1. This appeal on behalf of the first defendant has arisen out of a proceeding in O.S. No. 115 of 1977 of the Court of the Subordinate Judge, Nagercoil for declaration of the plaintiffs title and for recovery of possession of the suit property and other reliefs. The suit property originally belonged to one Andiappa Chettiar. He had two daughters Valliammal and Umayaparvathi. The plaintiff is the son of Valliammal, Umayaparvathi's husband Jeevarathinam Chettiar had two wives. The first wife is Umaayaparvathi and the second wife is Iyyin Pillai. The first defendant (appellant) is the son of the second defendant and the second defendant is the son through the abovesaid Iyyin Pillai, the second wife. Andiappa Chettiar executed a Will under which, on his demise, Umayaparvathy got a life estate over the suit property and the vested remainder was left with the plaintiff and his brother Rengaswami, who predeceased him. Umayaparvathi, adopted the first defendant as her son and executed a Will with regard to the suit property in his favour.
2. According to the plaintiff Umayaparvathi was not competent to adopt a son after the death of her husband since her husband Jeevarathinam had another wife Valliammal and through him, sons including the plaintiff. She also had no right except the limited estate that had been given to her in the property to execute a Will. The first defendant, however pleaded that Umayaparvathi validly adopted hint by observing all formalities and she was perfectly competent to bequeath the suit property in favour of her adopted son, the first defendant for her life interest got enlarged into an absolute estate.
3. The trial court found that on the date of death of Andiappa Chettiar, the succession opened and Umayaparvathi got only a life interest and as she had got only a life interest since she had no children the contingent interest was enlarged into a vested remainder to Valliammal's heirs; that as Umayaparvathi had got only a life interest she cannot make a bequest by conveying absolute interest in favour of the first defendant and that the adoption of the first defendant by Umayaparvathy was invalid in law and the plaintiff is entitled to the suit property on the death of Umayaparvathi and the first defendant, the alleged adopted son did not derive any interest over the suit property on the basis of the Will executed by Andiappa Chettiar.
4. In the appeal, A.S. No. 804 of 1979, that was brought to this Court, it was contended that the legacy bequeathed in favour of Valliammal's heirs being contingent on Umayaparvathi having no children and the bequest to the legatee being a contingent interest contingent on Umayaparvathi dying without children succession to the heirs of Valliammal would open only when Umayaparvathi died without children and that even if the bequest to unborn children of Umayaparvathi was void, the provisions of the Hindu Succession Act would apply and the first defendant being the adopted son of Umayaparvathi was entitled to a half share in the suit property. The learned Judge has, however, found on both counts against the first defendant/appellant.
5. The findings aforementioned, however, are assailed before us by learned Counsel for the appellant for the reason inter alia that the court below has fallen in error in not appreciating the role that the provisions in the Hindu Adoptions and Maintenance Act, 1956, introduced in the field of law of adoption and the fact that once adoption is found valid as a consequence thereof, the first defendant would be entitled to a share in the property along with the plaintiff.
6. Since no serious arguments have been advanced, before us with respect to the finding that the bequest made under Ex.A-1 in favour of the children of Umayaparvathi is void we do not enter into any discussion in this behalf. We do not also advert to the question as to whether the Will which Umayaparvathi executed could not confer absolute interest in favour of the first defendant as parties appeared to take the position that in case it is found that Umayaparvathi had validly adopted the first defendant, the plaintiff and defendants would share the properties in equal moieties.
7. The origin of the custom of adoption is lost in antiquity. It has been recognised for the reasons of sashtric belief that a male child alone would discharge, the spiritual debts and unless there is a son the spiritual welfare of the soul is in jeopardy. Texts recognize that a male Hindu could adopt a son for himself and his wife not only without consulting his wife but even in spite of her opposition but a wife could not adopt a soil without being authorised by her husband. An Act to amend and codify the law relating to adoptions and maintenance among Hindus known as the Hindu Adoptions and Maintenance Act, 1956, hereinafter referred to as 'the Act' brought about some revolutionary changes in the known law of adoption. The Chapter of the Act dealing with 'Adoption' in Section 5 thereof states that no adoption shall be made after the commencement of the Act by or to a Hindu except in accordance with the provisions contained in the Chapter (viz. Chapter II) and any adoption made in contravention of the said provisions shall be void. After stating about the requisites of a valid adoption and saying that in a valid adoption the person adopted not only has the capacity but also the right to take in adoption; the Act had recognised the capacity of a male Hindu to take in adoption but added that if he has a wife living he shall not adopt 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 of unsound mind. The Act a# in Section 8, however, recognizes the capacity of a female Hindu to take in adoption stating as follows:
8. Capacity, of a female Hindu to take in adoption: Any female Hindu-
(a) who is of sound mind,
(b) who is not a minor, and
(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or 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, has the capacity to take a son or daughter in adoption.
After providing as to persons capable of giving in adoption and persons who may be adopted, the Act has enumerated under Section 11 other conditions of a valid adoption. It reads as follows: 'In every adoption, the following conditions must be complied with:
(i) If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption....
(ii) If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female the adoptive father is atleast twenty-one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is atleast twenty-one years older than the person to be adopted; (v) the same child may not be adopted simultaneously by two or more persons; (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption; Provided that the performance of Datta Homam shall not be essential to the validity of an adoption.
Marked departures from the Shastric Law, however, have not completely removed control upon the power of the adoptive father or mother. The general conditions in Section 11 for a valid adoption are besides the conditions, which are enumerated in the provisions preceding that section. Section 12 which precede the general conditions of adoption, however, states what are the effects of adoption in these words:
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;
(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.
The circumstances in which Umayaparvathy came to adopt the first defendant are not in dispute. Umayaparvathy is the first wife of hers husband Jeevarathinam Chettiar. Through his second wife, Jeevarathinam had a son, the second defendant. The first defendant, the adopted son of Umayaparvathy, is the second defendant's natural son. The learned single Judge has come to the conclusion that though the adoption is by the widow Umayaparvathy, the adopted son became a member of the widow's family with the ties of relation-ship with the deceased husband of the widow as his adoptive father, but, has in the same breath, stated,
This being the effect of adoption, a widow cannot adopt a son if her husband has already a natural son through her or through another wife. To test the validity of an adoption, we have not only to see whether the conditions laid down under Section 11 for a valid adoption are complied with but also to see whether the effect of adoption, as provided under Section 12 in any way infringes the conditions imposed under Section 11. Thus, Sections 11 and 12 are interlinked and interconnected and Section 11 cannot be read in isolation as sought to be made out by the learned Counsel for the appellant. Both Sections 11 and 12 have to be read together and if the effect of adoption is such that it infringes the conditions laid down under Section 11, the adoption has to be held invalid. In the present case, the effect of adoption is that the adopted son by the widow is son, not only to her but also to her husband and as the husband has already a natural son in existence through his second wife, the adoption made by the widow infringes the condition laid down under Seal 1(1) of the Act and consequently, the adoption has to be held as void.
We have seen above that this Act has particularly introduced a provision in Section 8 about the capacity of a female Hindu to take in adoption a son or a daughter. This section states that any female of sound mind, not a minor and who is not married, or if married, whose marriage has been dissolved or whose husband is dead or 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 as the capacity to take a son or daughter in adoption. Thus, a widow or a divorced wife has been given the capacity to take a son or daughter in adoption. Can this power to adopt be restricted if there is a child born to the husband of a divorced wife, who married another woman, after divorcing her and can a widow be denied the capacity to adopt a child on the ground that her husband had a child through another wife? Learned single Judge has, on the basis of the principles that appeared to merge from the effect of adoption, as stated in Section 12 of the Act, taken the view that a widow whose husband had a son by another woman, cannot adopt. In effect, thus a divorced wife will have no capacity to adopt a son to herself, if her husband remarried and got a child by the second wife. We shall dilate a little further into it, but before we do so, we may have taken notice of the definition of the word 'agnate' in Section 3 of the Hindu Succession Act, 1956, which says, one person is said to be an agnate of another if the two are related by blood or adoption wholly through males and the definition of cognate', which says, one person, is said to be a 'cognate' of another if the two are related by blood or adoption but not wholly through males. The word 'related' has been defined in this section of the Hindu Succession Act to mean related by legitimate kinship and provided that illegitimate child shall be deemed to be related to their mother and to one another and their legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly. It is unnecessary to say that sons are class I heirs, both of a male Hindu as well as a female Hindu. But, the Hindu Succession Act, in Section 9 says, those in class I shall take simultaneously and to the exclusions of all other heirs and Section 10 says, the property of an intestate shall be divided among the heirs in class I of the schedule in accordance with the following rules-
Rule 1: The intestate's widow or if there are more widows than one, all the widows together, shall take one share.
Rule 2: The surviving sons and daughters and the mother of the intestate shall each take one share;
Rule 3: The heirs in the branch of each predeceased daughter of the intestate shall take between them one share and the distribution of the share referred to in the last rule shall be one among the heirs in the branch of the predeceased son, widow or widows together and the surviving sons and daughters equal portions and the branch of predeceased sons the same portion and among the heirs in the branch of the predeceased daughter, the surviving sons and daughters in equal portions. We have proceeded in this case on the footing, since it has been conceded that there would be no use contesting that Umayaparvathy had a limited interest or that she had enlarged her interest in the property because in any case the validity of the adoption alone shall permit the first-defendant to inherit as the son of Umayaparvathy any share in the estate of the family of Andiappa Chettiar. It has not been contested seriously before us that in case adoption is found valid, the second defendant, as the son of Umayaparvathy shall be entitled to half of the estate and the remaining half will go to the child of Valliammal. A learned single Judge of this Court in Arumugha Udayar v. Valliammal : AIR1969Mad72 , has taken the view that a son adopted by the widow does not become adopted of deceased husband conferring upon him rights of inheritance to the estate of the deceased husband. He, in his detailed study of the law on the subject, found a provision in Section 14 of the Adoption Act of some help, which says, where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother and where an adoption has been made with the consent of more than one wife, the senior-most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers. Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child, and where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child. The Supreme Court, however, in the case of Sawan Ram v. Kalwanti : 3SCR687 , commenting upon a similar view expressed in a judgment of the Andhra Pradesh High Court in Hanumantha Rao v. Hanumayya I.L.R 1966 A.P. 140, wherein the Andhra Pradesh High Court has observed:The Act has made a notable departure from the previous law in allowing a widow to adopt a son or daughter to herself in her own right. Under the Act, there is no question of the adopted child divesting of any property vested in any person or even in herself. The provisions of Section 13 make this position clear, by providing that 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...On a fair interpretation of the provisions of Section 12 of the Act, we are of the opinion that the section has the effect of abrogating ordinary rule of Mitakshara Law that, as a result of the adoption made by the widow, the adoptee acquires rights to the share of his deceased adoptive father which has passed by survivorship to his father's brothers.
The Supreme Court has said,
We are unable to accept this interpretation of the provisions of the Act by the Andhra Pradesh High Court as it appears to us that the High Court ignored two important provisions of the Act and did not consider their effect when arriving at its decision. The first provision, which is of great significance, is contained in Section 5(1) of the Act, which lays down:No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter and any adoption made in contravention of the said provisions shall be void'. It is significant that, in this section, the adoption to be made is mentioned as 'by order to a Hindu'. Thus, adoption is envisaged as being of two kinds. One is adoption by a Hindu and the other is adoption to a Hindu. If the view canvassed on behalf of the appellant be accepted, the consequence will be that there will be only adoptions by Hindu and not to Hindus. On the face of it, adoption to a Hindu was intended to cover cases where an adoption is by one person, while the child adopted becomes the adopted son of another person also. It is only in such a case that it can be said that the adoption has been made to that other person. The most common instance will naturally Be that of adoption by a female Hindu, who is married and whose husband is dead, or has completely and finally renounced the world, or has been declared by a court of competent jurisdiction to be of unsound mind. In such a case, the actual adoption would be by the female Hindu, while the adoption will be not only to herself, but also to her husband who is dead, or has completely and finally renounced the world or has been declared to be of unsound mind. The second provision, which was ignored by the Andhra Pradesh High Court is one contained in Section 12 itself. 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 which 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 or will, in effect, be the adopted son of her husband also. This aspect was ignored by the Andhra Pradesh High Court when dealing with the effect of the language used in other parts of this section.
The Supreme Court again in the case of Sitabai v. Ramchandra : 2SCR1 , adverted to this aspect of the law and in this judgment has said as follows:
It is clear on a reading of the main part of Section 12 and Sub-section (VI) of Section 11 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 ties 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 result is, as mentioned in Section 11 (4) namely where a wife is living, adoption by the husband results in the adoption of the child by both these spouses; the child is not only the child of the adoptive father, but also of the adoptive mother. In case of there being two wives, the child becomes the adoptive child of the senior-most wife in marriage, the junior wife becoming the step-mother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption his wife becomes the stepmother of the adopted child, when a widow or an unmarried woman adopts a child, any husband she marries subsequent to adoption ' becomes the step-father of the adopted child. 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 other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husband's brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son and in this way, the adopted son would become a member of the widow's family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that Section 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But, it is a necessary implication of Sections 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in Sub-section (4) of Section 14, a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the 'stepfather' of the adopted child. The true effect and interpretation of Sections 11 and 12 of Act No. 78 of 1956 therefore is that when either of the spouse 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 child of both the spouses. This view is borne out by the decision of the Bombay High Court In Ankush Narayan v. Janabai Rama Sawat : AIR1966Bom174 . It follows that in the present case, plaintiff No. 2 Suresh Chandra, when he was adopted by Bhagirath's widow, became the adopted son of both the widow and her deceased husband Bhagirath and, therefore, became a coparcener with Dulichand in the joint family properties. After the death of Dulichand, plaintiff No. 2 became the sole surviving coparcener and was entitled to the possession of all joint family properties. The Additional District Judge was, therefore, right in granting a decree in favour of the plaintiff No. 2 declaring his title to the agricultural lands in the village Palasia and half share of the house situated in the village.
The Supreme Court reiterated this view in the case of G. Hanumantha v. Nagappa : 3SCR200 . A Bench of the Karnataka High Court in Babu Nanjappa v. Arunkumar : AIR1988Kant139 , has after taking notice of all relevant authorities on the subject found, on the set of facts that were in the case, that if adoption, after the adoption Act came into force, is found valid, then the question that the adopted son was not born to his father would not be relevant for entitling the adopted child to claim a share in the family property as a coparcener.
8. The principles of law aforestated lead us to split the questions as to validity of adoption and the right of the adopted child in the estate of the husband of the widow, who adopted him, for the validity of the adoption has absolutely no correlation with the right of the adopted child in the estate of the husband of the adoptive mother. The question that is posed before us, however, is slightly different from what has been decided by the Supreme Court or other courts. No case law has been brought to our notice in which a woman, whose husband has died, and who does not have a child of her own, was not found capable to adopt on the ground that her co-widow had a child of her husband.
9. There is a strong reason for accepting the right of a widow to adopt a son or daughter for herself even though there may be a child to her co-widow through her husband for the reason of the concept of the full blood, half blood and uterine blood relationship that have been one of the vital postulates of the rule of inheritance when two persons stand together to inherit a certain property. Two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives and two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands. (See : Section 3(1)(c) of the Hindu Succession Act). Section 18 of the Hindu Succession Act says:
Full blood preferred to half blood. Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.
A son of the co-widow is the step-son to a Hindu widow and it is difficult in the case of inheritance of the properties exclusively belonging to her going to the step-son in the same moiety as if he is equal to her son when the devolution as contemplated under Section 15 of the Hindu Succession Act is confined to the sons and daughters including the children or predeceased son or daughter and the husband and consequently upon the basis of the husband. Chapter II of the Hindu Adoptions and Maintenance Act, 1956, which reulates adoptions by a male or female Hindu does not in any way inhibit a Hindu female who is not married and if married whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been so declared by a court of competent jurisdiction, from adopting a child either male or female if her husband has left a child through another wife. If such inhibition has to be found then, courts will have to read in Section 8 of the Hindu Adoptions and Maintenance Act, 1956, additional words that only such female Hindu whose husband is dead and has not left a child through another wife can alone adopt. That will be, in our opinion, a violation of the provisions in Sections 8 and 11 of the Act. The conditions in Section 11 leave no room to doubt that in the case of the adoptive father he should not have a son, son's son or son's, son's son(whether by legitimate blood relationship or by adoption) living at the time of adoption and in the case of the adoptive mother she should not have a son, son's son or son's son's son (whether by legitimate blood relationship or by adoption). The right given to the adoptive mother is independent of the right given to the adoptive father. This right she can exercise not on the basis of the existence of a son to her husband but a son to herself. A son to a co-widow may be a step-son to her but cannot be accepted as a son for the purpose of adoption.
10. Once this question of the right of the widow who adopts a son to herself is answered then the question as to the effect of the adoption would start. As the effect of the adoption the child will not only become entitled to inherit the properties exclusively belonging to his/her father but also get all such rights that would accrue to a son to the adoptive mother because such a son enters into the coparcenery as found by the Supreme Court in the case of a joint family as also otherwise entitled to intestate succession to the estate of her mother's husband who becomes the fictional or legal father.
11. There has been some argument before us that the impugned property exclusively belonged to Umayaparvathi as it had been donated to her by her father and thus it has to devolve upon her adopted son in accordance with the rule of succession. We have quite a few reservations however to this for the reasons that the Will under which Valliammal and Umayaparvathi got the properties in equal moiety does not appear to vest any property alone in her and there had been a time when she alone held the property it was on account of the death of Valliammal who predeceased her.
12. We, therefore, do not propose to accept the above contention. Since we have, however, held that no invalidity in the adoption of the first defendant by Umayaparvathi and we have also found that as a consequence of the adoption the first defendant would become entitled to inherit any property that vested in her mother, we find that the first defendant is entitled to take the share of Umayaparvathi in the estate jointly held by Valliammal and Umayaparvathi. As a result of this finding we hold that the first defendant would be entitled to a share equally with the plaintiff. The appeal is accordingly allowed to the extent indicated above. The decree shall be drawn accordingly. No costs.