all these principles must necessarily be present to every interpreting mind, for without it we are likely to miss the very bearing on which the system of particular law purports to be dynamic.

20. As far as adoption is concerned, subject to specific family or caste custom prohibiting adoption, the device is recognised by the personal law of Hindus and sanctioned by its shastric text. A son given in adoption known as Dattaka has all the hoary origin and full sanction of the personal law. The object of adoption in the context of personal law has always been spiritual as well as temporal, in that it was meant to secure spiritual benefit to the adopter and his ancestors. (See Bal Gangadhar Tilak v. Shrinivas, 42 I. A. 135: AIR 1915 PC 7. Though the purpose was spiritual, its effect had always been temporal as well as secular, for the adopted was conferred with rights and entitlements attached to the birth in the adoptive family. Not only adoption resulted in de jure transference of the person from one family to another, but it conferred upon the adopted the same rights and privileges as those of a natural born legitimate son in the adoptive family having snapped all his ties with his natural family. Adoption has been looked as a process of substitution of a son of a deceased for spiritual reasons having also consequences of devolution of property as an accessory incident of the adoption itself (See Chandrasekhara v. Kulandavelu, : [1963]2SCR440 ). The adopted son is clothed with the rights of inheritance as a natural born son in the adoptive family, subject to the known and recognised exceptions with regard to the quantum of inheritance. Qua the coparcenary, the adopted son from the moment of his adoption becomes the member thereof and enjoys all the rights and privileges as though he was born as a coparcener. Under the tenets of Hindu Law, when adoption is made by a widow or a widower, it does have the effect of divesting of estate which result does not follow when the adoption is made by a married male member during his lifetime, for in that case upon his death the estate would vest in the adopted son as the nearest and apparent heir. Both in the case of widow and widower, the adoption has the effect of divesting of the estate that had vested upon the death of the spouse. The adoption, therefore, implies to some extent the process of self-divesting of inherited estate obviously because it is the accessory result attached to the event of adoption, notwithstanding the power to adopt having no bearing upon any question of vesting or divesting of the property. Sue Madana Mohana v. Purushotthama, AIR 1918 PC 74, quoted with approval in Gurunath v. Kamalabai, AIR 1955 SC 200. In Krishnamurthi v. Dhruwaraj, ' : [1962]2SCR813 , the Supreme Court on the basis of its earlier decision rendered in Shrinivas Krishnarao v. Naraya' Devji, : [1955]1SCR1 , stated the principles with regard to the rights of an adopted son in the matters of property of his adoptive father and also of the collaterals as follows :--

'(i) An adopted son is held entitled to take any defeasance of the rights acquired prior to his adoption on the ground that in the eye 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 Bon.

(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 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 if the widow made an adoption, the rights of the adopted son are the same as if he had been in existence at the time when 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 proper-ties,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 relates 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 thereafter not liable to be divested. When succession to the properties of a person other than 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 whosoever's hands it may be, that is, whether in the hands of one who is the absolute owner Or one who is a limited owner'.

In that case, one Krishnabai owned the property as full owner on the death of her father Narasappagouda, but her title was defeasible on Tungabai, widow of Bandegouda, adopting a son to her husband Vasappa and after him his sons inherited the property of Krishnabai and thus the appellants had claimed under Krishnabai. The Supreme Court found:--

'.......such claim is therefore defeasible on the adoption of a son by Tungabai. The fact that Krishnabai inherited the property of her father absolutely, does not affect this question of title being defeated on the adoption of a son by Tungabai. The character of the

property does not change, as suggested for the appellants, from coparcenary property to self-acquired property of Krishnabai so long as Tungabai, the widow of the family, exists, and is capable of adopting a son, who becomes a coparcener'. (Underlining provided).

It is obvious, therefore, that, depending upon the character of the property, by adoption, the adopted son acquires the interest and entitlement thereto involving the result of divesting of estate by inheritance of persons other than the adoptive father and mother. As far as the adoptive father or mother is concerned, it is obviously a case of self-divesting of the estate again depending clearly on the character of the property in the hands of the adoptive father or mother. It is equally obvious that, as stated in the principles enumerated in Krishnamurthi's case : [1962]2SCR813 (supra) in the eye of law there is a de jure relation back of the adopted son for the purpose of his entitlement to the date of the death of his adoptive father, he being put in the position of a posthumous son. As a part of this doctrine of relating back, defeasance of the rights already acquired followed and was worked out even with regard to the estate vested by inheritance.

21. We have set out all these principles so as to have a feed-back background for the purpose of understanding the changes brought about by the provisions of the Succession Act and the Adoption Act. It may be stated at the outset that ihe Succession Act, which is an Act to amend and codify the law relating to intestate succession among Hindus, became operative on June 17, 1956, while the Adoption Act, which is meant to amend and codify the law relating to adoptions and maintenance among Hindus, was applied as from December 21, 1956. At the outset, it may be further observed that these two Acts are the Acts on specific subjects and, to the extent of express enactments, substitute the personal Shastric law applicable to Hindus to the extent it is inconsistent with any of the provisions of these enactments. Being specific enactments on specific subjects, these do not pre-empt the entire personal law, including the institutions governed by those laws except to the extent specifically provided for by the provisions of these laws. Generally speaking, the basic institution of Hindu joint family or the coparcenary is not intended to be affected except to the extent of enlargement of the estate held by the females who had no status of the coparcener but could be the members of Hindu joint family, and even the rule of survivorship applicable to the Mitakshara coparcenary property has been afforded the status of enacted legislation by Section 6 of the Succession Act, subject to the specific rule of devolution enacted by the proviso. Furthermore, the Succession Act, does not purport to define the term 'property' nor the Adoption Act defines the term 'adoption' and these terms in these Acts are obviously to be understood as having reference to the recognised definite connotations applicable to these terms in the contemplation of the Hindu personal law. As far as adoption is concerned, the term is well known to both social and legal vocabulary and it indicates the process of voluntarily taking into any relationship (as heir, son, father, etc.) which the person so taken did not previously occupy. Forging such familial relation is the first and foremost implication of adoption. With regard to the child, when such a child is taken in adoption, it clearly implies that such taking involves not only taking that child as a relative and making it as one's own child but also conferring such a child with all the familial rights and privileges attached to such child ship or such of them as the law permits and sanctions to be thus conferred. Such taking implies two logical and legal consequences. Firstly, it implies a voluntary creation of relationship by the act of taker and secondly, upon the child so taken or adopted, its conferment of rights and privileges attached to such child ship, It follows, therefore, that the taker by the very necessary implication of the legal device of adoption confers not only the status but also the rights and privileges which are just the necessary incidents of child ship, subject to the express provisions of law. Adoption thus is a legal device of taking and has the result of substitution in the family of the taker along with the rights and privileges annexed to such status. If such rights and privileges are the rights and privileges in property, then upon such taking, those inhere in the child so taken.

22. As far as the provisions of the Succession Act are concerned, the capacity of the female to be the prospective mother by adoption to herself and to her husband is obviously not affected. She continues to possess that capacity and when she is a widow in a Hindu family, she has full and unimpeded authority to adopt. Section 8 of the Adoption Act expressly declares such capacity in favour of the female Hindu of the kind mentioned therein to take a son or a daughter in adoption. It is implicit in Section 8 that a female Hindu, subject to the modality described by law, has vested right to have a son or a daughter by adoption and to confer such a child all that status and rights and privileges of the child ship in the family of such female Hindu. The effects of such adoption have been statutorily enacted by enacting Section 12, in that, with effect from the date of adoption, the adopted child is deemed to be the child of the adoptive father or mother for all pur poses. The conferring of the child ship . and its results are indicated by using the phrase 'for all purposes' and also having resort to a legal fiction by use of the phrase 'shall be deemed to be' Now, whatever may be the earlier controversy with regard to the effects and purposes of adoption, the provisions of Section 12 make the adopted child the child for all purposes, including spiritual, secular or temporal. The deeming has the real and logical effect of placing the adopted child on the same footing as the real child in the adoptive family of the adoptive father or mother. The law with regard to legal fiction has to be carried and implemented with all its logical results. (See State of Bombay v. Pandurang, : 1953CriLJ1049 ). Therefore, the effect of adoption obviously is, when the adoption is by a widow, to make the adopted son to be the member of the family of the deceased husband of the widow. In the case of Sawan Ram v. Kalawanti, : [1967]3SCR687 , with regard to Section 12, the Supreme Court observed :--

'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 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 recognised that, after a female is married, she belongs to the family of her husband. The child adopted by her must also, therefore, belong to the same family. On adoption by a widow, therefore, the adopted son is to be deemed to be a member of the family of the deceased husband of the widow. Further still, he loses all his rights in the family of his birth and those rights are replaced by the rights created by the adoption in the adoptive family. The right, which the child had, to succeed to property by virtue of being the son of his natural father, in the family of his birth, is, thus, clearly to be replaced by similar rights in the -adoptive family, and, consequently, he would certainly obtain those rights in the capacity of a member of that family as an adopted son of the deceased husband, of the widow, or the married female, taking him in adoption. This provision in 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'.

Similarly, in Sitabai v. Ramchandra, : [1970]2SCR1 , after noticing the provisions of Sections 11 and 12 of the Adoption Act, the Supreme Court observed :--

'... that the effect of adoption under the Act is that 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 test with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption,... ...... ... The scheme of Sections 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of sonship with the deceased husband of the widow. ...............The true effect and interpretation of Sees. 11 and 12 of Act, No. 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the the child of both the spouses'.

These authorities are enough to indicate that by express statute, the Adoption Act provides for the effect of adoption, when the adoption is by a widow, to make the adopted child the child born in the family and taken in adoption having relationship with the deceased husband of the widow. The legal result in the matter of status is to make the child the child of both the supouses.

23. If this be the legal effect expressly enacted by Section 12 of the Adoption Act to confer the status in the adoptive family and relate the child to the deceased spouse in the case of adoption by a widow or widower, it follows that from the date when this legal result is in fact achieved, though by enacting a fiction, all the rights and privileges attached to that status must as a necessary consequence be implied as annexed and available to the person upon whom such a status is conferred. One of the recognised and admitted consequences of such status is the right and interest with regard to the property either belonging to the family or belonging to the father or mother or both, depending upon the incidents of such property and the entitlement of the child with regard to it by reason of the birth in such family. Section 12 of the Adoption Act, which deals with the effect of adoption, and Section 13 of the Adoption Act, which deals with the right of adoptive parents to dispose of their properties, are obviously enacted for distinct purposes and will have to be comprehended as such. The fiction evolved and existing and known as 'relation back doctrine' had, as stated above, the effect of introducing somewhat anomalous legal fiction so as to confer rights with respect to the property of the adoptive father and of collaterals of the adopted son. As a fiction, such a son was treated to have been born to the adoptive father and was placed in the position of a posthumous son. (See Srinivas Krishnarao v. Narayan Devji, : [1955]1SCR1 . To treat it so, his adoption was tacked backwards to the date of the death of the adoptive father and on that basis his rights in the property of the adoptive father and of his collaterals were worked out. Thus, relating back had two significant effects, one as to the anterior status conferred upon the adopted son and along with it conferring rights in property on the basis that such status was fictionally available at that anterior date. Having clothed the adopted son in this manner with status along with the rights, the further rights of the coparcenary and its property were worked out. To do away expressly with this fiction which had the anomalous as well as unfair results, the Legislature has enacted the provisions of Section 12 and, as stated above, while doing so, has also resorted to a new legal fiction by preference for the phraseology having words indicating the same. The availability of the words 'shall be deemed to be' and also the words 'for purposes' is clearly meant to introduce and substitute a new legal fiction. Instead of relate back under the provisions of Section 12, there is a cleat intendment of prospective-furthering. 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 born 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 and for that purpose, that is, for conferring the child ship, it will have to be deemed that both the adoptive father and mother are available to confer that status upon the child. Therefore, the act of adoption by the prospective mother would be the act of adoption for herself as also for her deceased husband, who, in fact, is dead but for the purpose of law would be deemed to be available as and when the adoption takes effect. This prospective-furthering appears to be implicit in Section 12 and will have to be applied on the same principles which are not otherwise inconsistent with any of the provisions of either the Succession Act or the Adoption Act. As a consequence of this position, it follows that on the date of the adoption, the adopted child becomes the immediate heir to his deceased father or mother from that date and acquires all accessory capacity to take the property. The property in such premises follows the status. The words 'for all purposes' are indicative of the legislative intent and would include the rights in property which come by reason of the birth in the adoptive family. The prospective -furthering implies negatively a prohibition with regard to the rights running anterior to the date of adoption and on that basis to claim rights and privileges with regard to the property, notwithstanding the deeming introduced by Section 12 so as to make the child born to the two spouses, one of whom is already dead. The rights and privileges, therefore, by virtue of the prospective-furthering would get annexed to whatever remains of the property as on the date the effect of adoption is enjoined to take place. Having thus repealed the relation back doctrine, the Legislature has taken care to confer express rights and privileges upon the adopted child and such rights and privileges are not restricted by any express words available in Section 12. This was obviously necessary because from the date of the adoption all the ties of the child from his natural family are deemed to be severed and replaced by those created by the adoption in the adoptive family. The process is that of legal preemption of rights by providing severance and substitution. If, therefore, in the natural family of birth the child had the right because of the birth, he is placed in the position to claim a similar right in the adoptive family. Once this position is available in the text of Section 12, which introduces legal fictions which are required to be worked out logically so as to achieve the statutory results, then if follows that in the adoptive family, if there be the property of the family in which a child born in the family gets interests by reason of the birth, then such a right will be deemed to have been conferred as a result and effect of adoption, subject however to the exceptions expressly provided for by Clause (c) of the proviso to Section 12, The process, primarily, as we have indicated above, is the process of statutory conferring of status followed by the rights and privileges in the adoptive family and while considering Clause (c) of the proviso, we will have to bear this object of prospective-furthering clearly in view,

24. With regard to this special provision contained in Clause (c) of the proviso to Section 12 of the Adoption Act we have the observations of the Supreme Court in Sawan Ram v. Kalawanti, : [1967]3SCR687 , to the following effect:--

'......by making such a provition, 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 dive at other members of the family of rights vested in them prior to his adoption. It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in Clause (c) of the proviso to Section 12, and Section 13 of the Act were incorporated. In that respect, the rights of the adopted child were restricted. It is to be noted that this restriction was placed on the rights of a child adopted by either a male Hindu or a female Hindu and not merely in a case of adoption by a female Hindu. This restriction on the rights of the adopted child cannot, therefore, in our opinion, lead to any inference that a child adopted by a widow will not be deemed to be the adopted son of her deceased husband.' (Underlining provided).

25. In Sitabai v. Ramchandra, : [1970]2SCR1 , the Supreme Court was considering the effect of adoption that took place on March 4, 1958 in the coparcenary of two brothers, one of whom died in 1930 and the other after adoption in 1958. The widow of the first adopted a son prior to the death of the sole surviving coparcener. The judgment, under appeal before the Supreme Court, of the Madhya Pradesh High Court had taken the view that as the son of the adoptive mother came in the family from the date of adoption, he did not obtain any coparcenary interest in the joint family properties. Reversing this reasoning, the Supreme Court observed that at the time of adoption the joint family continued to exist and the disputed properties did retain their character of coparcenary properties, for under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint family did not cease to belong to a joint family merely because the family was represented by a single coparcener who possessed rights which an absolute owner of property may possess. The judgment of the Judicial Committee in the case of Attorney General of Ceylon v. Arunachalam Chet-tiar, 1957 AC 540, was quoted with approval stating that it is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family. The Supreme Court quoted from the Judicial Committee's observation to the effect:--

'.........though it may be correct; to speak of him as the 'owner', yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality; it is such, too, that female members of the family (whose members may increase) have a right to maintenance out of It and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be the joint family property.' (Underlining provided).

The Supreme Court further pointed out that the basis of the decision of the Judicial Committee was that the property which was the joint family property of the Hindu undivided family did not cease to be so because of the 'temporary reduction of the coparcenary unit to a single individual' and that the character of the property, namely, that it was the joint property of a Hindu undivided family, remained the same. This decision thus clearly laid down that after permissible adoption by the widow of the deceased coparcener, the adopted son by reason of that became the adopted son of both the widow and her deceased husband and further became a coparcener with the sole surviving coparcener and got rights in the joint family property of the coparcener. The ratio of both Sawan Ram's case : [1967]3SCR687 and Sitabai's case : [1970]2SCR1 clearly goes to show that the exception carved out by Clause (c) of the proviso to Section 12 of the Adoption Act is meant only to protect the others of rights vested in them prior to the adoption and is not intended to deprive the adopted child of the rights with regard to the property belonging to the joint family, wherein such child would have got interest by birth, the date of his birth only being fixed fictionally to the date of the adoption. Section 13 of the Adoption Act is clearly enabling and does not deal with the property wherein by reason of birth an interest is created, but deals with the property belonging to the adoptive father or mother. It preserves, notwithstanding the adoption, the right of the adoptive father or mother to dispose of his or her property by transfer inter vivos or by will. Obviously, the provision was enacted so as to clarify that adoption would not have the negative effect on the right of ownership with regard to the property belonging to the adoptive father or mother. Being born as a son by the device of adoption, a child could claim against the adoptive father or mother the right of proper maintenance which was likely to be raised as a charge against the property of the adoptive father or mother. It is presumably to clarify that the right of disposition is unaffected by the adoption -that the provisions of Section 13 have been enacted. Juxtaposing both Sections 12 . and 13 together, it is obvious that the main part of Section 12 confers all rights and privileges upon the adopted child, including those which are attached to the incident of natural birth with regard to the property, subject however to the fiction of operation of those rights from the date of the adoption and those providing for a prospective-furthering. Under this, in the property by reason of birth, if the interest arises, it follows that by reason of adoption too a similar interest in the property would arise from the date of such adoption, subject however that the other members of the family would not be divested of the estate vested in them.

26. The position of the widow taking the property by reason of the fact that she is the widow in a Hindu undivided family and has become a full owner thereof in place of limited ownership would not, in our view, change the character of the joint family property in her hands, notwithstanding her entitlement to deal with it as a full owner.. In the earlier part of the judgment, we have indicated that the position of a Hindu widow, as a prospective mother having capacity to adopt, has to be kept in view while considering her right and entitlement with regard to the property be-longing to the Hindu joint family that may happen to come in her hands Section 14(1) of the Succession Act is a declaratory provision and, no doubt, declares that the property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner, but this declaration of the statute has to be understood in the context of the law that was being replaced by the enactment of Section 14 prior to this enactment, a Hindu female was holding the property that came to her from the family of her husband 'as a limited owner', indicating thereby her limited capacity or entitlement to deal with the property. That capacity and entitlement were enlarged by enacting the provisions of Section 14(1) by use of the words 'shall be held by her as full owner' in juxtaposition of the negative clause' 'and riot as a limited owner'. (See Vajia v. Thakorbhai, AIR 1970 SC 993. No doubt, Section 14(1) comprises all properties, including those acquired by inheritance, and further declares the female Hinduto be the full owners. However, it hasno effect in changing the original character of the property, if that be the property of the joint family. In the caseof Commr. of Income-tax v. VeerappaChettiar : [1970]76ITR467(SC) , theSupreme Court laid down :--

'It is not predicated of a Hindu joint family that there must be a male member in existence. Even after the death of the sole male member, so long as the property which was originally of the joint Hindu family remains in the hands of the widows of the members of the family and is not divided among them, the joint family continues'.

'It is obvious that notwithstanding the fact that the property comes in the hands of the Hindu widow, it does not lose its character as the one that belongs to the Hindu joint family. This is more so when the Hindu widow can be the prospective mother because of the legal capacity to adopt a child to herself and to her deceased husband. That capacity involves, as we have indicated earlier, to have an adoptive child to herself and to her husband and to confer him with the similar status as one that of the natural born child, which event has the legal effect of creating interest in the joint family property if such a property exists at the date when the adop-. tion takes effect and it begins to operate on the principles of prospective-furthering. The entire process is voluntary. Once the event is achieved the effect follows. Only because a particular legal effect ensues, the initial character of voluntary act does not cease to be so and has to be continued even for the purpose of the result from that perspective.

27. This discussion would show that on the high authority of the decisions of the Supreme Court, to which we have made reference, it is an outstanding feature of the joint Hindu family property, whether in the hands of the sole surviving coparcener or in the hands of the widow, that it retains its character as well as all its incidents. In other words, such a property has juridical fixity in retaining its character and incidents with certain inalienable attributes, which for the purpose of law must be treated as part of the property, and whosoever gets the same in the family takes the same with all such inalienable attributes. At this stage, we may again state that the event of birth of a coparcener raises a relation in favour of such a coparcener with regard to the property of the coparcenary. This has obvious purpose to serve so as to further the principle of common-sharing and avoiding individual appropriation ot pro-perties. In the context of Section 14(1) of the Succession Act, though the section declares that the property shall be held by the female Hindu as a full owner thereof, in our view, it has not the effect of changing the basic character of the coparcenary property. As far as that property is concerned, the change is in the matter of her entitlement to deal with the same and that is made explicit by use of the phrase 'not as a limited owner'. When the female is a widow and gets the property in her hands because she happens to be the widow in the joint family, all the previous historical impediments on her entitlement have been expressly removed, but nonetheless we do not find any evidence in the text of the several sections of the Succession Act so as to infer a change in the character of that property. Like every full owner, she is entitled to deal with it, but along with that are the inalienable attributes which are the part of the property itself. We have observed above that a widow is a prospective mother in the sense that by legal device of adoption she is entitled to adopt a child in the family, A full owner having the property of a particular kind and having the capacity to adopt a child who will by reason of such birth get interest in such property is a case not at all ruled out by the terms of either Section 14(1) of the Succession Act or by the text of Section 12 of the Adoption Act. As soon as a person is born or a child is born by the legal device, the resulting interest in his favour would ensue. The possibility of such interest coming into life and becoming operative is always there by reason of the character of the property.

28. We have underlined the portions on which much stress was laid during the course of the debated submissions before us on the original text of Section 14(1) of the Succession Act and Sections 12 and 13 of the Adoption Act. As far as Section 14(1) of the Succession Act is concerned, it is obvious that it operates oh the entitlement with regard to property which is in possession of a female Hindu. By itself, the properties out of possession of the Hindu female are excluded. So also the distinctive feature of the provision indicates that the legislative declaration has to be understood because of the express use of the words 'full owner' in juxtaposition of the use of the well-known phrase 'the limited owner', thereby indicating that what was really intended was to augment the ownership with regard to the property of the female Hindu. It needs no emphasis that if she was already the full owner of the given property, such as Stridhan property, such a statutory declaration was not at all necessary. It is only with regard to those properties where her entitlement was limited that the statutory intervention was thought to be necessary so as to augment the rights in property of the female Hindu. As far as the provisions of Section 12 of the Adoption Act are concerned, the main part consists of the fiction, to which we have made reference above and called it a fiction for the purpose of prospective-furthering replacing the earlier fiction of relation back. As reliance is placed on Clause (c) of the proviso to Section 12, we may indicate that the entire section uses the words 'adoptive father' or 'adoptive mother' as well as 'adoptive family' to indicate the persons and the family of whom the adopted child by virtue of law becomes the child by adoption. It is significant that the main part of Section 12 speaks of replacement of all ties of the child from the family of birth and substitution by those created in the adoptive family. Though, therefore, the mode of adoption permissible is by an individual person called adoptive father or mother, the rights are created in the adoptive family and this fortifies our inference that, if there be the property of the family, by virtue of adoption rights are created as a matter of law with regard to such property in favour of such child and if the property be of the character to which we have already made reference, then there is no reason to hold that such rights which are attributive part of such property are not created in favour of such a child. Having enacted in so express a term, is there any evidence to suggest that by virtue of the proviso, and particularly Clause (c), those rights are curtailed. The proviso enacted by the Legislature has mainly the function of enacting exceptions and it is the primary duty of the interpreting Court to find out its exact amplitude. None of the clauses of the proviso, and particularly Clause (c), purports to refer to the rights of adoptive father or mother. Clause (c) speaks of divesting of any person of any estate. No doubt, in the context of Hindu Law, divesting and vesting are the terms of art and have by passage of judicial pronouncements acquired distinctive meaning, including the meaning that adoption can have the effect of divesting of estate in the hands of either the adoptive father or mother. What is significant to observe is that in Clause (c) the words used are 'any person'. It is possible to include adoptive father or mother in this wide phraseology, but, as we have indicated above, if the adoption be the voluntary act to which certain consequences by necessary intendment are attached, it is indeed difficult to include within the ambit of 'any person' the adoptive father or mother of the child. By such an interpretation, we will have to add after the words 'any person' the phrase 'including adoptive father or mother'. Such an inclusion does not appear to be necessary to carry out the intent of the provision. The purpose of Clause (c) is only, in our view, a restricted one so as not to affect the vested interest that became vested prior to the date of adoption. It is just the consequence of abrogating the doctrine of relation back, In this sense, we are inclined to infer from the language of Clause (c) that it does not include the self devastation which is the legal result of adoption with regard to those properties where such self divestation is possible by reason of either natural birth or legal device of adoption. In the proviso, protection is available to other persons and before us it is not the controversy, nor we need dilate as to find out the exact amplitude of that protection in this case.

29. The provision of Section 13 of the Adoption Act, in our view, clearly speaks of the property of the adoptive father and mother and not the property of the family. It is enabling and is obviously enacted with a view to clarify that notwithstanding the adoption, such adoptive father and mother retain their power of disposal with regard to such property. This bv itself furnishes inherent evidence that with regard to the other property, that is the property belonging to the adoptive family, of which by reason of adoption the child becomes the son. Section 13 does not make a declaration in favour of the adoptive father and mother. Thus, either taking independently or taken together, both these sections are indicative that by reason of legal device of adoption the adopted child becomes adopted in the family and gets interest in the family property.

30. The decision of the Supreme Court in Punithavalli Ammal v. Ramalingam, : [1970]3SCR894 , was under the provisions of Section 14(1) of the Succession Act and held that because of the enactment of Section 4(1) of the Succession Act, the doctrine of relation back was not available and the full ownership conferred on a Hindu female Under Section 14(1) was not defeated by subsequent adoption by her. The ratio of this decision obviously is shaken and in the case of Shripad v. Dattaram, : [1974]3SCR474 , the Supreme Court observed that the observations in Punithavalli Ammal's case were clearly obiter and were wider than justified. In Shripad's case no doubt, the adoption was prior to the Succession Act as well as the Adoption Act and the Supreme Court observed --

'It is 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 the adoption, if they are made for legal necessity or otherwise lawfully, such as with the consent of the next reversioners, are binding on the adopted son. The narrow but important question that arises here is as to whether the adoption made in 1956, can upset the partition of 1944, validly made under the then conditions, and whether the gift by Mahadev of properties exclusively set apart to him and, therefore, alienable by him, could be retroactively invalidated by the plaintiff on the application of the legal fiction of 'relation-back'. It is unlikely that a similar question will arise hereafter since Section 4 of the Hindu Succession Act, 1956 has practically swept off texts, rules and the like in Hindu Law, which were part of that law in force immediately before the commencement of the Act, till provisions have been made for such matters in the Act. Since on the husband's death the widow takes an absolute estate, questions of the type which engage us in this appeal will be stilled forever. Of course, we need not investigate this aspect of the matter as the present case relates to a pre-statutory adoption. Even Section 12 of the Hindu Adoptions and Maintenance Act, 1956, makes it plain that 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 the adoption',

It is obvious that with reference to Section 12 of the Adoption Act, the Court did declare that the adopted child would 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 for these observations we would have been bound by the decision in Punithavalli Amma's case. However, it is not apparent from the judgment in Punithavalli Amma's case as to what type of property came in the hands of the widow. The facts indicate that the widow got inheritance of the property of the husband and after the adoption, out of that property, she had settled 9 acres and 16 cents of land. That was after she became full owner under Section 14(1) of the Succession Act. On that basis, the case was decided. We do not find in the body of the judgment any reference to the coparcenary property. On the other hand, in Sitabai's case : [1970]2SCR1 , the Court was concerned with the sole surviving coparcener and the character of the property was a coparcenary property. The post-adoption effect on the entitlement of the full owner of such property was hi issue and, in our view, that is decisive, as far as the present controversy is concerned. It is significant to observe that in Punithavalli Amma's case, the Supreme Court approved the decision of a Division Bench of this Court rendered in Yamunabai v. Ram Maharaj Shreedhar Maharaj, AIR 1960 Bom 463. As we will presently indicate. Yamunabai's casa too was dealing with the property which cannot be treated as tbp point family property or the coparcener property. This approval also is indicative that Punithavalli Amma's case is distinguishable with regard to the character of the property.

31. We have already indicated the other decisions of the Supreme Court, being Sawan Ram v. Kalawanti, : [1967]3SCR687 , Sitabai v. Ramchandra, : [1970]2SCR1 , and Commr. of Income-tax v. RM. AR. AR. Veerappa Chettiar : [1970]76ITR467(SC) , which was followed by the Supreme Court in Krishna Prasad v. C. I. T., Bangalore, : [1974]97ITR493(SC) . We have, therefore, come to the conclusion, on the authority of these pronouncements coming from the highest Court and interpreting the terms of the enactment as we find that the character of coparcenary and its property is not affected, that its inalienable attributes are retained notwithstanding the declaration by which a Hindu female is placed in the same position as any other Hindu male would be with regard to such property. Such a view does not run counter, nor does it conflict with the express statement of' law available in Section 14(1) of the Succession Act,

32. Though it is not decisive, we may also refer to other aspects which follow as a result of the adoption. It is accepted that as a result of adoption, in the family of birth the adopted child does not retain any lien or ties and all its ties are replaced by those in the adoptive family. This would necessarily mean that as far as the interest of the kind that comes to such child because of birth in the natural family with regard to the joint family property is concerned, by virtue of adop-' tion he would be deprived of the same because he ceases to be the child in the family. If we were to assume that even though in the adoptive family there exists the joint family property and in spite of his or her birth in the family, he or she is not intended to have any interest therein, obviously, most inequitable, unfair and unintended results would follow. The child would lose the interest in property in the family of birth because of adoption and it would not get any interest in the property in the adoptive family. It cannot be forgotten that in the primary scheme of the statute with regard to Hindu adoption, the normal rule is to take a child below the age of discretion in adoption. The child has hardly any option in the matters of adoption. We cannot fairly think that the Legislature intended that such a child taken in adoption would not be clothed with any rights in property, though the adoptive family is possessed of such property, and these rights should be stultified only by reason of the fact that the property happens to be in the hands of sole surviving widow capable of taking a child in the family by adoption. What would happen when the sole surviving male adoptive father is available with regard to the property wherein persons get interest by birth should fairly and ordinarily happen in such case also. Summarising, because of the incidents and inalienable attributes of the property and because of adoption implying the voluntary act of the taker and because we feel that there is no conflict with the provisions of Section 14 of the Succession Act and such taking and its effect, we are of the view that upon adoption, the adopted child gets interest in the joint family property from the date of its adoption.

33. This takes us to the decisions of our Court on this aspect. Three decisions were cited before us, the first being Yamunabai v. Ram Maharaj, AIR 1960 Bom 463, No doubt, the said case turns on the provisions of Section 14 oi the Succession Act and the effect thereof on the property, but the case is clearly distinguishable because the property that was being considered was not obviously the property of the characteristics of the property of coparcenary or the property of the joint Hindu family. In fact, the property that was being dealt with was the Inam property given to Bala Maharaj and governed by the Vat Hukums issued by the Kolhapur State. After the death of Bala Maharaj on January 6, 1937, he left two widows Annapurnabai and Yamunabai. The senior widow, Annapurnabai, was recognised as 'Navawali' of the Inam property. Annapurnabai died on March 18, 1949 and upon that Yamunabai, the co-widow, became entitled to that property. Ram Maharaj, the 1st defendant, claimed through Annapurnabai by reason of adoption and it was not in dispute that to be a valid adoption it was required to be sanctioned by the State. It is obvious that the character of property as well as the entitlement thereto are the distinctive features of the case and with regard to such property, which eventually came to the hands of Yamunabai and which was not in fact the joint family property, Section 14(1) of the Succession Act clearly applied, for the property could not be defeated by the adoption of Ram Maharaj. That case is not, in our view, of any assistance while considering the interest that springs into life with regard to joint family property. Following the decision in Yamunabai's case, the learned single Judge of this Court in Kisan v. Hari, : AIR1974Bom65 , held that all properties in the hands of a widow be-cause of Section 14(1) of the Succession Act are protected and the adopted son does not get any interest even in the Hindu joint family properties. Now, as far as the adoption is concerned, the judgment itself notes that it was an adoption before the Adoption Act came into force and proceeds on the basis that the term 'full owner' makes the change in the character of the properties. In the view we have taken, this case does not appear to us to have been correctly-decided. The third case of this Court does not call for any detailed examination (being Housabai v. Jijabai, : AIR1972Bom98 ), for it is relating to alienations made by a Hindu widow prior to 1956-and the entitlement of the adopted son. to question the alienations effected by the widow at the behest of the adopted son, who was taken in adoption in 1959, We are not called upon in the present controversy to consider any such question and, as we have indicated, the question before us is as to the effect of the adoption in the year 1968, on the property that was in the family and in tha hands of the adoptive mother.

34. Therefore, by reason of the adoption, Babu begot interest in the admittedly joint family property, being the suit field. There was no impediment in Hirabai the adoptive mother, to surrender her interest in his favour. We have held on facts that such surrender was intended and was actually acted upon. As a sequitur of this, it follows that plaintiff No. 2 Latabai would not get any property only because she happened to take a deed of purchase, which appears also to be not real for the reasons already indicated, from Hirabai who had already surrendered all her interest in favour of her adopted son. The suit, therefore, was rightly dismissed and no interference is called for.

35. In the result, the appeal is dismissed with costs. The receiver discharged and directed to hand over possession of the suit property to respondent-defendant Babu.

36. Appeal dismissed.


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