DHARAM SINGH Vs. BAKHSHI

JUDGEMENT

(1.) The lower appellate Court has written a vary scrappy judgment in a very interesting case under the Hindu Law. The father of the three defendants- appellants, one Sarnam by name, was adopted by Kura. This is now a finding of fact and cannot be questioned in second appeal. I shall consider the facts of the case accepting the finding. There was disagreement between the trial Court and the lower appellate Court. It is another finding of fact which I accept because it has been so held by both the Subordinate Courts that plaintiff was adopted by Kura after the death of his natural father Mehru. On this ground the trial Court held that Sarnam having inherited a share in his natural father's property cannot be divested of that property on adoption by Kura. The plaintiff who, as is usual, came to Court on false allegations, alleged falsely that the defendants had never been in possession of the property and that their father ceased to be in possession on his adoption. This case was quite false. Even after the adoption Sarnam had continued to share in the profits of the family of his birth.

(2.) The trial Court was of opinion that the property of Mehru once having been invested in the name of Sarnam, Sarnam could not be divested of such property on his adoption. The lower appellate Court disagreed with this view and, in myopinion, correctly. There was no vesting of any property of Sarnam on Mehru's death. Sarnam at his birth got a vested interest in the family property being a Hindu son. It therefore makes no difference as to extinction of a person's rights in his natural family whether he be adopted during the lifetime of his natural father or after the death of his natural father. The lower appellate Court has avoided the view of divesting the property unnecessarily. Every Hindu son at birth is vested with joint ancestral property and he is divested on adoption. With his usual lucidity, Mookerjee, J., has thus enunciated the law on the subject of adoption in the case of Birbhadra Nath V/s. Kalpataru Panda (1905) 1C LJ 388. This view [that is of their Lordships of the Privy Council in Kali Komul Mosumdar V/s. Uma Shankar Moitra (1884) 10 Cal 232 is founded on the proposition that the theory of adoption involves the principle of complete severance of the child adopted, from the family in which he is born, and his complete substitution into the adopter's family, as if he were born in it. To put the matter in another way: an absolute adoption appears to operate as birth of the boy in the family of adoption and as civil death in the family of birth, having regard to the legal consequences that are incidents of such adoption.

(3.) On Sarnam's adoption therefore the rights of the parties would be governed as if Sarnam had died at that moment with regard to the natural family and been born to his adoptive father. He will therefore be divested of his rights in the property of his natural family and vested with rights in the family of his adoptive father. So far I agree with the opinion of the lower Court though not in the reasons given.