1. This second appeal raises an interesting question of law as to whether an adopted son who was adopted by a Hindu widow after the Hindu Adoptions and Maintenance Act, Central Act LXXVIII of 1958, came into force, would be entitled to rights of inheritance to the properties which the widow (the adoptive mother) took as an heir to her husband.
2. One Balayee Ammal succeeded to the properties of her husband, one Nallathambi. She made several alienations and Nallathambi's sisters (plaintiffs in the present litigation) instituted proceedings in 1951 and obtained a declaration that the alienations would not be binding on the reversioners after the lifetime of Balavee. She died on 17-1-1960 and Nallathambi's sisters have filed the present suit for recovery of possession of the properties from the alienees on the basis of the declaration secured in the prior litigation aforesaid.
3. Balayee appears to have adopted her younger sister's son, minor Ganapathi on 31-12-1959 and on the same day, she had also executed a registered deed of adoption acknowledging the said adoption. The contesting defendants, i.e., the alienees and their representatives, resisted the suit on the ground that the plaintiffs have no title to sue and that as a result of the adoption minor Ganapathi became the nearer heir to the estate of Nallathambi The Sub-Judge found that the adoption had been made out. But (on the question of law) he differed from the trial Court and decreed the suit holding that the son adopted by a widow would be an heir only to the properties of the widow and not to the estate of her deceased husband. Hence the present second appeal by the defeated defendants,
4. The widow was not in actual possession of the properties of her husband she having alienated the same long before the Hindu Succession Act came into force and the reversioners of Nallathambi would be entitled to recover possession of the properties from the alienees on the death of the widow Balayee. This right of the reversioners would be unavailing if the adopted son is to be regarded as an heir not only to the widow, Balayee, but also to her husband Nallathambi. My attention was drawn to a recent Bench decision of the Bombay High Court reported in Ankush v. Janabai. : AIR1966Bom174 in which it was held that as a result of an adoption by either spouses, the adopted son becomes the child of both the spouses and that this result necessarily followed from the combined operation of the customary Hindu law and the provisions of tha Hindu Adoptions and Maintenance Act. Central Act LXXVIH of 1956, hereinafter referred to as the Act In a recent decision reported in Subhash Missir v. Thsgai Missir, : AIR1967All148 , a similar view has been taken. In the Bombay decision the main reasoning is that under Section 12 and sub-section (6) of Section 11 of the Act, there is a complete severanee of all ties of the child given on adoption in the family of his or her birth and correspondingly 'these very ties of the child became automatically replaced in the adoptive family'- The effect of the adoption is to completely transfer the child from the family of its birth to the family of Its adoption. The several deeming provisions in Section 14 of the Act tend to the same view. Section 5 and Section 8 of the Act do not warrant the view that after the commencement of the Act, the widow can make an adoption only to herself and it was not competent for her or permissible for any widow to take any child in adoption to her deceased husband. The acceptance of the rival view that the deceased husband cannot be regarded as the adoptive father would result In absurd results that while the adopted son would lose all his ties in the family of his birth, ha would not become related to the deceased husband or the husband's collateral relations and there is nothing in the Act in indicate that the provisions in the Act were intended to abrogate the position which existed under the customary Hindu taw as regards the new ties of the adoptive son in the adoptive family in consequence of his adoption by a widow.
5. Before proceeding further some preliminary observations require to be made concerning the background and the setting in which this Act was enacted and the rules of statutory construction to be observed in construing the provisions of the Act. In the scheme of codification of vital aspects of Hindu law, the first is the Hindu Marriage Act 1955 on the topic of Marriage and Divorce. Next came the Hindu Succession Act (Act XXX of 1956) which has codified the Hindu Law relating to Interstate succession The main scheme of this Act. Act XXX of 1956, is to establish complete equality between male and female with regard to property rights and the rights of the female were declared absolute, completely abolishing all notions of a limited estate. Next came in Act XXXII of 1956 concerning the topic of Minority and Guardianship Last in the series is the Hindu Adoptions and Maintenance Act. Act LXXVII1 of 1956 In many respects the Hindu Succession Act. Act XXX of 1950 and the Hindu Adoptions and Maintenance Act. Act LXXVII1 of 1956 are Inter-related and complementary; in particular, the scheme under the latter Act is to project into the law of adoption the result and consequences of the introduction of the conception of absolute estate for males and females alike and the abrogation of the conception, of limited estate. These two Acts have introduced far-reaching vital changes sweeping away and cutting at the root of the old traditional and conservative- notions and concepts of customary Hindu Law.
6. The whole of Hindu Law of adoption, its evolution and the case law is evolved from a few texts and the metaphor The metaphor is that of Saunaka, that the boy to be adopted must bear 'the reflection of a son'. The texts are: Manu, Vasishta. Budhayana, Saunaka and Sakala (Mavne's Hindu Law, 11th Edn 1950 page 188) In giving full acceptance to the fundamental conception of this fiction of the reflection and image of a real son in the son adopted, several aspects of Hindu Law had emerged. The wealth of case law which has given (?)_ round this fiction reveals in an amusing manner that this fiction when pressed into its logical conclusion had led to fantastic and absurd results and on certain aspects of Hindu law this fiction had even degenerated into a farce.
7. The customary law in several parts of India on the topics of adoption was not uniform, particularly with regard to the powers of a Hindu widow to take a bov in adoption. There were also several restrictions and prohibitions like caste, the sex of the child to be adopted etc. etc. The one important aspect which is crucial for the present discussion is that under the customary Hindu Law, in the case of adoption by a widow, she could adopt only to her deceased husband but never to herself, nor could she adopt to any other person. A mother cannot adopt to her son, nor a sister to her brother. An adoption by a woman of a eon to herself is invalid and it confers no legal rights upon the person adopted (Vide Mullah's Hindu Law. 13th Edn. p. 479, Section 449), Intimately and inseparably connected with this conception that the adoption by the widow could only be to her husband, is the religious aspect which pervaded the doctrine of adoption and the wealth of case law. When a widow makes an adoption, she acts merely as a delegate or representative of her husband, that is to say. she is only an instrument through whom the husband is supposed to act. The substitution of a son of the deceased for spiritual reasons is the essence of adoption and the consequent devolution of property is a mere accessory to it: Vide Amarendra Mansingh v. Sanalan Singh, . China Rama-subbayya v. Chenchuramayya, and Chandrasekara v. Kutandaivelu. : 2SCR440 . The inevitable conflict between the spiritual and the religious aspect of an adoption as against the secular and temporary considerations, resulted in any amount of difficulties in demarcating the line as to when the religious or spiritual background should receive full recognition as against the secular aspect The fiction of projecting back the existence of an adopted son (to an earlier date) on the date of the death of the husband, in its turn created complications on the question of vesting and divesting of estates But the foundation of the basic conception always remained the same under customary Hindu Law i.e., the widow could adopt only to her husband, never to herself and the religious and spiritual aspect was its predominent feature. The Act. has completely swept away all these basic notions. Under the Act adoption is now a purely secular institution and has lost all its religious significance. It is because of this vital change that the Act now provides that a woman can make an adoption, whether married or unmarried, and the child adopted may be a boy or a girl. The purpose of adoption is to ensure spiritual services for a man after his death by the offering of oblations and rice libations of water to the manes periodically and women having no spiritual needs to be satisfied, a woman was not allowed to adopt to herself. That Is the reason why Hindu Law did not recognise a power by an unmarried woman to take a child in adoption. For the same reason, since according to Hindu Law, women were ineligible to cater to the spiritual requirements of a person, the adoption of a daughter was not permitted as the religious considerations in the law of adoption have now been abolished and the institution of adoption has been made wholly secular. The necessary consequence is, the discrimination between a male and a female based upon religious considerations in the law of adoption has to disappear and has been rightly abolished under the Act
8. The Act has considerably simplified the law on the subject furnishing a uniform code for the whole of India. The law as to adoption by a widow is different in different States. In Mithila a widow cannot adopt at all, even if she has the express authority of her husband. In Bengal, Benares and Madras, a widow may adopt under an authority from her husband in that behalf. In Madras, a widow may also adopt without her husband's authority, provided she had obtained the consent of the husband's sapindas, if the husband had separated at the time of his death, or, with the consent of his undivided coparceners, if the husband was joint. In Bombay, a widow may adopt even without any authority. (Vide for the statements of law, Mullah's Hindu Law, 13th Edn. page 480 Section 452). The difference of opinion between the various schools of Hindu Law in different parts of India arose from varying and different interpretations put upon the following text of Vasistha 'nor let a woman give or accept a son unless with the assent of her lord'. The mass of law case law with the subtle refinement, that had crept into the law relating to the capacity of a widow to adopt have been totally abolished or superseded under the Act which now empowers a woman to adopt at any time, either a boy or a girl, without the obligation of obtaining the consent of any person thereto. The most vital and important change that has been brought about under the Act is to confer equality in a woman in the matter of adoption and to confer upon her a power to, adopt, whether married or unmarried, in her own right and not as a representative of her husband and to adopt a boy or a girl without any restriction as to caste. In fact, she can even adopt a boy though her deceased husband had expressly prohibited her from taking a child in adoption.
9. In interpreting the provisions of this Act, which as observed above is a revolutionary piece of social legislation based solely upon secular considerations of the institution of adoption, Courts cannot approach the problem with any preconceived notions based upon customary Hindu Law. It had to be borne in mind that this Act is not introducing an amendment of an existing statutory law to remedy a particular evil, defect or mischief in which case, it may be presumed that the legislature did not intend to make any substantial change in the existing law beyond what it declared (in the amending statute) either in express terms or by clear and necessary implications. This Act being a comprehensive uniform Code on the entire topic of adoption, governing the whole of India, the pre-existing law cannot afford a safe guidance in the matter of proper and correct interpretation of the provisions of the Act. Reference may be made to the oft-quoted observations of Lord Macnaghten in Bank of England v. Vasliano Brothers, 1891 AC 107--
'The proper course is, in the first instance, to examine the language of the Statute and to ask what is its natural meaning, uninfluenced by any considerations derived from previous state of the law and not to start with enquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by Interpreting the language used instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions'.
In the case of codifying statutes, it is a settled rule of construction that in respect of matters specifically dealt with by the statute, earlier law cannot be invoked for the purpose of adding to it something which is not there. The true meaning of the provisions of the Act ought not to be influenced by considerations derived from the previous state of law. It is sufficient to refer to the following headnotes Narendranath Sircar v. Kamal Basini Dasi. I.L.R.(1896) Cal 563 --
'The object of codifying a particular branch of law should thenceforth be ascertained by interpreting the language used in that enactment, instead of, as before, searching in the authorities to discover what may be the law, as laid down in prior decisions. The language of such an enactment must receive its natural meaning, without any assumption as to its having probably been the intention to leave unaltered the law as it existed before'.
The provisions of the Act may now be examined to ascertain whether there is anything in the Act, express or by necessary implication, to warrant the view that a boy adopted by a widow should be deemed to be an adopted eon of the deceased husband conferring upon the boy so adopted, rights of inheritance to the estate of the deceased husband. Section 4 declares the overriding effect of the Act, that save as expressly provided in the Act, the entire previous law (on the topic of adoption) customary, statutory, textual or any other law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act and that any other law in force, immediately before the commencement of the Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. True, this Act has to be regarded as a governing code only on the points dealt with under the Act and the Act cannot have the effect of nullifying the customary or any other law in force with respect to matters on which the Act is silent, containing no provision to the contrary express or by necessary implication. But the unabrogated part of the pre-existing Hindu Law cannot be invoked in a manner which will produce results opposed to the main scheme and structure of the Act and directly destructive of the very object underlying the Act- The crucial question for decision is whether in the face of this overriding effect as declared in Section 4, the rule of Hindu Law that when the Hindu widow makes an adoption, she makes the adoption only as a delegate and a representative of her husband bringing about an affiliation of the child with the other spouse, namely, the deceased husband, making the boy so adopted an heir to the estate of the deceased husband, would still continue to apply after the Act. On a careful consideration of the matter, I am clearly of the view, that after the passing of the Act, it is Impossible for a widow to adopt to her deceased husband and there is no question of the boys adopted being affiliated to the deceased husband. Such a view would not only be inconsistent and opposed to the main and relevant provisions of the Act, but would also defeat and frustrate the main scheme and the object of the Act which was to establish equality between males and females and the conferment of a power upon a woman to adopt to herself. It is impossible to fit into the scheme of the Act the old notion that when a widow makes an adoption, she does so as a surviving half of her husband because the vital keynote underlying the Act is the conferment of powers and authority upon a 'woman' purely as such and not as a widow.
10. Section 5 which is clear and unambiguous in its terms, provides that no adoption can be made after the commencement of the Act 'by or to' a Hindu except in accordance with the provisions contained in Ch. II and that any adoption made in contravention of the said provisions shall be void. There is no provision in the Act enabling a widow to adopt to her deceased husband. A perusal of the provisions of Chapter II shows that they are exhaustive and deal with (i) the capacity of a male Hindu to take a child in adoption; (ii) the capacity of a female Hindu to take a child in adoption: (iii) persons capable of giving in adoption; (iv) persons capable of being taken in adoption and (v) conditions which should be complied with for making a valid adoption like the age of the adoptive parents and the adoptive child, the existence of the son or daughter or a son's daughter as a bar to the adoption of a son or a daughter as the case may be, The language of Section 5 is quite emphatic and an adoption by or to 'a' Hindu which is not in accordance with the provisions contained in Chapter II is void. The customary law concerning an adoption by or to a Hindu is completely abrogated and every adoption should come within the four corners of the provisions of Ch. II. Reading Sections 4 and 5 together there can be no doubt that there is no field in which any portion of customary law could operate with regard to adoption as unabrogated Hindu law. The inference is clear that the basic and fundamental assumption under the Act is that any person, a male or female, when he or she adopts, adopts to himself or herself only and cannot adopt to another. The other relevant provisions in Chapter II lead to the same inference, Section 7 provides that a male Hindu shall not be entitled to adopt if he has a wife living except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind. The explanation to this section provides that if a male Hindu has more than one wife living at the time of adoption, the consent of all the wives is necessary, unless the consent of any one of them is unnecessary for the reason specified above. Section 8 provides that a female who is married can take a son or daughter in adoption only if her marriage has been dissolved or her husband is dead or he has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind. These two sections indicate that the relationship of adoption can be brought about by the person, male or female only for himself or herself and that that relationship cannot be foisted upon the other spouse except with his or her consent. Reference may be made to the following portion of the Statement of Objects and Reasons when the Act was introduced, not as an aid to the construction of the provisions of the statute, but solely for the purpose of ascertaining the circumstances which led to the legislation in order to find out the mischief or the evil sought to be remedied and the reform underlying the legislation:
'With the passing of the Hindu Succession Act 1956, which treats sons and daughters equally in the matter of succession, it has now become possible to simplify the law of adoption among Hindus. The Bill provides for the adoption of boy as well as girls. There is no longer any justification for allowing a husband to prevent his wife from taking a child in adoption after his death. The adoption made by a Hindu widow will hereafter be in her own right. No person need be divested of any property which has vested in him by reason only of the fact that subsequent to such vesting an adoption has been made. This rule of divesting has been the cause of many a ruinous litigation'.
Sections 7. 8 and 12 of the Act show how this object was sought to be achieved by the Legislature. The object underlying Section 7 is to completely abrogate the customary Hindu Law under which a male Hindu can foist the relationship of an adoptive mother upon his wife without her consent or even despite her objections. After the Act, if the requisite consent of the wife is obtained, the wife is regarded as the adoptive mother because the adoption so made by a male Hindu is not only by himself but by his wife as well. In the case of a Hindu female, there is no such provision for her making an adoption during the husband's lifetime even if he consents. In other words, in the case of an adoption by a Hindu female, there is no question of her making an adoption in any contingency in which the adoption could be held not only for herself but to her husband as well. Section 14 contains the 'deeming provisions' so-called, in the case of an adoption by a male or female and this has to be read along with Sections 7 and 8. Section 14 contains the provision that in the case of such an adoption (under Section 7) by a Hindu male, the living wife shall be deemed to be the adoptive mother and in the case of plurality of wives, the senior most shall be deemed to be the adoptive mother and the other wives to be step-mothers. Section 14 Sub-section (3) provides that if a widower or a bachelor adopts a child any wife whom he subsequently marries shall be deemed to be the stepmother of the adopted child. In the case of an adoption by a Hindu female there is no such corresponding provision for affiliation of the adopted child to the deceased husband. Section 14. Sub-section (4) only provides that If the woman marries a husband subsequent to the adoption, the latter shall be deemed to be the step-father of the adoptive child. A perusal of the provisions of Section 14 shows that the Legislature has deliberately provided for affiliation only in the limited manner provided in Sub-sections (1) to (4) and no other. It is quite clear that the absence of specific provision for the affiliation to the deceased husband of a child adopted by his widow is not an inadvertent omission but a deliberate departure abrogating this doctrine of affiliation under the customary law. Otherwise it is difficult to understand the qualified manner in which the deeming provisions in Section 14. Subsection (4) is worded; the affiliation referred to therein is only to the husband whom she may marry after the adoption. It cannot be that an express provision for an affiliation of the adopted boy to the deceased husband was not made, because the Legislature thought it was so obvious; for we find a specific provision in the case of an obvious affiliation arising as a result of an adoption by a male Hindu with the concurrence of his living wife. The reason is not far to seek. When the Hindu female takes a child in adoption under Section 8 none of the restrictions under customary law like caste, sex etc., apply. The conditions, by way of restrictions, that are imposed under Section 11 have nothing to do with the wishes or ideas of the deceased husband about an adoption. Before the Act came into force, the husband during his lifetime, could have completely prohibited the widow from making an adoption. One can visualise the husband having conferred the authority upon his widow to adopt a specific person or to adopt any person with the consent of a specific person or the husband might even have specified and restricted the period within which the widow should take the boy in adoption. In the case of plurality of widows, he could have conferred the power upon any one of the widows even preferring a junior widow. Under the customary law, if there is a violation of any one of these conditions, the adoption made by the widow would be void. But under the Act, the capacity of the widow to adopt is absolute and unqualified having no relation to the wishes of her deceased husband. His volitions in the matter which he might have manifested during his lifetime imposing a prohibition or a restriction in the matter of an adoption would have no controlling force on his widow, after his death. Take for instance a Hindu male, who was violently averse to an adoption, dying before the Act having expressly precluded his wife from taking a child in adoption. After the Act came into force the widow would be entitled to take a child in adoption under Section 8 ignoring this clear prohibition by her husband. It would be absurd to say that in such a situation there would nevertheless be an affiliation to the deceased husband deeming him to be the adoptive father. Take again, the case of a husband dying after the coming into force of the Act without taking a child in adoption, being totally averse to an adoption. Here too, after his death, his widow would be entitled to take a boy in adoption and if the rival view were accepted, the deceased husband would be the adoptive father of this child. There is nothing in this Act to warrant such an absurd result, on the other hand, the main scheme of Chapter II is, that the affiliation cannot be forced upon the other spouse unless the adoption takes place as a result of mutual agreement between both the spouses.
11. It Is also important to notice that all the 'deeming' provisions relating to affiliation in Section 14 are only in relation to living persons and not to persona who were dead at the time of the adoption. Section 14(1) refers only to the living wife who should be deemed to be the adoptive mother and it does not Include a wife who was dead at the time of the adoption; this shows the deceased wife is not to be regarded as the adoptive mother of the boy adopted. If in the case of a deceased wife there Is no such affiliation the position Is a fortiori in the case of a deceased father. Section 8 which confers the capacity upon a female Hindu to take a child in adoption is general in terms and a spinster, a divorced woman, a widow, a wife of an apostate or an ascetic are all clubbed together without any distinction. If a spinster takes a child in adoption It is obviously on her own behalf and to herself only. Equally, if a divorced woman takes s child in adoption it is on her own behalf and to herself only. Having regard to the context in which the provision is made for an adoption by a widow and from the collocation of the words used in Section 8, it is perfectly clear that the widow adopts only to herself and there is no warrant for holding that the Legislature envisaged different legal consequences where the 'Hindu female' under Section 8 happens to be a widow. I have said enough to show that reading Sections 8 and 14 together the widow has no capacity to make an adoption to the deceased husband and such an adoption will not therefore be in accordance with the provisions contained in Chapter II within the meaning of Section 5.
12. A reading of Section 11 also tends to the same inference. Under the customary Hindu Law. if a Hindu dies leaving a plurality of widows and if authority is given by the husband to one of them only, she alone can adopt and she can do so without even consulting the other widows. If the authority is given to the widows severally, the preferential right is to the senior widow and the junior widow will have no right to adopt unless the senior refuses to do so. Again a widow cannot adopt when a co widow has validly adopted and the adopted son is living. Vide Mullah's Hindu Law, 13th Edn. page 483. Section 455. Let us examine what would be the result of the theory of affiliation to the deceased is accepted. Under Section 8, the widows can act severally and every one of them can adopt a boy or a girl they need not do so simultaneously but are at liberty to take 9 child in adoption on different occasions and as and when they like. Section 11 contains the provision that if there is in existence a son or a daughter by adoption, the female Hindu cannot exercise the power of adoption. If one widow makes an adoption (under Section 8), according the rival view, the child will be an adopted son or daughter of a deceased husband as well as of the widow making the adoption. The consequence will be the other widow cannot under Section 11 take a boy in adoption for the reason that the deceased husband had already become an adoptive father of a child adopted by the other widow. There will be a race amongst the widow and any widow who first takes a child in adoption could easily defeat the rights of the other widows to adopt. Any such view would cut at the root of Section 8, which confers unqualified power upon all the widows irrespective of what any one of the widows may do in the matter. The theory of affiliation to the deceased spouse, on the assumption that this feature of customary law should be deemed to continue in force as unabrogated, would result not only In absurd and anamolous consequences, but would also render many of the important provisions of the Act useless and unworkable. I have no hesitation in holding that apart from the four specified classes of cases dealt with under Section 14, there is no further affiliation by fiction. In the face of Sections 4 and 5 it is impossible to read Into the Act any such Power of affiliation by necessary implication. Further, the rule of necessary implication cannot be invoked when it would be inconsistent with what is expressly declared in the statute itself, i.e., Sections 7, 8 and 14.
13. I may now take up for consideration Section 12 on which considerable reliance was placed in the Bench decision of the Bombay High Court referred to earlier, : AIR1966Bom174 . The portion relevant in the section may be extracted:
'Section 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 ............ (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption'.
The argument is that after the adoption, all the ties of the child in the family of its birth are severed and they are replaced in the adoptive family and that such a replacement is possible only if the child adopted becomes related to the deceased adoptive husband as well as the husband's collateral relations. In the Bombay decision it appears to have been conceded that the adoptive child would become collaterally related to the husband's collateral relations such as the husband's father, mother, brother etc. It also appears to have been conceded that the son adopted by the widow will become a coparcener with the other coparceners who had survived the deceased husband. This concession appears to be wrong, further it is not of much significance as the concession accepts the very point which arises for decision. Taking the language of the section itself, it has to be noted that the section does not state that all the ties of the child in the family of its birth are severed and they are replaced in the adoptive family. The replacement is not all ties lost in the natural family, but it is only those created by the adoption in the adoptive family. The question therefore arises what are the ties or rights which are created as a result of the adoption in the adoptive family and we are necessarily thrown back upon Sections 4, 5, 7, 8, 11 and 14. In other words, Section 12 by itself is not decisive and does not lead to the necessary conclusion that there is an affiliation to the deceased spouse. The argument that because an adoption had taken place somehow an adoptive father for the boy should be found cannot be accepted. In the Full Bench decision in Sivagami Achi v. Somasundaram Chettiar, : (1956)1MLJ441 , it was held that a widower by making an adoption cannot make his deceased wife even by fiction the mother of the deceased boy; that affiliation of an adopted son to his dead wife has never been in the contemplation of any of the authoritative text writers and that it is not a sound reasoning that a mother should somehow be found for the adopted boy. In the Full Bench judgment, after a reference to the authoritative texts, it was pointed out that by a widower's adoption, the adopted boy can have no maternal relations as nothing in a deceased wife survives in her husband, whereas the body of the husband survives in the wife and that the fiction of the adoptive mother based on a widower's adoption is a misnomer. Under the Act, an adoption by a male and a female are placed on the same footing and there is no scope for invoking the doctrine that the widow makes the adoption as the surviving half of the husband and on his representative. It is important to notice that Section 12 states that the adopted child shall be deemed to be the child of his 'or' her adoptive father. The word used is 'or' and not 'and'. Further the relationships are replaced only with effect from the date of the adoption and not retrospectively. If on an interpretation of Sections 5, 8, 11 and 14, the tie of an adoptive father based upon the theory of affiliation is not created, Section 12 does not improve the position. If a spinster or a divorced woman takes a boy in adoption under the Act, there is no question of somehow finding an adoptive father for the boy so adopted The boy so adopted would get collaterally related only to the relations of the woman who makes the adoption i.e., the spinster of the divorced wife as the case may be. The same consequence would follow in the case of an adoption by a widow since the avowed object of the legislation is to confer an independent status upon the woman and a right to adopt in her own right. I do not see any reason why, what applies to the case of a spinster or a divorced woman should not apply in the case of an adoption by a widow. In my view all the sections including Section 12 should be read together and it will be a wrong perspective of approach to take Section 12 alone divorced from its context in Chapter II, as though it provides for any overriding effect. It is only if the adopted child becomes related to the deceased husband (as adoptive father) that the adopted child would acquire collateral relationship with the husband's collateral relations. If the main affiliation by fiction to the husband does not exist, the other relationships do not arise at all.
14. No argument can be built upon a speculative theory that the son adopted would become a coparcener with the serving coparceners of the deceased husband. After the Hindu Succession Act came into force, on the death of the husband his share gets earmarked or demarcated and devolves upon the heirs under Section 6 of the Act which includes the wife, the sons and the daughters. The wife and the daughters do not become coparceners with the surviving coparceners of the deceased husband. The scheme of the Hindu Succession Act is that on the death of a member of the coparcenary, leaving the heirs specified in Class I of the schedule, there is a statutory division between the surviving coparceners and the deceased, at the moment of his death.
15. There is also another vital aspect to be taken into consideration and that is the proviso (c) to Section 12, which embodies the principle that as a result of the adoption, the child shall not divest any person of any estate which vested in him or her before the adoption. All this argument about the fiction of an affiliation to the deceased husband will have some meaning if as a result of the adoption, the adopted child becomes entitled to the estate of the deceased, the intermediate vesting between the death of the husband and the adoption being merely temporary. The theory of vesting and divesting has no place after the Act. The moment the husband dies, the widow and the other heirs, the daughters if any, would take the property under the Hindu Succession Act with absolute rights and the adoption made by the widow would not divest the estate vested on the widow and the daughters. It is impossible to conceive any purpose which this fiction of affiliation would serve when the secular aspect so completely pervades the whole Act. It is too much to argue that this fiction of affiliation to the deceased husband has been kept alive for the limited classes of cases in which the estate of the widow did not become absolute by reason of the widow not being in possession of the property within the meaning of Section 14 of the Hindu Succession Act.
16. For all these reasons, with greatrespect, I am not inclined to follow theBench decision of the Bombay HighCourt or the decision of the AllahabadHigh Court. The following statementin : AIR1967All148 with respect is not correct.
'In Madras even before the Act under the old Hindu Law a widow could adopt without the permission of her husband and the various authorities of the Madras High Court would show that such adopted son was always treated as the son of the husband of the widow. In my opinion, the same status should be given to the adopted son after the passing of the Act in other provinces as well.'
The Law in Madras has not been correctly set out. Further these observations overlook the important aspect that before the Act, if a widow took a boy in adoption it was as a surviving half ol her husband and as his representative a position which does not exist after the Act.
17. The result is, the decree and Judgment of the learned Subordinate Judgeare confirmed and the second appeal isdismissed with costs. No leave.