IMPORTANT POINT
Section 17 of Hindu Adoption and Maintenance Act is enacted to prevent trafficking of children and is not intended to cover a case where a major person agrees not to set up any claim with regard to certain properties belonging to adoptive family.

Headnote:Hindu Adoption and Maintenance Act, 1956-Section 17-Validity of an ante-adoption agreement entered into prior to adoption between to be adopted son-plaintiff-appellant and would be adoptive father-Agreement dated 14th March, 1962 was executed when appellant was a major-Plaintiff by the document agreed not to advance any claim in respect of properties shown in the Schedule to the agreement-Courts below found that agreement was valid and not hit by Section 17 of the Act-Appeal-Section 17 was enacted to prevent trafficking of children and was not intended where a major person agreed not to set up any claim in certain properties belonging to adoptive family-Such agreement was not prohibited by Section 17 of the Act.
       Held : Section 17 of the Act has been enacted with a view to prevent trafficking of children. The contravention of sub-section (1) is punishable with imprisonment which may extend to six months or fine or both as provided for in sub-section (2) of Section 17. The question is whether the agreement Exhibit B-16 comes within the purview of Section 17(1) of the Act. The recital in Exhibit B-16 does not show any payment was either made or agreed to be made by the appellant/plaintiff to the first defendant. It cannot be construed as an agreement whereby any payment was made or agreed to be made by the appellant/plaintiff to defendant No.1. It also seems difficult to construe this agreement whereby the plaintiff gave or agreed to give to his adoptive father any other reward . The plaintiff before adoption had no interest of any kind in the properties, subject matter of Exhibit B-16. As earlier noticed, various properties had been settled prior to Exhibit B-16 in favour of the plaintiff and the girl with whom he had to marry and which marriage ultimately took place on the date of adoption. In our view, Section 17 enacted to prevent trafficking of children is not intended to cover cases of the present nature where a major person agrees not to set up any claim with regard to certain items belonging to the adoptive family. Section 17 cannot be held to have an overriding effect so as to change the legal proposition prevalent prior to the commencement of the Act. Section 17, under the circumstances, has no applicability. (Para 8)
       Further held : In the present case there is no question of adoptive father giving any payment or reward to the plaintiff as a consideration for the adoption. As already noticed, there was no question of any payment or agreement to make payment by plaintiff to his would be adoptive father. Regarding giving of reward by plaintiff or agreement to give any reward to his would be adoptive father for consideration of adoption, that question would arise only if the plaintiff had any right in the properties. Prior to adoption plaintiff had no such right and, therefore, the question of his giving anything to defendant No.1 does not arise. On facts earlier noticed, the plaintiff was being fostered by adoptive father and his wife for five years prior to adoption. The wife of adoptive father had transferred various properties in favour of the plaintiff about five years earlier to adoption. At the same time she had also settled certain properties in favour of the girl with whom the plaintiff was to marry and in fact married. By agreement Exhibit B-16, the appellant/plaintiff agreed not to claim any interest in some of the properties of his adoptive father. It did not cover all the properties of defendant No.1. Such an agreement is not prohibited by Section 17. Under the circumstances of the case, there was no question of any trafficking in children. Section 17 does not prohibit every kind of agreement between a major adopts and the would be adoptive father. Exhibit B-16 does not suffer from the vice of Section 17 of the Act. (Para 12)

JUDGMENT

Y.K. Sabharwal, J.-The question for determination in these appeals is about the validity of an ante-adoption agreement entered into prior to adoption between to be adopted son and the would be adoptive father after coming into force of the Hindu Adoption and Maintenance Act, 1956 (for short the Act ).

2. The question has arisen in a suit instituted by the appellant for partition in respect of properties mentioned in the Schedule to the ante- adoption agreement. Defendant No.1 is the adoptive father of the appellant and defendant No.2 is a forma/party being son of the appellant supporting his father. The appellant, in May, 1957, was brought by defendant No.1 and his wife to their house from the house of his natural parents. Since then, he was brought up by defendant No.1 and his wife. The wife of defendant No.1 also brought up her niece. Undisputedly, the ante-adoption agreement (Exhibit B-16) dated 14th March, 1962 entered into between the appellant (plaintiff) and defendant No.1 was executed when the appellant was a major. The execution and genuineness of Exhibit B-16 is not under challenge. The challenge is about the validity of Exhibit B-16 on the ground that it is hit by Section 17(1) of the Act. The concurrent findings of fact that have not been challenged are that the appellant was adopted by defendant No.1 and his wife in the morning hours on 24th March, 1962; On the same date, in the evening marriage between the appellant and niece of wife of defendant No. 1 took place.

3. The suit instituted by the plaintiff was dismissed by the trial court. The judgment and decree of the trial court has been upheld by the High Court in the first appeal. Exhibit B-16 has been held to be valid and not hit by Section 17 of the Act. In these appeals, challenging the impugned judgment of the High Court, the only point canvassed by Mr. Sunil Gupta, senior advocate for the appellant, is about Exhibit B-16, being invalid in view of prohibition contained in Section 17 of the Act. To consider this question, we would assume as correct the conclusion of the High Court that the appellant on adoption on 24th March, 1962 became a coparcener and the first defendant ceased to be a sole surviving coparcener. Learned counsel for the respondents has not raised the invalidity of adoption under clause (iv) of Section 10 of the Act on the ground that the appellant was more than 15 years of age. Finding of the High Court on the said aspect is that in view of the custom in the Vaish community to which the parties belong adoption after the age of 15 years is permissible. This finding is also not under challenge.

4. Prior to enforcement of the Act, Section 500 of Principles of Hindu Law stipulated that where the adopted son was a major at the time of the adoption, he may by an agreement with the adoptive father or the adopting widow made before the adoption, consent to a limitation of his rights in the property of his adoptive father. The settled law before the commencement of the Act was that when a person of full age at the time of adoption agrees or assents to the condition under agreement entered into with the adoptive father limiting his right in the properties of the adoptive father, such agreement was legal and binding on the adoptive son {see Kashibai Ramchandra Ghatge v. Tatya Genu Pawar & Ors. [AIR 1916 Bom. 312]; Pandurang Sakharam Thakur v. Narmadabai Ramkrishna Keluskar [AIR 1932 Bom. 571]; and Kanduru Venkata Somaiah v. Kanduru Ramasubbamma [AIR 1984 Andhra Pradesh 313}.

5. Learned counsel for the appellant has, fairly and rightly, not disputed the legal proposition that prior to the enforcement of the Act, it was permissible in law to enter into an ante-adoption agreement. Mr. Gupta, however, strenuously contends that after the enforcement of the Act, such an agreement is clearly hit by Section 17 and, therefore, the legal position prevailing prior to the enforcement of the Act is of no relevance. The question, therefore, is whether the

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Judicial Analysis

SupremeToday

2003 Supreme(SC) 935

IMPORTANT POINTSection 17 of Hindu Adoption and Maintenance Act is enacted to prevent trafficking of children and is not intended to cover a case where a major person agrees not to set up any claim with regard to certain properties belonging to adoptive family.

Judicial Analysis

IMPORTANT POINT
Section 17 of Hindu Adoption and Maintenance Act is enacted to prevent trafficking of children and is not intended to cover a case where a major person agrees not to set up any claim with regard to certain properties belonging to adoptive family.