IMPORTANT POINT
In Hindu Succession Act, 1956 no distinction is made between son born to a father prior or after adoption of his father and no provision bars natural born son to inherit property of his natural father.

JUDGMENT :

HEMANT GUPTA, J.

1. The present appeals arise out of an order passed by the learned Single Bench of the High Court of Judicature at Bombay on 11th December, 2006 deciding writ petition disputing the orders passed by the Revenue Authorities excluding the names of the sons of Laxman natural born son of Pandurang, on the ground that they have no right, title or interest in relation to suit property as they were born prior to the date of adoption of Laxman. The first appeal filed by the natural daughter of Laxman was dismissed along with the writ petition holding that the sons born to Laxman prior to adoption are the heirs of Laxman and are entitled to his estate along with the daughter born to Laxman after his adoption.

2. The facts are that Laxman was given in adoption to Saraswati on 2nd November, 1935. Laxman had three sons Gangadhar aged 4 years 5 months; Dattatraya aged 2 years 5 months and Manohar aged 9 months at the time of his adoption. After adoption, Laxman and his wife Padmavati joined the family of Saraswati along with their 3 sons. It was in the year 1938, daughter Kalindi was born to Laxman and Padmavati. The natural father of Laxman, Pandurang effected partition in respect of his joint family property on 30th December, 1948 wherein Laxman was excluded from any share as he had gone in adoption to Saraswati.

3. Laxman died on 10th January, 1987. Saraswati had predeceased Laxman. After the death of Saraswati, Laxman inherited the property of Saraswati which is the subject matter of the present appeals. After the death of Laxman, his daughter Kalindi applied for effecting the change in the village revenue record for inclusion of her mother Padmavati and herself as owners. The mutation was entered on 11th March, 1987. The matter was taken at various stages thereafter. The revision filed by Manohar, son of Laxman, was dismissed on 8th September, 1992. Aggrieved, Manohar had filed the writ petition.

4. Padmavati, wife of Laxman, died on 10th October, 1992 leaving a registered Will dated 21st May, 1987 in which she had bequeathed her share to her 3 sons which were born prior to the date of adoption. On 20th October, 1996, Gangadhar, one of the sons of Laxman and Padmavati, died. Thereafter, Dattatraya, the second son filed a suit for partition, separate possession and mesne profit against forcible possession by Kalindi. This suit was decreed on 13th November, 2004. The main contest of the parties was on the question as to whether the three sons of Laxman born before adoption in 1935, namely, Gangadhar, Dattatraya and Manohar are entitled to inherit the property in adoptive family of Laxman after his death.

5. In a suit by Kalindi, the daughter born to Laxman and Padmavati, she had taken a plea that the sons born before adoption have no right, title or interest in the properties left behind by Laxman and she being a daughter born to Laxman after his adoption would inherit the entire property along with Padmavati, her mother. Both the matters were taken up for hearing together wherein the learned Single Bench relying upon Section 8 of the Hindu Succession Act, 1956[for short, 'Act'] held that the son born before adoption is entitled to succeed to the property of their father.

6. Before this Court, Mr. Venkataramani, learned senior counsel for the appellants relied upon judgment of Division Bench of Bombay High Court reported as Kalgavda Tavanappa Patil vs. Somappa Tamangavda Patil & Anr., ILR (1909) 33 Bom 669 wherein it has been held as under:

"The son, then, begotten by an adopted Hindu before adoption has vested rights in the ancestral property of the family of his birth. Rights of property once vested cannot be taken away except in the mode or modes prescribed by Hindu Law. They cease either by death, sale, gift, degradation, disqualification or by adoption. In the case of a son whose father has been given in adoption after his birth, if none of these modes for the extinction of his vested rights of property applies