REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6642-6643 OF 2010

KALINDI DAMODAR GARDE (D) BY LRS. .....APPELLANT(S)

VERSUS

MANOHAR LAXMAN KULKARNI & ORS. ETC. .....RESPONDENT(S)

J U D G M E N T

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

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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

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against forcible possession by Kalindi. This suit was decreed on 13 th

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,  19561 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  v.  Somappa

Tamangavda Patil & Anr.2 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

1  for short, ‘Act’ 2  ILR (1909) 33 Bom 669

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adoption after his birth, if none of these modes for the extinction of his vested rights of property applies, there must  be the clear  authority  of  some text  for  holding that the rights in question are extinguished because the father of the owner of those rights, having been given in  adoption,  has  his  rights  in  his  natural  family extinguished by the act of adoption.”

7. The  argument  is  that  the  wife  of  an  adoptee  passes  with  her

husband to the adopted family but not the sons born to an adoptee

before his adoption.  They continue to be members in the family in

which their father was naturally born.  Mr. Venkataramani, learned

senior  counsel  for  the  appellants  vehemently  argued  that  the

codified Hindu Law has not provided that the children born to an

adoptee before adoption will be entitled to inherit the property in

the adopted family, therefore, keeping in view the interpretation of

Hindu  Law  as  interpreted  in  Kalgavda  Tavanappa  Patil,  the

children born before adoption will not pass with the adoptee in the

adopted family and are not entitled to the share in the estate of the

adopted family.   

8. Learned senior counsel for the appellants relied upon the following

quote from the judgment in Kalgavda Tavanappa Patil:

“But it is argued that when a married man is given in adoption,  his  wife  passes  with  him into  the  adoptive family—she, like him, acquires the new gotra; that what applies to the wife of the man adopted must apply to his  son  also,  begotten  before  the  adoption,  because, both  according  to  the  Smriti  writers  and  their commentators,  a man's wife and sons go together. In support of this argument reliance is placed on a text of Narada  cited  by  Vijnaneshvara  in  his  chapter  on “Resumption  of  Gifts”  in  the  Mitakshara  (p. 225, Moghe's 3rd Ed).” (page 687)

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…………….But the text does not say that the son of that man, born before his adoption, ceases to be his son and loses the right to offer funeral oblations to his soul in case  of  his  death.  For  one  thing,  according  to  the Hindu Shastras,  “by  no  means  can  you  make  your father cease to be” (Jaimini, Bibliotheoa Indica Series, Vol. I, p. 742). The mere fact that the father has gone into another family by adoption and ceased to be of his son's gotra or family cannot unmake what he naturally is—the son's father. The gotras of the two may differ in consequence  of  the  adoption,  but  it  is  not  always necessary  for  funeral  ceremonies  that  the  person performing  them should  be  of  the  same gotra as  the deceased. A sister's son and a son-in-law can perform those  ceremonies  and  yet  they  are  not  of  the same gotra. So a son begotten before the adoption of his  father  would  be  entitled  to  perform  the  latter's funeral  ceremonies.  All  the Smriti says  is  that  such ceremonies “shall be performed by a son.” It does not make the obligation dependent upon the continuance of the father in the same gotra as the son.” (Page 690)

9. The Full Bench of Bombay High Court in Martand Jiwajee Patil &

Anr.  v.  Narayan Krishna Gumast-Patil & Anr.3  referred to the

aforesaid  judgment  when considering  a  case  as  to  whether  the

adoptee has a right to give his son, born prior to his adoption, in

adoption.  The Court held as under:

“In Raghuraj  Chandra v. Subhadra  Kunwar [(1928)  L.R. 55  I.A.  139  at  p.  148,  S.C.  30  Bom.  L.R.  829.]  their Lordships of  the Privy Council  after stating at  p.  148 that  though  adoption  is  spoken  of  as  “new  birth”  in many cases, a term sanctioned by the theory of Hindu law, yet “As has been more than once observed,  the expressions ‘civilly dead or as if he had never been born in the family’ are not for all purposes correct or logically

3  AIR 1939 Bom 305

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applicable,  but  they  are  complementary  to  the  term ‘new birth’.”  The  inapplicability  of  the  theory  can  be illustrated by concrete instances:—

(a)  The tie of blood between the adopted son and the members of his natural family is not severed. He cannot marry  in  his  natural  family  within  the  prohibited degrees, nor can he adopt from his natural family a boy whom he could not have adopted if he had remained in that family [Moottia Moodelly v. Uppon Vencata Charry]. [(1858) Mad. S.D. 117.]

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(c) The adoptive father cannot give his adopted son in adoption (Sarkar's Hindu Law of Adoption, pages 281- 282).

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These instances show that an adopted son is not civilly dead in  his  natural  family  nor  reborn in  his  adoptive family.

It  is  no  doubt  true  that  by  giving  away  his  son  in adoption  the  adopted  father  indirectly  meddles  with the riktha or  property  of  his  natural  family,  since  the effect of that adoption will  be to extinguish the son's interest in that property. But thereby the father himself gains no interest in the property. All  that Manu's text says  is  that  he  should  not  take  for  himself the gotra and riktha of his natural family, and does not prohibit him from doing any act which may affect the property of his natural family. Thus, for instance, if he has a brother in his natural family, he is not prohibited from  giving  his  son  born  after  his  own  adoption,  in adoption to that brother, although thereby the different interests  in  the  property  of  his  natural  family  are affected.

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In the absence of any express text or judicial decision depriving an adopted son of his right to give away in adoption his son born before his adoption, we do not think  that  any  useful  purpose  will  be  served  by imposing such a restriction upon him. The modern trend of  decisions  is  to  take  a  more  liberal  view  and  to

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interpret the texts from a practical point of view as far as  possible.  This  is  particularly  noticeable  in  the decisions of this Court on several questions of adoption, such as the adoption of an only son, the adoption of a married boy, the adoption of a boy whose mother the adopting father could not have legally married, and the adoption by a widow without the express consent of her husband.  We  do  not  see  why  a  similar  liberal  view should not be taken in this case, having regard to the interests of the boy to be given in adoption. With his father actually living, it would be a hardship on the boy to treat him as an orphan, merely because the father has  gone  in  adoption.  Usually  when  the  father  is adopted,  his  preborn  sons  are  still  minors,  and  in practice  they  go  with  their  father  to  live  with  him, though legally they are held to have remained in the natural  family  of  their  father.  Though  the  father  has gone in adoption,  the ties of  affinity and love for his preborn sons cannot be severed, and he is the proper man  to  look  after  their  education  and  welfare.  If  a guardian is to be appointed for them, he will naturally be consulted. Having their interest at heart, he is the best person to decide whether one of them should be given  in  adoption  and  what  is  conducive  to  their benefit. By giving one of his sons in adoption he himself gains  no  benefit,  and  he  may  be  safely  trusted  to exercise his discretion rightly for the good of his son, though born before his own adoption.”

10. The Court held that the paternity of the father cannot be shaken off

even  though  he  may  leave  the  family,  as,  according  to  Hindu

Shastras, “By no means can you make your father cease to be,”.

The Court held as under:

“It may be that in ancient and primitive society the son was regarded as hardly better than his father's slave, and the prominent idea involved in an adoption was the transfer  of  dominion  or patria  potestas to  the  person adopting. But when the times changed and the status of the  son  was  raised,  the  father's  power  to  give  in adoption came to be founded on a different conception. The text of Vasishtha quoted in Dattaka Mimansa (sec. V, pl. 31), which is said to afford the foundation of the Hindu  law  of  adoption,  and  which  I  have  already

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referred to, recognizes the power of the father and the mother to “give or sell or abandon” their son as he is “produced  from  their  virile  seed  and  uterine  blood.” This paternity of the father cannot be shaken off even though he may leave the family, as, according to the Hindu Shastras “By no means can you make your father cease to be,” (Jaimini, Bibliotheca Indica Series, Volume I,  p.  742).  The  same  thing  is  expressed  by Chandavarkar,  J.  in Kalgavda  Tavanappa v. Somappa Tamangavda as follows (p. 690):—

“The  mere  fact  that  the  father  has  gone  into another family by adoption and eased to be of his son's gotra or  family  cannot  unmake  what  he naturally is—the son's father.”

11. Though, the aforesaid judgment was in the context of the right of

an adoptee to give his son born prior to his adoption, but the fact

that the adoptee will remain the father of the son was recognised

way  back  in  1939.  Thus,  the  Judgment  in  Kalgavda

Tavanappa Patil has  not  been  accepted  even  under  the  Hindu

Law.  

12. However, the situation has undergone a complete change with the

enactment  of  the  Act.   The  said  Act  overrides  all  text,  rule  or

interpretation of Hindu law or any custom or usage as part of that

law in  force immediately  before the commencement of  this  Act.

Section 4 of the Act reads as under:

“4.  Overriding effect of Act. -  Save as otherwise expressly provided in this Act,—

(a)  any text rule or interpretation of Hindu law or any custom  or  usage  as  part  of  that  law  in  force immediately before the commencement of this Act shall cease  to  have  effect  with  respect  to  any  matter  for which provision is made in this Act;.

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(b)   any  other  law  in  force  immediately  before  the commencement of this Act shall cease to have effect in so far as it  is inconsistent with any of  the provisions contained in this Act.”

13. Since the succession has opened after the death of Laxman on 10th

January, 1987, therefore, succession has to be in accordance with

the Act and not as per Hindu law as all text, rule or interpretation

of Hindu law prior to commencement of the Act have ceased to

have any effect unless expressly provided for in the said Act.  This

Court in a Judgment reported as  Bhaiya Ramanuj Pratap Deo v.

Lalu  Maheshanuj  Pratap  Deo4 held  that  a bare  perusal  of

Section 4 would indicate that any custom or usage as part of Hindu

law in  force  will  cease  to  have  effect  after  the  enforcement  of

Hindu  Succession  Act  with  respect  to  any  matter  for  which

provision is made in the Act.  

14. The principle that the Act will be applicable on the date succession

opens is well settled. Reference may be made to a judgment re-

ported as  Bhanwar Singh v. Puran & Ors.5, wherein this Court

held that the Act brought about a sea of change in the matter of

inheritance and succession amongst Hindus. Section 4 of the Act

contains a non- obstante provision in terms whereof any text, rule

or interpretation of Hindu Law or any custom or usage as part of

that  law in force immediately before the commencement of  the

Act, ceased to have effect with respect to any matter for which

provision is made therein save as otherwise expressly provided.

4  (1981) 4 SCC 613 5  (2008) 3 SCC 87

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15. Since there is no provision of denying the rights of succession to

the natural born son of an adoptee father, therefore, the succession

will be in terms of the provisions of the Act alone.   

16. It  may  be  noticed  that  the  three  sons  and  Kalindi  are  born  to

Laxman and his wife Padmavati.  They are agnates and related by

full blood in terms of Section 3(a) and 3(e) of the Act. As per the

Schedule to the Act, the son and the daughter of a deceased Hindu

male are class I heirs.  Some of the relevant provisions of the Act

read as under:

“3. Definitions and interpretation.- (1) In  this Act, unless the context otherwise requires,—

(a) “agnate”—one  person  is  said  to  be  an “agnate” of another if the two are related by blood or adoption wholly through males;

xx xx xx

(e) “full blood”, “half blood” and “uterine blood”—

(i) two persons are said to be related to each other by full  blood  when they  are  descended from a common ancestor by the same wife, and by half blood when they are  descended  from  a  common  ancestor  but;  by different wives;

(ii) two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;

(f) “heir”  means  any  person,  male  or  female,  who  is entitled  to  succeed  to  the  property  of  an  intestate under this Act;

xx xx xx

(j)   “related”  means  related  by  legitimate  kinship: Provided that illegitimate children shall  be deemed to be related to their  mothers  and to one another,  and

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their  legitimate  descendants  shall  be  deemed  to  be related  to  them  and  to  one  another;  and  any  word expressing relationship or denoting a relative shall  be construed accordingly.

xx xx xx

8.  General rules of succession in the case of males.— The  property  of  a  male  Hindu  dying  intestate  shall devolve according to the provisions of this Chapter—

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;   (b) secondly, if there is no heir of class I, then upon the heirs,  being  the  relatives  specified  in  class  II  of  the Schedule;

(c) xxxxx”

17. The manner of inheritance under the Act, in the cases of adoption

of married persons before the enactment of the Act, has come up

for consideration before the Learned Single Bench of Bombay High

Court in an unreported Judgment (Dundyappa Laxman Karol  v.

Neelavva Chandrappa Jarali)6.   In the said case, the plaintiffs

were children of Shivappa, from his wife Gouravva, born before the

adoption of Shivappa. The claim was in the estate of Shivappa, who

died on 17th March 1957 that is after the commencement of the

Act.  Gouravva  also  died  on  6th August  1957.  The  stand  of  the

defendant was that the plaintiffs being children of Shivappa before

he went in adoption were not entitled to inherit  the property of

Gouravva,  which  she  inherited  from her  husband.   The  learned

Single Bench noticed that the adoption of Shivappa took place long

before  the  enactment  of  Hindu  Adoptions  and Maintenance Act,

6  Second Appeal No. 556 of 1964 decided by Bombay High Court on 26th November, 1971.

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1956 and  thus  adoption  would  be  governed  by Hindu law as  it

existed prior to enactment.  The Court held that an adopted child is

to be deemed as a child of his or her adoptive father or mother for

all  purposes  with  effect  from  the  date  of  the  adoption.   One

important result of the severance of the ties in the family of birth

would be that the adoptee can no longer claim any right to succeed

to  the  property  of  his  natural  father  or  mother  or  any  of  the

relations  in  the  family  of  birth.   The  question  considered  was

whether the children born prior to date of  adoption of  Shivappa

would be entitled to inherit the property on the death of Gouravva

which took place after coming into force of the Act.  It was held that

the  property  inherited  by  a  Hindu  female  howsoever  acquired

would be her absolute property.  The Court held as under:

“…Broadly speaking, the property possessed by a Hindu female after the coming into force of the said Act would no longer be her limited estate but will be regarded as her absolute property and the intestate succession to such property would be governed by sections 15 and 16 of the Hindu Succession Act.

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In my opinion, the fictional severance of ties with the natural family would not mean that her children would cease to be her children or can be considered to be not her children by means of a legal fiction.  If by virtue of the  definition  in  Section  3(j)  even  the  illegitimate children of a Hindu female have been given a right to inherit her property, then it would not be permissible to say  that  her  legitimate  children  should  be  excluded because they were born to her prior to the date of her husband’s adoption.   If,  however,  the Legislature had specifically provided for this, then effect must be given to such a provision and the wishes of the Legislature respected.   Where,  however,  there  is  no  such  clear provision,  such exclusion would  appear  to  be against

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the plain language of the enactment and it would not be proper to come to any such conclusion.”  

18. It  was found that the Privy Council  decision reported as  Tewari

Raghuraj Chandra & Ors.  v.  Rani Subhadra Kunwar & Ors.7

does not afford any guidance to the question as to whether the

legitimate  children  born  prior  to  adoption  would  cease  to  be

included in the category of her children.  

19. The Division Bench of Bombay High Court in  Kausalyabai W/o

Jagdeorao  v.  Devkabai  W/o  Jaiwantrao  Deshmukh8 while

examining the right of a daughter born to an adoptee before his

adoption, on the question as to whether she is entitled to inherit

the estate of her father after the commencement of the Act, held

as under:

“33.  Mr. Paranjpe fairly stated that he could not find any  authority  taking  the  view  that  such  a  daughter would cease to be the daughter of her father because of his adoption. As far as we are aware, there is no text of any Dharmashashtra, which lays down that a daughter ceases to be a daughter the moment her father is given in adoption. 34.  The blood relation of the daughter and the father continued till the Hindu Succession Act came into force; and hence we are of the view that Mr. Deo's contention that the daughter, the defendant, was entitled to ⅝th share in the suit lands, having regard to the provisions contained in ss. 8 and 15(b) read with s. 10, R. 1, must be upheld.  The decree must, therefore, follow in favour of the plaintiff; only to the extent of ⅜th share in the suit lands.”

20. Similar view has been taken by the Division Bench of the Karnataka

High Court in a judgment reported as  Smt. Neelawwa  v.  Smt.

7  AIR 1928 PC 87 8  (1978) 16 Mh.L.J. 357

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Shivawwa9 wherein, the daughter of deceased Mallappa claimed

half share in the suit property and the defendant claimed her right

as a widow, being the step mother of the plaintiff.  However, the

defendant alleged that the plaintiff was born prior to the adoption.

Mallappa  was  given  in  adoption  in  the  year  1939  whereas  the

plaintiff was born in the year 1937.  In this case, the Court held as

under:

“9……………………..In  our  view it  means  and  includes moveable and immoveable property, whether separate or  self  acquired  or  an  interest  in  a  Mitakshara Coparcenary  property  provided  he  has  left  him surviving any of  the female heir  or  a  daughter's  son mentioned in Class I of the Schedule to the Act. The fact that  the  deceased  Mallappa  had  come  to  own  and possess the suit land by reason of his adoption did not make any difference for the purpose of Section 8 of the Act as it was the property of Mallappa at the time of his death. Now we shall see whether the plaintiff cannot be considered to be an heir of her father merely because she  was  born  before  he  was  given  in  adoption.  The expressions  ‘heir’  and  ‘related’  are  also  defined  in Section  3(f)  and  (j)  respectively  of  the  Act.  “Heir” means any person male or female who is  entitled to succeed to the property of an intestate under the Act. “Related”  means  related  by  legitimate  kinship.  The proviso to this definition is not relevant for our purpose, because  it  is  not  in  dispute  that  the  plaintiff  is  the legitimate  daughter  of  the  deceased  Mallappa  born through his 1st wife. It is true, adoption had the effect of removing Mallappa from his natural family into the adoptive family, but did not and could not severe the tie of blood relationship between him and the plaintiff, or for  that  matter  the  members  of  his  natural  family. Therefore,  the plaintiff irrespective of  the adoption of her father continued to be the daughter of  Mallappa. Thus  the  plaintiff  being  the  daughter  falls  in  the category of heirs specified in Class I of the Schedule to the Act……………”

9  AIR 1989 Karnataka 45

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21. In  view  of  the  provisions  of  the  Act  which  do  not  make  any

distinction between the son born to a father prior or after adoption

of his father and that there is no provision which bars the natural

born son to inherit the property of his natural father, therefore, the

High Court has rightly upheld the rights of the sons of Laxman.  In

fact, in the Full Bench judgment of Bombay High Court in Martand

Jiwajee Patil, it has been held that the natural father retains the

right  to  give in  adoption  his  son born  before  his  own adoption.

Therefore, if he has a right to give his son in adoption, such son has

a right to inherit property by virtue of being an agnate.  There was

a full blood relationship between the three sons and the daughter

who  was  born  after  adoption.  All  the  children  of  Laxman  are

entitled to inherit the property of their natural father and mother in

accordance with the provisions of the Act as succession has opened

after the death of Laxman in 1987 and subsequently the mother in

the year 1992.   

22. In view thereof, we do not find any error in the judgment of the

learned Single Bench of the Bombay High Court.  Accordingly, the

appeals are dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; FEBRUARY 07, 2020.

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