An adopted child's interest in undivided Hindu family property, vested before adoption, continues to vest in the child despite adoption, as per Section 12(b) of the Hindu Adoptions and Maintenance Act, 1956.

Debangsu Basak, J.

The propounders seeking grant of probate of the Will of Purushottam Dass Bangur, since deceased has applied for the caveat of the son of the deceased given in adoption, namely, Lakshmi Niwas Bangur (hereinafter referred to as the ‘caveator’) to be discharged and probate of the Will of the deceased to be granted.

2. Mr. S.K. Kapoor, learned Senior Advocate for the petitioners has submitted that, consequent to the caveator being given in adoption, he had ceased to have any right in the natural family in view of the provisions of Section 12(b) of the Hindu Adoptions and Maintenance Act, 1956. In support of the proposition that, with the adoption, the adoptee cannot have any vested right in the undivided Hindu family of his natural birth Mr. Kapoor has relied upon (1987) 1 SCC 160 : All India Reporter 1987 Supreme Court page 398 (Vasant v. Dattu), AIR 1992 Bom 189 (Devgonda Raygonda Patil v. Shamgonda Raygonda Patil) and 2001 AIR(Pat) 125 (Santosh Kumar Jalan v. Chandra Kishore Jalan). He has submitted that, the view taken by the Andhra Pradesh High Court reported at AIR 1981 AP 19 (Yarlagadda Nayudamma v. The Government of Andhra Pradesh) is not correct. Such view has been dissented from by the High Courts of Patna and Bombay. Mr. Kapoor has emphasized the difference between a joint Hindu family continuing in jointness with the properties available to the family and a joint Hindu family governed by the Mitakshara law having such properties partitioned amongst themselves. In this regard he has relied upon (1988) 2 SCC 126 (Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe) and All India Reporter 1935 Calcutta page 131 (Dhanabati Bibi v. Protapmull Agarwalla).

3. Mr. S.P. Sarkar, learned Senior Advocate appearing for the caveator has submitted that, the caveator is a natural son of the testator. The petition for grant of probate has shown the caveator as a natural heir. By an Order dated January 5, 2012 a special citation was directed to be issued to the caveator as the caveator was not cited initially. Although the caveator was given in adoption in 1970 yet the caveator has the locus standi to question grant of probate of a Will of the testator. In the affidavit in support of the caveat the caveator has disclosed various grounds on which the probate ought not to be granted. A probate Court being a Court of conscience such Court had allowed third parties to apply for revocation of probate already granted. In support of such proposition he has relied upon AIR 2005 Cal 343 (Smt. Chunibala Barui v. Lakshmimani Adbikary). Since the caveator has come at a stage prior to the grant of probate, it would be proper for the probate Court to allow the caveator to contest the grant of the Will. He has referred to various provisions of the Will which according to him could not have been part of a Will if the Will was genuine. Mr. Sarkar has referred to Section 30 of the Hindu Succession Act, 1956. He has submitted that, Section 30 allows any Hindu to dispose of by Will or other testamentary instrument any property which is capable of being disposed of by him in accordance with the provisions of Hindu Succession Act, 1956 or any other law for the time being in force and applicable to a Hindu. He has submitted referring to the explanation of Section 30 that the interest of a Hindu in Mitakshara coparcenary property is deemed to be property capable of being disposed of by him within the meaning of Section 30. He has referred to provisions of the Will which speaks of a business being carried out in the name of the Hindu Undivided Family. According to him, the caveator had succeeded to the interest of the testator in respect of such business. Mr. Sarkar has relied upon the definition of vested interest under Section 19 of the Transfer of Property Act, 1882. He has submitted that, the caveator has vested interest in the testator's interest in the business of the joint Hindu family. Therefore, in case of intestate succession