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IN THE HIGH COURT OF BOMBAY
B.A. Masodkar B.J. Rele, JJ.
Hirabai wife of Harji Ingale another ... Appellants.
Versus
Babu Manika Ingale ... Respondent.
First Appeal No. 671 of 1971, decided on 8-2-1980.
Advocates appeared :
R.W. Adik and A.G. Godhamgaonkar, for appellants-plaintiffs.
D.Y. Lovekar, for the respondent-defendant.
The adoption of a child under the Hindu Adoption and Maintenance Act, 1956, confers upon the adopted child the status of a natural-born child in the adoptive family, including the right to inherit property from the adoptive parents. The adopted child is deemed to be the child of the adoptive parents for all purposes, with effect from the date of adoption. This legal fiction of "relation back" operates to confer upon the adopted child all the rights and privileges of a natural-born child, including the right to inherit property. However, the adopted child does not divest any person of any estate that vested in them prior to the adoption.
Fact of the Case:
Hirabai, a widow, adopted Babu in 1962. In 1967, Hirabai filed a suit to cancel the adoption and recover possession of the property that she had gifted to Babu. The trial court dismissed the suit, finding that the adoption was valid and that Babu had been surrendered his interest in the property. Hirabai died during the pendency of the appeal, and her daughter Latabai, who had purchased the property from Hirabai, was substituted as the appellant.
Finding of the Court:
The court held that the adoption of Babu was valid and that he had acquired an interest in the property by virtue of the adoption. The court further held that Hirabai had surrendered her interest in the property in favor of Babu, and that Latabai, who had purchased the property from Hirabai, could not claim any title to the property.
Issues: 1. Whether the adoption of Babu was valid? 2. Whether Babu acquired an interest in the property by virtue of the adoption? 3. Whether Hirabai had surrendered her interest in the property in favor of Babu? 4. Whether Latabai, who had purchased the property from Hirabai, could claim any title to the property?
Ratio Decidendi: 1. The court held that the adoption of Babu was valid because it was done in accordance with the provisions of the Hindu Adoption and Maintenance Act, 1956. The court also held that the presumption of validity attached to registered adoption deeds under Section 16 of the Act was not rebutted by the evidence presented by Hirabai. 2. The court held that Babu acquired an interest in the property by virtue of the adoption. The court relied on the legal fiction of "relation back" under Section 12 of the Act, which deems an adopted child to be the child of the adoptive parents for all purposes, with effect from the date of adoption. The court held that this legal fiction operated to confer upon Babu all the rights and privileges of a natural-born child, including the right to inherit property. 3. The court held that Hirabai had surrendered her interest in the property in favor of Babu. The court relied on the evidence of Babu and other witnesses, which showed that Hirabai had intended to surrender her interest in the property in favor of Babu and that she had acted upon this intention by executing a mutation deed in Babu's favor. 4. The court held that Latabai, who had purchased the property from Hirabai, could not claim any title to the property because Hirabai had already surrendered her interest in the property in favor of Babu.
Final Decision: The court dismissed the appeal and upheld the trial court's decision to dismiss Hirabai's suit. The court also directed the receiver to hand over possession of the suit property to Babu.
B.A. MASODKAR, J.:---This appeal occupied considerable time of ours because of some intricate, important and thorny debate with regard to the rights of the adopted son in the adoptive family. As far as the facts are concerned. The appeal raises a very limited issue. Initially, the appeal was filed by Hirabai (widow of Harji Ingale). Who was found to be the adoptive mother of respondent Babu. Hirabai died during the pendency of the appeal. Appellant No. 2 Latabai, who is a minor of 11 years of age, claims to be the purchaser of the property from Hirabai after the adoption in issue of Babu. One Digambarrao, who has not examined himself, is the guardian father of Latabai, who has, in fact, purported to take the sale of the property from Hirabai.
2. The suit was initially filed by Hirabai alone, but after the institution of the suit, the so-called transfer was effected and Latabai joined as plaintiff No. 2. By the suit, the relief of cancellation of the deed of adoption and consequent declaration of ownership with regard to Survey No. 81, admeasuring 5 acres and 23 gunthas, was prayed for. It is not in dispute that one Harji was the owner of the suit land and he died sometime between 1935 and 1937. The property is his hands was the ancestral property. By the suit deed, which is at Ex. 83, duly executed and registered on March 9, 1962, Hirabai adopted defendant Babu. After the adoption, the property, being Survey No. 81, was duly mutated in the name of Babu. There is some dispute between the parties with regard to the application given for mutation and the notice issued by the Revenue Authorities (Exs. 69 and 70 respectively) and the mutation order dated April 20, 1963. The fact remain however, that immediately after the adoption, as far as the suit survey number is concerned, it was duly mutated in the name of the adopted son Babu. Initially, the suit was instituted in the year 1967 on the allegations that the defendants father and some respectable persons persuaded the plaintiff Hirabai to take the defendant in adoption for continuing the line of the family and the plaintiff agreed to this suggestion and told them to keep Babu at her house and after she satisfied herself about his conduct, she should perform the adoption ceremonies. Accordingly, the defendant was kept by the plaintiff for the purpose of satisfaction and confidence about the boy. Though the deed of adoption was executed and registered on March 9, 1962, no ceremonies of adoption took place. Defendant Babu started living with the plaintiff after the execution of the deed and was helping her in the management of the estate, but as his behaviour was not proper and he was found to be dishonest to the extent that the plaintiff was driven out of the land; the plaintiff was compelled to sue for the reliefs and though the mutation was effected, the same was got dishonestly effected by the defendant. These allegations were not materially changed even after the purchase was effected by Digambarrao obviously in the name of the minor daughter, Latabai, who joined as plaintiff No. 2, of the suit survey number for an ostensible consideration of Rs. 25,000/-. At this stage, we have referred to the basic allegations in the plaint so as to indicate that the duly registered deed of adoption is sought to be cancelled and avoided mainly on two grounds, firstly the wants of ceremonies and secondly that it was, in fact, executed on the basis that adoption ceremonies will take place in future upon satisfaction of the goods conduct of the defendant. As far as the mutation is concerned, the plea appears to be one of dishonesty.
3. This being the nature of the suit, naturally, the defence was one of denial and an assertion of due adoption and furthermore of an assertion that not only the adoption ceremonies took place but actually after the adoption, the defendant was admitted in the family and as the adopted son, his name recorded and at the time of mutation, because of
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