R ASHOK Vs. R BHAGAVATHI AMMAL

JUDGEMENT

(1.) THIS appeal on behalf of the first defendant has arisen out of a proceeding in O. S. No. 115 of 1977 of the Court of the Subordinate judge, Nagercoil for declaration of the plaintiff's title and for recovery of possession of the suit property and other reliefs. The suit property originally belonged to one Andiappa Chettiar. He had two daughters valliammal and Umayaparvathi. The plaintiff is the son of Valliammal, umayapar-vathi's husband Jeevarathinam Chettiar had two wives. The first wife is Umaayaparvathi and the second wife is Iyyin Pillai. The first defendant (appellant) is the son of the'second defendant and the second defendant is the son through the abovesaid Iyyin Pillai, the second wife. Andiappa chettiar executed a Will under which, on his demise, Umayaparvathy got a life estate over the suit property and the vested remainder was left with the plaintiff and his brother Rengaswami, who predeceased him. Umayaparvathi, adopted the first defendant as her son and executed a Will with regard to the suit property in his favour.

(2.) ACCORDING to the plaintiff Umayaparvathi was not conrpetent to adopt a son after the death of her husband since her husband jeevarathinam had another wife Valliammal and through him, sons including the plaintiff. She also had no right except the limited estate that had been given to her in the property to execute a Will. The first defendant, however pleaded that Umayaparvathi validly adopted him by observing all formalities and she was perfectly competent to bequeath the suit property in favour of her adopted son, the first defendant for her life interest got enlarged into an absolute estate.

(3.) THE origin of the custom of adoption is lost in antiquity. It has been recognised for the reasons of sashtric belief that a male child alone would discharge the spiritual debts and unless there is a son the spiritual welfare of the soul is in jeopardy. Texts recognize that a male hindu could adopt a son for himself and his wife not only without consulting his wife but even in spite of her opposition but a wife could not adopt a son without being authorised by her husband. An Act to amend and codify the law relating to adoptions and maintenance among Hindus known as the Hindu Adoptions and Maintenance Act, 1956, hereinafter referred to as'the Act' brought about some revolutionary changes in the known law of adoption. THE chapter of the Act dealing with'adoption'in Sec. 5 thereof states that no adoption shall be made after the commencement of the Act by or to a Hindu except in accordance with the provisions contained in the Chapter (viz. Chapter II) and any adoption made in contravention of the said provisions shall be void. After stating about the requisites of a valid adoption and saying that in a valid adoption the person adopted not only has the capacity but also the right to take in adoption; the Act had recognised the capacity of a male Hindu to take in adoption but added that if he has a wife living he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of Competent jurisdiction of unsound mind. THE Act as in Sec. 8, however, recognizes the capacity of a female Hindu to take in adoption stating as follows: "8. Capacity, of a female Hindu to take in adoption: any female Hindu- (a) who is of sound mind, (b) who is not a minor, and (c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption. " After providing as to persons capable of giving in adoption and persons who may be adopted, the Act has enumerated under Sec. 11 other conditions of a valid adoption. It reads as follows: "in every adoption, the following conditions must be complied with: (i) If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption. . . (ii) If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption)living at the time of adoption; (iii) if the adoption is by a male and the person to be adopted is a female the adoptive father is atleast twenty-one years older than the person to be adopted; (iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is atleast twenty-one years older than the person to be adopted; (v) the same child may not be adopted simultaneously by two or more persons; (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption; Provided that the performance of Datta Homam shall not be essential to the validity of an adoption. " Marked departures from the Shastric Law, however, have not completely removed control upon the power of the adoptive father or mother. THE general conditions in Sec. 11 for a valid adoption are besides the conditions, which are enumerated in the provisions preceding that section. Sec. 12 which precede the general conditions of adoption, however, states what are the effects of adoption in these words: "an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes wth 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 severed 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, attaching to the ownership of such property, including the obligation 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 in him or her before the adoption. " THE circumstances in which Umayaparvathy came to adopt the first defendant are not in dispute. Umayaparvathy is the first wife of hers husband Jeevarathinam Chettiar. Through his second wife, Jeevarathinam had a son, the second defendant. THE first defendant, the adopted son of umayaparvathy, is the second defendant's natural son. THE learned single judge has come to the conclusion that though the adoption is by the widow umayaparvathy, the adopted son became a member of the widow's family with the ties of relationship with the deceased husband of the widow as his adoptive father, but, has in the same breath, stated, "this being the effect of adoption, a widow cannot adopt a son if her husband has already a natural son through her or through another wife. To test the validity of an adoption, we have not only to see whether the conditions laid down under Sec. 11 for a valid adoption are complied with but also to see whether the effect of adoption, as provided under Sec. 12 in any way infringes the conditions imposed under Sec. 11. Thus, Secs. 11 and 12 are interlinked and interconnected and Sec. 11 cannot be read in isolation as sought to be made out by the learned counsel for the appellant. Both Secs. 11 and 12 have to be read together and if the effect of adoption is such that it infringes the conditions laid down under Sec. 11, the adoption has to be held invalid. In the present case, the effect of adoption is that the adopted son by the widow is son, not only to her but also to her husband and as the husband has already a natural son in existence through his second wife, the adoption made by the widow infringes the condition laid down under Sec. 11 (l) of the Act and consequently, the adoption has to be held as void. " We have seen above that this Act has particularly introduced a provision in Sec. 8 about the capacity of a female. Hindu to take in adoption a son or a daughter. This section states that any female of sound mind, not a minor and who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind as the capacity to take a son or daughter in adoption: Thus, a widow or a divorced wife has been given the capacity to take a son or daughter in adoption. Can this power to adopt be restricted if there is a child born to the husband of a divorced wife, who married another woman, after divorcing her and can a widow be denied the capacity to adopt a child on the ground that her husband had a child through another wife" Learned single Judge has, on the basis of the principles that appeared to merge from the effect of adoption, as stated in Sec. 12 of the Act, taken the view that a widow whose husband had a son by another woman, cannot adopt. In effect, thus a divorced wife will have no capacity to adopt a son to herself, if her husband remarried and got a child by the second wife. We shall dilate a little further into it, but before we do so, we may have taken notice of the definition of the word'agnate'in Sec. 3 of the Hindu succession Act, 1956, which says, one person is said to be an agnate of another if the two are related by blood or adoption wholly through males and the definition of'cognate', which says, one person, is said to be a 'cognate'of another if the two are related by blood or adoption but not wholly through males. THE word'related'has been defined in this section of the Hindu Succession Act to mean related by legitimate kinship and provided that illegitimate child shall be deemed to be related to their mother and to one another and 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. It is unnecessary to say that sons are class I heirs, both of a male Hindu as well as a female Hindu. But, the Hindu Succession Act, in Sec. 9 says, those in class I shall take simultaneously and to the exclusions of all other heirs and Sec. 10 says, the property of an intestate shall be divided among the heirs in class I of the schedule in accordance with the following rules- Rule 1: THE intestate's widow or if there are more widows than one, all the widows together, shall take one share. Rule 2: THE surviving sons and daughters and the mother of the intestate shall each take one share; Rule 3: THE heirs in the branch of each predeceased daughter of the intestate shall take between them one share and the distribution of the share referred to in the last rule shall be one among the heirs in the branch of the predeceased son, widow or widows together and the surviving sons and daughters equal portions and the branch of predeceased sons the same portion and among the heirs in the branch of the predeceased daughter, the surviving sons and daughters in equal portions. We have proceeded in this case on the footing, since it has been conceded that there would be no use contesting that Umayaparvathy had a limited interest or that she had enlarged her interest in the property because in any case the validity of the adoption alone shall permit the first-defendant to inherit as the son of Umayaparvathy any share in the estate of the family of Andiappa Chettiar. It has not been contested seriously before us that in case adoption is found valid, the second defendant, as the son of Uma-yaparvathy shall be entitled to half of the estate and the remaining half will go to the child of Valliammal. A learned single judge of this Court in Arumugha Udayar v. Valliammal, A. I. R. 1969 Mad. 72, has taken the view that a son adopted by the widow does not become adopted of deceased husband conferring upon him rights of inheritance to the estate of the deceased husband. He, in his detailed study of the law on the subject, found a provision in Sec. 14 of the Adoption Act of some help, which says, where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother and where an adoption has been made with the consent of more than one wife, the senior-most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers. Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child, and where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child. THE Supreme Court, however, in the case of Sawan Ram v. Kalwanti, A. I. R. 1967 S. C. 1761, commenting upon a similar view expressed in a judgment of the Andhra Pradesh High Court in Hanumantha Rao v. Hanumayya, I. L. R. 1966 A. P. 140, Wherein the Andhra Pradesh High Court has observed: 'the Act has made a notable departure from the previous law in allowing a widow to adopt a son or daughter to herself in her own right. Under the Act, there is no question of the adopted child divesting of any property vested in any person or even in herself. THE provisions of sec. 13 make this position clear, by providing that an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. . . . . . . On a fair interpretation of the provisions of Sec. 12 of the Act, we are of the opinion that the section has the effect of abrogating ordinary rule of Mitakshara Law that, as a result of the adoption made by the widow, the adoptee acquires rights to the share of his deceased adoptive father which has passed by survivorship to his father's brothers.' THE Supreme Court has said, 'we are unable to accept this interpretation of the provisions of the Act by the Andhra Pradesh High Court as it appears to us that the High Court ignored two important provisions of the Act and did not consider their effect when arriving at its decision. THE first provision, which is of great significance, is contained in Sec. 5 (l) of the Act, which lays down: 'no adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter and any adoption made in contravention of the said provisions shall be void'. It is significant that, in this section, the adoption to be made is mentioned as'by order to a Hindu'. Thus, adoption is envisaged as being of two kinds. One is adoption by a Hindu and the other is adoption to a Hindu. If the view canvassed on behalf of the appellant be accepted, the consequence will be that there will be only adoptions by Hindu and hot to Hindus. On the face of it, adoption to a Hindu was intended to cover cases where an adoption is by one person, while the child adopted becomes the adopted son of another person also. It is only in such a case that it can be said that the adoption has been made to that other person. THE most common instance will natu-rally be that of adoption by a female Hindu, who is married and whose husband is dead, or has completely and fianlly renounced the world, or has been declared by a court of competent jurisdiction to be of unsound mind. In such a case, the actual adoption would be by the female Hindu, while the adoption will be not only to herself, but also to her husband who is dead, or has completely and fianlly renounced the world or has been declared to be of unsound mind. THE second provision, which was ignored by the Andhra Pradesh high Court is one contained in Sec. 12 itself. THE section, in its principal clause not only lays down that the 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, but in addition, goes on to define the rights of such an adopted child. It lays down that from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. A question naturally arises which is the adoptive family of a child who is adopted by a widow, or by a married woman whose husband has completely and finally renounced the world or has been declared to be of unsound mind even though alive. It is well recognised that, after a female is married, she belongs to the family of her husband. THE child adopted by her must also, therefore, belong to the same family. On adoption by a widow, therefore, the adopted son is to be deemed to be a member of the family of the deceased husband of the widow. Further still, he loses all his rights in the family of his birth and those rights are replaced by the rights created by the adoption in the adoptive family. THE right, which the child had, to succeed to property by virtue of being the son of his natural father, in the family of his birth is, thus, clearly to be replaced by similar rights in the adoptive family and consequently, he would certainly obtain those rights in the capacity of a member of that family as an adopted son of the deceased husband of the widow, or the married female, taking him in adoption. This provision in Sec. 12 of the Act, thus itself makes it clear that, on adoption by a Hindu female who has been married the adopted son or will, in effect, be the adopted son of her husband also. This aspect was ignored by the Andhra Pradesh High Court when dealing with the effect of the language used in other parts of this section'. THE Supreme Court again in the case of Sitabai v. Ramchandra, A. I. R. 1970 S. C. 343: (1970)1 S. C. J. 476: (1970)2 S. C. R. 1:1970 s. C. D. 420: (1970)1 S. C. A. 222, adverted to this aspect of the law and in this judgment has said as follows: 'it is clear on a reading of the main part of sec. 12 and sub-sec (VI) of Sec. 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. THE child altogether ceases to have any ties with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. THE legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. THE result is, as mentioned in Sec. 11 (4) namely where a wife is living, adoption by the husband results in the adotption of the child by both these spouses; the child is not only the child of the adoptive father, but also of the adoptive mother. In case of there being two wives, the child becomes the adoptive child of the senior-most wife in marriage, the junior wife becoming the step-mother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption his wife becomes the stepmother of the adopted child, when a widow or an unmarried woman adopts a child, any husband she marries subsequent to adoption becomes the step-father of the adopted child. THE scheme of Secs. 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes, absorbed in the adoptive family to which the widow belonged. In other words, the child adopted is tied with the relationship of sonship with the deceased husband of the widow. THE other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husband's brother would necessarily be the uncle of the adopted child. THE daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son and in this way, the adopted son would become a member of the widow's family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that Sec. 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But, it is a necessary implication of Secs. 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in Sub-sec. (4) of Sec. 14, a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the'stepfather'of the adopted child. THE true effect and interpretation of Secs. 11 and 12 of Act No. 78 of 1956 therefore is that when either of the spouse adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words, the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Ankush Narayan v. Janabai Rama Sawat, 67 Bom. L. R. 864: A. I. R. 1966 Bom. 174. It follows that in the present case, plaintiff No. 2 suresh Chandra, when he was adopted by Bhagirath's widow, became the adopted son of both the widow and her deceased husband Bhagirath and, therefore, became a coparcener with Dulichand in the joint family properties. After the death of Dulichand, plaintiff No. 2 became the sole surviving coparcener and was entitled to the possession of all joint family properties. THE Additional District Judge was, therefore, right in granting a decree in favour of the plaintiff No. 2 declaring his title to the agricultural lands in the village Palasia and half share of the house situated in the village". THE Supreme Court reiterated this view in the case of g. Hanumantha v. Nagappa, A. I. R. 1972 S. C. 1401: 1972 S. C. D. 231: (1972)3 S. C. R. 360. A Bench of the Karnataka High Court in Babu Nanjappa v. Arunkumar, A. I. R. 1988 Kant. 139, has after taking notice of all relevant authorities on the subject found, on the set of facts that were in the case, that if adoption, after the adoption Act came into force, is found valid, then the question that the adopted son was not born to his father would not be relevant for entitling the adopted child to claim a share in the family property as a coparcener.