IMPORTANT POINT
Defendant No. 6 having been adopted after the death of sole surviving co-parcener and after the properties vested in his heirs, is not entitled for share in the suit properties by virtue of Section 12(c) of Hindu Adoption and Maintenance Act, 1956.

Headnote:Hindu Adoption and Maintenance Act, 1956-Section 12(c)-Effect of adoption-Restriction on right of adopted son-Interest vesting in sole surviving co-parcener-Adoption made subsequent to death of sole surviving co-parcener-Whether adoption of defendant No. 6, after the death of sole surviving co-parcener, makes any difference in determining the rights of adopted son in relation to the family properties?-Appeal allowed reversing Courts below-Case law discussed.
       Held : From the facts in Dharma s case it is clear that adoption of Pandurang took place during the lifetime of Dharma and as such Pandurang became member of coparcenary to claim the share. In the present case with which we are concerned now, it is not disputed that adoption of Dattatraya took place after the death of Vyankat, the sole surviving coparcener. In our view this makes all the difference for the reasons to be stated hereinafter. (Paras 13 and 14)
       Held on Section 12 : It is plain and clear that an adopted child shall be deemed to be the child of his or her adopted father or mother for all purposes with effect from the date of adoption as is evident from the main part of Section 12. Proviso (c) to Section 12 in clear terms states that the adopted child shall not divest any person of any estate, which vested in him or her before the adoption. (Para 17)
       This being the legal position defendant No. 6, having been adopted after the death of Vyankat and after the properties vested in his heirs, is not entitled for share in the suit properties. In this view the impugned judgment and decree of the High Court affirming the decrees of both the courts below cannot be upheld. Consequently and necessarily they are set aside and the suit of the plaintiffs-appellants stands decreed. The appeal is allowed accordingly. Parties shall bear their own costs. (Paras 23 and 24)

JUDGMENT

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

BALI

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Vyankat (Died on Anand Rao 8-2-1978) (Died in 1930)

Widow Krishnabai (Defendant No. 2) (Died in April 1980) #Allegedly adopted *Dattatraya on 10-6-78

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Peti No. 1 Peti No. 2 Resp. No. 1 Sarda Leelavati Bhagirithi (Plaintiff (Plaintiff (Defendant (Defendant (Defendant (Defendant No. 1) No. 2) No. 1) No. 3) No.4) No. 5)

Namdev Laxman Ganpa #daughter s son *Dattatraya adopted by Krishnabai (Defendant No. 6)

2. Bali had two sons, namely Vyankat and Anand Rao. Anand Rao died on 6-7-1930 in joint family. The defendant No. 2 was the wife of Anand Rao. After death of Anand Rao, Vyankat became absolute owner of the suit property. The share of Anand Rao in suit property merged and the defendant No.2 had only right of maintenance being a widow in the joint family of plaintiffs and defendant no. 1. Plaintiffs and defendant No. 1 are sons of said Vyankat and defendants 3 to 5 are the daughters of said Vyankat. Defendant No. 6 is the adopted son of defendant No. 2. After death of Anand Rao, maintenance was used to be given to defendant No. 2. On 8.2.1978, Vyankat also died and thereafter defendant No. 1 in collusion with the defendant No. 2 got the name of defendant No. 2 mutated in records showing half share in the suit property and got half share mutated in his name in the suit properties being the Karta of the family. It is the further case of the plaintiffs that as per Hindu law, defendant No. 2 had no right over the suit property, the plaintiffs filed complaint about the said mutation entry; however, the defendant No. 1 with the help of defendant No. 2 obstructed their possession over the suit property. Hence, the plaintiffs filed a suit for partition of their shares in the suit property collectively claiming that they had 7/12th share, defendant No. 1 having 7/24th and defendant Nos. 3 to 5 each having 1/8th share in the suit property and that defendant No. 2 had only right to maintenance. During the pendency of the suit, defendant no. 2 also died and plaintiffs and defendants 1, 3 to 5 are her legal heirs. It was also the case of the plaintiffs that defendant No. 2 had not taken defendant No. 6 in adoption. The defendant No. 1 in collusion with defendant No. 2 set up the adoption of defendant

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Judicial Analysis

SupremeToday

2003 Supreme(SC) 229

IMPORTANT POINTDefendant No. 6 having been adopted after the death of sole surviving co-parcener and after the properties vested in his heirs, is not entitled for share in the suit properties by virtue of Section 12(c) of Hindu Adoption and Maintenance Act, 1956.

Cases Referred (3)

Judicial Analysis

IMPORTANT POINT
Defendant No. 6 having been adopted after the death of sole surviving co-parcener and after the properties vested in his heirs, is not entitled for share in the suit properties by virtue of Section 12(c) of Hindu Adoption and Maintenance Act, 1956.