Family Law Project

Effects
Of

Adoption

Compiled By
Ankit Chowdhri
10/09
 Case Table

Ankush Narayan v. Janabai [AIR 1966 Bom. 174] 9

Basant v. Duttu [AIR 1987 SC 398] 9
Basavarajappa v. Gurubasamma [(2005) 12 SCC 290] 1
Beshetappa v. Shivagappa [ILR (1972) Bom. HC 268] 7
Devgonda Raygonda Patil v. Shamgonda Raygonda Patil [AIR 1992 Bom. 189] 5
Dinaji v. Dadde [AIR 1990 SC 1153] 9
G. Narayanappa v. Government of Andhra Pradesh [(1992) 1 SCC 197] 10
Inder Singh v. Kartar Singh [AIR 1966 Punj. 258] 1
Kishan Baburao Memane v. Suresh Sadhu Memane [AIR 1996 Bom. 50] 8
Muthukrishnan v. Sri Palani [(1969) 1 MLJ 129] 5
Nanak Chand v. Ami Lal [(2003) 1 HLR 624 (P&H)] 2
Nanda Kishore v. Bhupendra [1966 Cal. 181] 4
Narasayya v. Rammachandrayya [AIR 1956 AP 209: 55 Audh WR 1] 10
Papanna v. Madappa [(1993) 1 HLR 305 (Kant.)] 10
Prafulla Bala Mukharji v. Satish Chandra Mukherji [AIR 1998 Cal. 86] 4
Punithavalli Ammal v. Ramalingam [(1970) 1 SCC 570: AIR 1970 SC 1730] 8
Raghunath Behera v. Balaram [AIR 1996 Ori. 38] 1
Ratha Behera v. Ganga Behra [AIR 2003 (Ori.) 532] 5
Sanabai v. Wasudeo [AIR 1979 Bom. 181] 8
Santosh Kumar Jalan alias Kanhaya Lal Jalan v. Chandra Kishore Jalan [ 2001 Pat.
125] 3
Santosh Kumar v. Chandra Kishore [AIR 2001 Pat. 125 (DB)] 6
Sawan Ram v. Kalawati [AIR 1967 SC 1961] 4, 7, 8, 9
Sita Bai v. Ram Chandra [AIR 1970 SC 343] 9
 Abbreviations

& and

AIR All India Reporter

Bom. Bombay

Cal. Calcutta

DB Divisional Bench

Dr. Doctor

ed. Edition

HLR Hindu Law Reporter

Ibid. Ibidem

ILR Indian Law Reports

MLJ Madras Law Journal

Nag. Nagpur

Ori. Orissa

P&H Punjab and Haryana

p. Page Number

Pat. Patna

Punj. Punjab

SC Supreme Court

SCC Supreme Court Cases

v. versus
 Adoption: An Introduction

Adoption is the legalized recognition of a person as son.1According to Hindu notions,

a son is necessary to a person not only to continue the linage but also to offer oblations to the
manes or ancestors to the fourth degree. The person adopted has all the privileges of a natural
born son except there was a reduction in the share of property, different according to different
schools, if a natural son was born subsequent to adoption.2

On adoption, adoptee gets transplanted in adopting family with the same rights as that
of the natural born son. Adopted child becomes coparcener in the Joint Hindu Family
property after severing all his ties with natural family.3

Some judges hold that the object of adoption is twofold: to secure performance of
ones funeral rights and to preserve the continuance of ones linage. 4 Under Hindu law, there
were many rules relating to adoption which could be supported only on the basis that
adoption was a sacramental act. For instance the following rules could only be supported only
on this basis: the adopted son must be a reflection of a son (saunaka): this prevented the
adoption of orphans and illegitimate children; daughter could not be adopted: no one could
have more than one adopted son; one could not adopt a child whose mother one could not
marry when she was a maiden; thus a daughters son or sisters son could not be adopted as
one could not marry his sister or daughter.5 The same seems to be the reason for the rule that
when a widow adopted a son, it was always deemed to be adoption to her deceased husband.
The principle is responsible for the doctrine of relation back.

The Hindu Adoptions and Maintenance Act, 1956, has steered clearly off from all
religious and sacramental aspects of adoption and has made adoption a secular institution and
secular act, so much so that even a religious ceremony is not necessary for adoptions. Under
the legislation there cannot be two types of adoptions, one purely secular and the other
sacramental. All adoptions after 1956 are secular, and to be valid, must conform to the
requirement of the Act.

1 nd
Sharma, Dr. Basant, K., Hindu Law, 2 Ed., Central Law Publications, Allahabad, 2008. p. 193.
2
Raghunath Behera v. Balaram, AIR 1996 Ori. 38.
3
Basavarajappa v. Gurubasamma, (2005) 12 SCC 290.
4
Inder Singh v. Kartar Singh, AIR 1966 Punj. 258.
5 th
Diwan, Paras, Modern Hindu Law, 20 Ed., Allahabad Law Agency, Allahabad, 2009. p. 234.
 Customary Adoption in Punjab

Under the customary law of adoption which was in force before the commencement
of the Act, adoption is a nomination of a successor for the purpose of inheritance. He does
not lose all connections with the family of birth.6

Effects of Adoption: Statutory Provision

Section 12 of the Hindu Adoptions and Maintenance Act, 1956, relates to the Effects
of Adoption and the provision reads as under7:

12. Effects of Adoption An adopted child shall be deemed to be the child of his or her
adoptive father or mother for all purposes with effect from the date of the adoption and from
such date all the ties of the child in the family of his or her birth shall be deemed to be served
and replaced by those created by the adoption in the adoptive family:

Provided that

(a) the child cannot marry any person whom he or she could not have married if he or
she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue
to vest in such person subject to the obligations, if any, to maintain relatives in the
family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested him or her
before the adoption

Effects of Adoption on Natural Family

Relationship with the Members of the Natural Family

For secular, religious and civil purposes the adopted child ceases to be the child of the
natural family. His father and mother cease to be his parents and all relations on the fathers
side and mothers side cease to be his relations. Only tie that he retains with his natural

6
Nanak Chand v. Ami Lal, (2003) 1 HLR 624 (P&H).
7 st
See Mitra on Hindu Law, 1 Ed., Orient Publishing Company, New Delhi, 2005. p. 695.
family is that he cannot marry any person in his natural family whom he could not have
married before the adoption.8

The natural parents tight of guardianship ceases with effect from the date of
adoption, whatever be the age of the child. Even if the child is below 5 years, its natural
mother cannot claim custody.9 When adoption of a married person is permitted that person
cannot give in adoption his child born to him prior to adoption.10 Though a contrary opinion
was expressed in a case under old law.11

Prohibition from Marrying in the Natural Family

According to Proviso (a) the total uprooting of the child from the natural family and
its transplantation in the adoptive family does not mean that all ties of blood are snapped. The
tie of blood for the purposes of marriage is retained. The child cannot marry any person in his
natural family whom it could not have married had he not gone in adoption. This means that
the child retains sapinda relationship and degrees of prohibited relationship in his natural
family for the purpose if marriage.12

Effects of Adoption in Adoptive Family

Relationship with the Members of Adoptive Family

The adopted child is deemed to be the child of the adopter for all purposes. His
position for all intents and purposes is that of a natural born son: he has the same rights,
privileges and the same obligations in the adoptive family.13

The adoption in Hindu Law means complete transplantation of the child in the
adoptive family. This means that he is not merely the child of the adoptive parents but he is
also related to all relations on the mothers side as well as fathers side as if he is the natural
born child of the family. Thus, fathers and mothers parents are his grandparents. His
adoptive parents daughter is his sister and so on. In Prafulla Bala Mukharji v. Satish

8 nd
Diwan, Dr. Paras, Hindu Law, 2 Ed., Orient Publishing Company, New Delhi, 2004. p. 1122.
9
Which she would be entitled to otherwise under Proviso to Section 6(a), Hindu Minority and Guardianship
Act, 1956.
10
Sharad Chand v. Shanta Bai, AIR 1944 Nag. 266.
11
Martand v. Narayan, AIR 1939 Bom. 305.
12 nd
Diwan, Dr. Paras, Hindu Law, 2 Ed., Orient Publishing Company, New Delhi, 2004. p. 1125.
13
See Santosh Kumar Jalan alias Kanhaya Lal Jalan v. Chandra Kishore Jalan, 2001 Pat. 125.
Chandra Mukherji,14 adoption was not proved as the adoptee all along considered his natural
mother as his mother. He made her his nominee in LIC policy and provident fund. He
attended the shraddha ceremony of his natural father. It was held under the facts, there was
no proof of adoption. But under the modern law as well under old Hindu law, if an unmarried
person, a bachelor or a virgin, adopts a child, the child will have only one parent, adoptive
father or adoptive mother, and will have only one line, parental or maternal, as the case may
be.15

Under the old law in respect of widows adoption the doctrine of relating back applied
and the child was deemed to be the child of her deceased husband. The doctrine of relating
back has been abolished, but the Supreme Court has taken the view the even now the
deceased husband of the widow is the adoptive father of the child.16

Since all ties come into existence in adoptive family, the adopted child cannot marry
any person in the adoptive family whom he would not have married had he or she been a
natural child of the family.17

Guardianship, Inheritance and Maintenance

The adoptive parents are the natural guardians of the adopted minor child, first the
father, then the mother. If the adopted child is less than five years, then the adoptive mother
will have preferential claim to the custody of the child.18

The child has the same right of maintenance as that of the natural born child against
the adoptive parents. In the same way, the child is also under obligation to maintain his
adoptive parents.19 The childs right to maintenance ceases on his attaining majority.20

Right of Inheritance and Partition: Under old law, if an aurasa son was born to the
parents after adopting a son, the adopted son was in an inferior position and took a lesser
share on partition which differed from school to school.21 But now it seems that by virtue of

14
AIR 1998 Cal. 86.
15 nd
Diwan, Dr. Paras, Hindu Law, 2 Ed., Orient Publishing Company, New Delhi, 2004. p. 1124.
16
Sawan Ram v. Kalawati, AIR 1967 SC 1761.
17 nd
Diwan, Dr. Paras, Hindu Law, 2 Ed., Orient Publishing Company, New Delhi, 2004. p. 1124.
18
Ibid.
19 nd
Sharma, Dr. Basant, K., Hindu Law, 2 Ed., Central Law Publications, Allahabad, 2008. p. 215.
20
Nanda Kishore v. Bhupendra, 1966 Cal. 181.
21
Ratha Behera v. Ganga Behra, AIR 2003 (Ori.) 532.
Section 12, he will be equally entitled. The position of child in respect of inheritance under
Hindu Succession Act is the same as that of the natural born child.

Vested Property

Vested Property in the context of clause (b) of the proviso to section 12 means
property in which indefeasible right is created, i.e., on the contingency it can be defeated in
respect of particular property.22

Proviso (b) to Section 12 of the Act provides that any property which vested in the
adopted child before the adoption shall continue to vest in such person subject to the
obligations, if any attaching to the ownership of such property, including the obligation to
maintain relatives in the family of or her birth. Thus, any property that the child inherited
from any relation before adoption will continue to be his property even after adoption.23 For
instance, two brothers X and Y inherited property from their mother. Subsequently, the father
gave away X in adoption. X will continue to be the owner of the property inherited by him
from his mother before adoption.24

It is pertinent to mention here that apart from any obligation as abovementioned, the
child is not obliged to maintain any person towards whom he/she was subject at the time of
adoption. For instance, to maintain ones natural aged parents.25 But it appears that as the
wife continues to be wife even after adoption (in those cases where custom allows adoption
of married boy), his liability to maintain wide would continue. 26 In other words he will be
required to discharge the obligation only out of such property.

Under the proviso by adoption the child would not be divested of any property which
at the time of the adoption is vested in him. Thus, any property which the child has inherited
from any relation would continue to vest in him even after adoption.27

Under Mitakshra School, if there is coparcenary or joint family in existence in the

family of birth on the date of adoption, then the adoptee cannot be said to have vested
property. In the context of proviso (b), vested property means where indefeasible right is

22
Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom. 189.
23
Muthukrishnan v. Sri Palani, (1969) 1 MLJ 129.
24 nd
Diwan, Dr. Paras, Hindu Law, 2 Ed., Orient Publishing Company, New Delhi, 2004. p. 1123.
25
Section 20, Hindu Adoptions and Maintenance Act, 1956.
26
Section 18, Hindu Adoptions and Maintenance Act, 1956.
27
Ibid.
created, i.e., on no contingency it can be defeated. In other words full ownership is conferred
in respect of particular property. There is community of interest in the coparcenary property
which is fluctuating and ownership of the joint family while management thereof alone vests
with the Karta.28

In Santosh Kumar v. Chandra Kishore,29 D had two sons C and S, S was

given in adoption. After sometime S fell apart from his adoptive father and claimed share in
the property of his natural father. The Division Bench Held:

A coparcener has right to partition of the coparcenary property, he can even bring
about separation in status by unilateral declaration of his intention to separate from the family
and enjoy his share of the property after partition. But it is only after such partition that the
property vests in him while the family remains undivided, one cannot predicate the
extent of his share

But property inherited by a son from his father under the Hindu Succession Act as
Class I heir now is held to be his separate property in his hands and not joint family
property.30

Under the Dayabhaga School this is not the law. Hare of a Dayabhaga coparcener in
the coparcenary is not a mere interest. It is a property vested in him. Therefore, if a
Dayabhaga coparcener is given away in adoption, he would continue to retain his share in the
coparcenary property.31

Divesting of Property

Section 12 (c) specifically lays down that the adopted child shall not divest any person
of any estate which vested in him, or her before the adoption. The old Hindu law of divesting
of property on adoption was very complicated and a source of constant litigation. 32 Under the
modern Hindu law this source of litigation and consequent dissentions in Hindu families have
been done away with by laying down that the adopted child cannot divest any person of the
property vested in him or her before adoption. For instance, A died leaving his widow B and
two daughters X and Y. On As death B, X and Y inherited properties of A, each taking 1/3rd

28
V.K. Nalavade v. Ananda, AIR 1981Bom. 109.
29
AIR 2001 Pat. 125 (DB).
30
C.W.T. v. Chandra Sen, AIR 1986 1753.
31
Vasant v. Lattu, AIR 1987 SC 398
32
Beshetappa v. Shivagappa, ILR (1972) Bom. HC 268.
share. This one-third share vests in each of them immediately on the death of A. If now B
adopts P, P cannot divest B, X or Y.33

When an adoption is made by a widow either of a coparcener or a separated member,

then the right of the adopted son to claim the properties as on the date of the adoptive father
by reason of the theory of relation back is subject to the limitation that alienations made prior
to the date of adoption are binding upon the son, if they were for the purposes binding on the
estate. Thus transferees from the limited owners whether they be widows or coparceners in a
joint family, are amply protected. If there was a coparcenary between two brothers A and B
and B dies leaving behind his widow, then even if coparcenary comes to an end by the death
of the surviving coparcener, an adoption validly made by the widow of the deceased
coparcener would have the effect of divesting estate in the hands of the heir of the last
surviving coparcener. Similarly, where after the death of one of the coparceners, the
coparcenary comes to an end by a subsequent partition an adoption made by the widow of the
deceased coparcener, would have the effect of re-opening of the partition enabling the
adopted son to claim a share in the coparcenary properties as if they were still joint.34

In Sawan Ram v. Kalawati,35 a Hindu died in 1948 leaving behind his widow W. W
took her husbands properties as a limited owner. In 1954, W made a gift of some lands to her
grand-niece, B. X, a collateral of A and presumptive reversioner, sued for a declaration that
the gift to B was not binding on him. The trial court gave the declaration prayed for. B
applied against it. Pending Bs appeal in 1959, W adopted Bs son P. Later in the same year
W died. X sued for possession of lands. Since these lands were not in possession of W in
195636 she did not become full owner of these and the reversioners right to challenge
alienations continued, P could succeed to these properties only as heir to Ws deceased
husband. And the Supreme Court held that a son adopted by a widow is also an adopted son
of her deceased husband. Since no property vests in a reversioner, it cannot be said that the
Supreme Courts decision divested the property vested in X. But it did reconstruct the
doctrine of relation back and thus enabled the adopted son of a widow to inherit the property
of her deceased husband.

33 nd
Diwan, Dr. Paras, Hindu Law, 2 Ed., Orient Publishing Company, New Delhi, 2004. p. 1126.
34 nd
Sharma, Dr. Basant, K., Hindu Law, 2 Ed., Central Law Publications, Allahabad, 2008. p. 217.
35
AIR 1967 SC 1961.
36
Section 14 of the Hindu Succession Act, 1956, converts only that widows estate into her absolute property
over which she had possession when the Act came into force.
 The decision in Sawan Rams Caes37 was pleaded for a wider proposition in Sanabai
v. Wasudeo,38 that in an adoption made by a widow in every case, the adoptee becomes the
adopted son of her deceased husband and therefore would divest any person of the property
vested in him after the death of his adoptive mothers husband. It was held that the adoption
did not relate back to the date of the death of the husband and alienation made by the mother
after the adoption was valid unless her power has been restricted by ante-adoption agreement.

In Kishan Baburao Memane v. Suresh Sadhu Memane39 original owner of the

property died in 1919 and his widow gifted some property to defendants in 1948. She adopted
the plaintiff in 1973 and she died in 1975. It was held that the adopted son could not divest
suit property vested in defendants before adoption even presuming that the gift was valid.

In Punithavalli Ammal v. Ramalingam,40 the Supreme Court (Hegde, J.) held that a
son adopted on 13th July, 1956 cannot on strength of the doctrine or fiction of relation back,
divest the adoptive mother of the property she inherited from her deceased husband (who
became the adoptive father of the adopted son) of which she became a full owner with
commencement of the Hindu Succession Act on 17th June, 1956.

Under the provisions of Section 14 of the Hindu Succession Act, widow becomes an
absolute owner, and it is not possible that the child adopted by her is divesting her of the right
which has already been vested in her.41

Adoption by Coparceners Widow

In Ankush Narayan v. Janabai,42 Desai, J. remarked that the adopted son of the
widow of the coparcener will also become a coparcener with the surviving coparceners of the
husband. This view has been approved by the Supreme Court in Sita Bai v. Ram Chandra,43
and Basant v. Duttu.44

37
AIR 1967 SC 1961.
38
AIR 1979 Bom. 181.
39
AIR 1996 Bom. 50.
40
(1970) 1 SCC 570: AIR 1970 SC 1730.
41
Dinaji v. Dadde, AIR 1990 SC 1153.
42
AIR 1966 Bom. 174.
43
AIR 1970 SC 343.
44
AIR 1987 SC 398.
 In Sita Bais Case45 there were two brothers A and B who constituted a Mitakshra
coparcenary. B died in 1930, leaving behind his widow Sita Bai. Sita Bai adopted P on March
4, 1958. A died on March 13, 1958 leaving behind an illegitimate son Ram Chandra. The
Supreme Court held that P became a coparcener with A with effect from March 4, 1958, and
therefore when A died on March 13, 1958 the coparcenary passed on to P by survivorship.
Ramaswami, J., who delivered the judgment of the Supreme Court did not refer to Sawan
Rams Case46 but specifically approved Ankush Narayans Case47 where the Bombay High
Court allowed the adopted son to divest him of adoptive mothers inheritance which had
vested in her absolutely under Section 14, Hindu Succession Act.48

Chinnappa O. Reddy, J., in Basant v. Dattu,49 said that no interest vests in a

coparcener and when on the demise of a coparcener his interest passes on to the widow by
virtue of Section 6, Hindu Succession Act that interest does not become a coparcener in the
coparcenary now headed by her deceased husbands brother. In this light the Ram Chandra
decision is to be understood. Chinnappa O. Reddy, J., observed:

The introduction of a member into a joint family by birth or adoption may

have effect of decreasing the share of the rest of the members of the joint family, but
it clearly does not involve any question of divesting any person of any estate, but with
more members than before. There is no fresh vesting or divesting of estate in anyone.

Rejecting the argument that on the death of a member of a joint family, the property
must be considered to have vested in the remaining members by survivorship, the learned
judge observed that undoubtedly the property passed by survivorship, but there is no question
of any vesting or divesting in the sense contemplated by Section 12 of the Hindu Adoptions
and Maintenance Act. In the subsequent decisions, the High Courts and the Supreme Court
have reaffirmed this position.

Illatom Adoption

In South India in the old Madras Presidency territories among the Reddi, Kamma and
Vokkalingara communities prevails an Illatom adoption as a custom. It is the affiliation of a

45
AIR 1970 SC 343.
46
AIR 1967 SC 1961.
47
AIR 1966 Bom. 174.
48 th
Diwan, Paras, Modern Hindu Law, 20 Ed., Allahabad Law Agency, Allahabad, 2009. p. 252.
49
AIR 1987 SC 398.
son-in-law in consideration of his assistance in management of the family property. No
ceremony is necessary, it has no religious significance. He is not an adopted son in any sense.
He does not lose the right of inheritance in his natural family. He does not become a
coparcener in the family of adoption. But on the death of his adopter father-in-law he is
entitled to all the rights of a son even as against subsequently natural born and adopted son.50

In G. Narayanappa v. Government of Andhra Pradesh,51 Section 4-A of the Andhra

Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 that ceiling area shall be
increased in respect of each major son in a certain circumstance. The question arose whether
an Illatom son-in-law can be regarded as a major son under the provision referred above. The
Supreme Court held that it is not possible to equate an Illatom son-in-law who has attained
majority with a major son for this provision, otherwise an Illatom son-in-law, who does not
lose his rights in his own family would be entitled to double benefit in the sense that the
ceiling area of both his father-in-law and natural father would be increased.52

50
Narasayya v. Rammachandrayya, AIR 1956 AP 209: 55 Audh WR 1; Papanna v. Madappa, (1993) 1 HLR 305
(Kant.).
51
(1992) 1 SCC 197.
52 nd
See Nagpal, Ramesh Chandra, Modern Hindu Law, 2 Ed., Eastern Book Company, Lucknow, 2008. p. 485.
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Diwan, Paras, Modern Hindu Law, 20th Ed., Allahabad Law Agency, Allahabad,

2009Mitra on Hindu Law, 1st Ed., Orient Publishing Company, New Delhi, 2005.

Hindu Laws, Universals, New Delhi, India, 2010

Maynes, Hindu Law & Usage, 12th Ed., Bharat Law House, New Delhi, 1986.

Mulla, Principles of Hindu Law, 15th Ed., N.M. Tripathi Private Limited, Bombay,

1986.

Nagpal, Ramesh Chandra, Modern Hindu Law, 2nd Ed., Eastern Book Company,

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