1. Dispute over property possession following a widow's adoption of a son and prior alienations of the deceased husband's estate under the Hindu Adoptions and Maintenance Act, 1956. (Para 1 , 2 )
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1967 Supreme(SC) 150
SUPREME COURT OF INDIA
K.N. WANCHOO, C.J.I., V. BHARGAVA AND G.K. MITTER, JJ.
Sawan Ram, Appellant
Versus
Mst. Kalawanti and others, Respondents.
Civil Appeal No. 728 of 1964,
D/19-4-1967. 1762
Advocates appeared
M/s. S. K. Mehta and K. L. Mehta, Advocates, for Appellants: Mr. A. D. Mathur, Advocate, for Respondents.
Advocates:
A.D.MATHUR, K.L.Mehta, S.K.MEHTA
A.D.MATHUR, K.L.Mehta, S.K.MEHTA
A child adopted by a Hindu widow is deemed to be the adopted son of her deceased husband and a member of his family, as the "adoptive family" for a married woman is that of her husband.
Headnote:(A) Hindu Adoptions and Maintenance Act, 1956 - Sections 5(1), 9(2), and 12 - Adoption by a widow - Status of adopted child - Whether adopted child is deemed son of deceased husband.
(B) Section 9(2) - Validity of adoption - Where the father of a child is alive, he alone has the right to give in adoption, subject to the consent of the mother - A recitation in a deed of adoption mentioning the mother's consent does not imply that the father did not give the child in adoption, especially where the deed explicitly states that the "parents" have given the child in adoption. (Para 3)
(C) Section 12 - Status of adopted child - An adopted child is deemed to be the child of the adoptive father or mother for all purposes - Since a married woman belongs to the family of her husband, a child adopted by a widow is deemed to be a member of the family of the deceased husband and is, in effect, the adopted son of the deceased husband. (Paras 7, 8)
(D) Section 12 Proviso (c) - Divesting of estate - The provision that an adopted child shall not divest any person of any estate vested in him or her before the adoption restricts the rights of the adoptee compared to a natural-born child but does not negate the legal fiction that the child is the adopted son of the deceased husband. (Para 9)
Facts of the case:
A widow of a deceased property owner adopted a son. A collateral relative of the deceased husband challenged the adoption and sought possession of the husband's properties, contending that the adopted son was only the son of the widow and not the deceased husband, and therefore could not succeed to the husband's estate. The relative also challenged the validity of the adoption on the grounds that it was given by the mother and not the father.
Findings of Court:
The adoption was held valid as evidence showed it was performed by both parents. The court found that the adopted son of a widow is deemed to be the son of the deceased husband and a member of his family.
Issues: Whether the adoption was invalid under Section 9(2) of the Hindu Adoptions and Maintenance Act, 1956, and whether a child adopted by a widow is also the adopted son of her deceased husband.
Ratio Decidendi: The phrase "adoption... to a Hindu" in Section 5(1) implies that a child can be adopted to a person other than the actual adopter, such as a deceased husband. Under Section 12, the child's ties in the birth family are replaced by those in the "adoptive family," which for a married woman is her husband's family. The limitation in Section 12 Proviso (c) regarding vested estates restricts the adoptee's ability to divest others of property but does not alter the legal status of the child as the son of the deceased husband.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Validity of adoption where father is alive — whether a son adopted by a widow becomes the adopted son of the deceased husband under the Hindu Adoptions and Maintenance Act. (Para 4 )
3. Adoption is valid if both parents consent — a child adopted by a widow becomes a member of the husband's family and thus the son of the deceased husband. (Para 3 , 7 , 8 )
4. Under the Hindu Adoptions and Maintenance Act, a child adopted by a widow is deemed the adopted son of her deceased husband and a member of his family. (Para 7 , 8 )
5. Appeal dismissed with costs. (Para 10 )
6. Is an adoption valid if the father is alive but the deed emphasizes the mother's consent?
Yes, provided both parents give the child in adoption. Mention of the mother's consent in the deed is often to comply with Section 9(2) of the Hindu Adoptions and Maintenance Act, 1956, and does not imply the father did not give the child. (Para 3 )
7. Does a child adopted by a Hindu widow become the adopted son of the deceased husband?
Yes. Under the Hindu Adoptions and Maintenance Act, adoption to a Hindu includes cases where a widow adopts; the child becomes a member of the adoptive family, which, for a married woman, is her husband's family. (Para 7 , 8 )
8. Can a child adopted by a widow divest another person of an estate that vested in them prior to the adoption?
No. Section 12, clause (c) of the Hindu Adoptions and Maintenance Act explicitly provides that an adopted child shall not divest any person of any estate which vested in them before the adoption. (Para 9 )
Judgment
BHARGAVA, J. : One Ramji Dass died leaving behind a widow, Smt. Bhagwani. At the time of his death, he owned some land and a house. 4 bighas and 17 biswas of the land were mortgaged by Smt. Bhagwani on 2nd May, 1948 in favour of respondent No. 3, Babu Ram. Later, on 22nd August 1949, she executed a deed of gift in respect of the house and the land covering an area of 50 bighas and 14 biswas in favour of Smt. Kala wanti who was related to her as a grand-niece. Sawan Ram appellant instituted a suit for a declaration that both these alienation were without legal necessity and were not binding on him claiming that he was the nearest reversioner of Ramji Dass, being his collateral. In that suit, Smt. Bhagwani the donee, Smt. Kala Wanti, respondent No. 1, and the mortgagee, Babu Ram, respondent No. 3, were impleaded as defendants. That suit was decreed and Smt. Bhagwani went up in appeal to the High Court. During the pendency of the appeal, Smt. Bhagwani adopted respondent No. 2. Deep Chand, the son of Brahmanand and his wife, respondent No. 1. Smt. Kala Wanti. A deed of adoption was executed by her in that respect on 24th August 1959. The appeal was dismissed in spite of this adoption.
2. Smt.. Bhagwani died on S1st October 1959, and thereupon, the appellant brought a suit for possession of the house and the land which had been gifted by Smt. Bhagwani to respondent No. 1 as well as for possession of the land which she had mortgaged with respondent No. 3. It was claimed that Smt. Bhagwani had only a life interest in all these properties, because she had divested herself of all the rights in those properties on 22nd August 1949, before the Hindu Succession Act, 1956 (No. 30 of 1956) came into force. The adoption of Deep Chand was also challenged as fictitious and ineffective. It was further urged that even if that adoption was valid Deep Chand became the adopted son of Smt. Bhagwani and could not succeed to the properties of Ramji Dass. The suit was dismissed by the trial Court, holding that the adoption of Deep Chand was valid and that, though Smt. Bhagwani had not become the full owner of the property under the Hindu Succession Act, 1956, Deep Chand was entitled to succeed to the property of Ramji Dass in preference to the appellant, so that the appellant could not claim possession of these properties. That order was upheld by the High Court of Punjab, and the appellant has now come up to this Court in appeal by special leave.
(2A). In this appeal before us, only two points have been urged by learned counsel for the appellant. The first point taken is that, even though the appellant did not challenge the finding of fact that respondent No. 2 was, in fact, adopted by Smt. Bhagwani, that adoption was invalid under Cl. (ii) of S. 6 read with sub-s. (2) of S. 9 of the Hindu Adoptions and Maintenance Act, 1956 (No. 78 of 1956 (hereinafter referred to as "the Act"). It is urged that, under S. 9 (2) of the Act, if the father of a child is alive, he alone has the right to give in adoption, though the right is not to be exercised, save with the consent of the mother. In this case, reliance was placed on the language of the deed of adoption, dated 24th August 1959, to urge that Deep Chand was in fact, given in adoption to Smt. Bhagwani by his mother, respondent No. 1, even though his father, Brahmanand, was alive.
3. This point raised on behalf of the appellant is negatived by the evidence on the record. There is oral evidence of the adoption which has been accepted by the lower Courts, and it shows that Deep Chand was given in adoption by both the parents to Smt. Bhagwani. Even the deed of adoption, dated 24th August 1959, on which reliance was placed on behalf of the appellant in support of this argument, does not bear out the suggestion that Deep Chand was given in adoption by his mother and not by his father. The deed clearly mentions that "the parents of Deep Chand have, of their own free will, given Deep Chand to me, the executant
