Appeal No 728 of 1964
Appeal by special leave from the
judgment and decree dated September 25 1961 of the Punjab High Court in Civil Regular Second Appeal 343 of 1961
section K Mehta and K L Mehta for the appellant
A D Mathur for the respondents
The Judgment of the Court was delivered by Bhargava J
One Ramji Dass died leaving behind a widow Smt
Bhagwani
At the time of his death he owned some land and a house
4 bighas and 17 biswas of the land were mortgaged by Smt
Bhagwani on 2nd May 1948 in favour of respondent No 3 Babu Ram
Later on 22nd August 1949 she executed a deed of gift in respect of the house and the land covering an area of 50 bighas and 14 biswas in favour of Smt
Kala Wanti who was related to her as a grandniece
Sawan Ram appellant instituted a suit for a declaration that both these alienations were without legal necessity and were not binding on him claiming that he was the nearest reversioner of Ramji Dass being his collateral
In that suit Smt
Bhagwni the donee Smt
Kala Wanti respondent No 1 and the mortgagee Babu Ram respondent No 3 were impleaded as defendants
That suit was decreed and Smt
Bhagwani went up in appeal to the High Court
During the pendency of the appeal Smt
Bhagwani adopted respondent No 2 Deep Chand the son of Brahmanand and his wife respondent No 1 Smt
Kala Wanti
A deed of adoption was executed by her in that respect on 24th August 1959
The appeal was dismissed in spite of this adoption
Bhagwani died on 31st October 1959 and thereupon the appellant brought a suit for possession of the house and the land which had been gifted by Smt
Bhagwani to respondent No 1 as well as for possession of the land which she had mortgaged with respondent No 3
It was claimed that Smt
Bhagwani had only a life interest in all these properties because she had divested herself of all the rights in those properties on 22nd August 1949 before the No 30 of 1956 came into force
The adoption of Deep Chand was also challenged as fictitious and ineffective
It was further urged that even if that adoption was valid Deep Chand became the adopted son of Smt
Bhagwani and could not succeed to the properties of Ramji Dass
The suit was dismissed by the trial court holding that the adoption of Deep Chand was valid and that though Smt
Bhagwani had not become the full owner of the property under the  Deep Chand was entitled to succeed to the property of Ramji Dass in preference to the appellant so that the appellant could not claim possession of these pro 689 perties
That order was upheld by the High Court
of Punjab and the appellant has now come up to this Court in appeal by special leave
In this appeal before us only two points have been urged by learned counsel for the appellant
The first point taken is that even though the appellant did not challenge the finding of fact that respondent No 2 was in fact adopted by Smt
Bhagwani that adoption was invalid under clause Ii of section 6 read with sub section
2 of section 9 of the No 78 of 1956 hereinafter referred to as the Act
It is urged that under section 9 2 of the Act if the father of a child is alive he alone has the right to give in adoption though the right is not to be exercised save with the consent of the mother
In this case reliance was placed on the language of the deed of adoption dated 14th August 1959 to urge that Deep Chand was in fact given in adoption to Smt
Bhagwani by his mother respondent No 1 even though his father Brahmanand was alive
This point raised on behalf of the appellant is negatived by the evidence on the record
There is oral evidence of the adoption which has been accepted by the lower courts and it shows that
Deep Chand was given in adoption by both the parents to Smt
Bhagwani
Even the deed of adoption dated 24th August 1959 on which reliance was placed on behalf of the appellant in support of this argument does not bear out the suggestion that Deep Chand was given in adoption by his mother and not by his father
The deed clearly mentions that the parents of Deep Chand have of their own free will given Deep Chand to me the executant today as my adopted son
 This recitation is followed by a sentence which states  Mst
Kala Wanti mother of Deep Chand has put her thumb mark hereunder in token of her consent
 It was from this solitary sentence that inference was sought to be drawn that Deep Chand had been given in adoption by his mother Kala Wanti and not by the father
The deed in the earlier sentence quoted above clearly mentions that Deep Chand had been given in adoption by his parents which necessarily includes the father
This later sentence it appears was put in the deed because section 92 of the Act mentions that the father is not to exercise his right of giving his child in adoption save with the consent of the mother
The consent of the mother having been used in the Act which was applicable the draftsmen of the deed included in it the fact that Deep Chand s mother had actually given her consent and obtained her thumb impression in token thereof
This mention of the consent cannot in these cir cumstances be held to show that it was the mother who in fact gave the child in adoption and not the father
The second point and the one on which reliance is mainly placed by learned counsel for the appellant is that according 690 to him under the Act an independent right of adoption is given to a Hindu female and if a widow adopts a son he becomes the adopted son of the widow only and is not to be deemed to be the son of her deceased husband
Under the Shastric Hindu Law no doubt if a Hindu widow made an adoption after the death of her husband on the basis of consent obtained from him in his lifetime the adopted son was deemed to be the son of the deceased husband also but it is urged that the Act has completely changed this policy
In support of this proposition learned counsel drew our attention to the provisions of section 8 of the Act under which any female Hindu who is of sound mind who is 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 has been granted the capacity to take a son or a daughter in adoption
Then reference was made to section 12 of the Act which runs as follows  12
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 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 owner ship 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
 Reliance was also placed on sections 13 and 14 of the Act which are reproduced below 13
Subject to any agreement to the contrary 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
1 Where a Hindu who has a wife living adopts a child she shall be deemed to be the adoptive mother
691 2 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
3 Where a widower or a bachelor adopts a child any wife whom he subsequently marries shall be
deemed to be the stepmother of the adopted child
4 Where a widow or an unmarried woman adopts a child any husband whom she marries subsequently shall be deemed to be the stepfather of the adopted child
 On the basis of these provisions it was urged that the scheme of the Act is that when a Hindu female adopts a child he becomes the adopted son of the Hindu female only and does not necessarily become the son of the deceased husband if the Hindu female be a widow
Emphasis was laid on the fact that even an unmarried female Hindu is permitted to take a son or daughter in adoption and in such a case naturally no question would arise of the adopted child becoming the adopted son of a Hindu male also
In this connection reliance was placed on a decision of the High Court of Andhra Pradesh in Nara Hanumantha Rao vs Nara Hanumayya and Another1
For convenience the facts of that case may be briefly reproduced as given in the head note to indicate the question of law that fell to be decided
A and his two sons B and C were members of a Hindu joint family
B died on 26th August 1924 leaving behind his widow D A died in the year 1936
On 17th June 1957 D adopted E and E filed the suit against C and his son F for partition and separate possession of a half share in the properties
The trial court held  1 that there is a custom among the members of the Kamma caste to which the parties belonged whereby the adoption of a boy more than 15 years old is valid and 2 that the adoption of E could not have the result of divesting the interest of B that had vested in C long prior to the date of the adoption having regard to the provisions of the Act
In appeal the High Court upheld the decision of the trial court on both the points that were raised
The existence of the caste custom by which boys aged more than 15 years could be adopted was held to be sufficiently proved by evidence
Then the High Court proceeded to consider the provisions of the Act to find out whether E could claim a share in the property of B the deceased husband of D who had adopted him
The learned Judges of the High Court enumerated the contents of the various relevant sections of the Act and then proceeded to consider whether E could claim a right in the property left by B The Court after reproducing the provisions of section 12 of the Act held  1 1964 I Andhra Weekly Reporter 156
69 2 Under the terms of the above section an adopted child is deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption
Relying on the words for all purposes it is argued that the adopted child has the same rights and privileges in the family of the adopter as the legitimate child
From the language of the section it is manifest that an adopted child is deemed to be the child of his or her adoptive father or mother
The use of the word or between the words father and mother  makes this abundantly clear
The use of the expression with effect from the date of adoption as also the language of clause c of the Proviso are important
The expression with effect from the date of adoption introduces a vital change in the pre existing law
Under the law as it stood before the Act came into operation the ground on which an adopted son was held entitled to take in defeasance of the rights acquired prior to his adoption was that in the eye of law his adoption related back by a legal fiction to the date of death of his adoptive father
The rights of the adopted son which were rested on the theory of relation back can no longer be claimed by him
This is clear from the specific provision made in section 12 that the rights of the adopted are to be determined with effect from the date of adoption
Clause c of the Proviso to section 12 lays down the explicit rule that the adoption of a son or daughter by a male or female Hindu is not to result in the divesting of any estate vested in any person prior to the adoption
 When finally expressing its opinion on the question of law the Court said  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 section 13 make this position clear by providing that an adoption does not deprive the adoptive father or mother of the powers to dispose of his or her property by transfer inter vivos or by will
On a fair interpretation of the provisions of section 12 of the Act we are of the opinion that the section has the effect of abrogating the 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 39 6 adoptive father which has passed by survivorship to his father s brothers
 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 section 5 1 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 or 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 Hindus and not 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 naturally be that of adoption by a female Hindu who is married and whose husband is dead or has completely and finally 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 finally 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 section 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 what 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 recognized 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 694 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 section 12 of the Act thus itself makes it clear that on adoption by a Hindu female who has been married the adopted son 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
It may however be mentioned that the conclusion which we have arrived at does not indicate that the ultimate decision given by the Andhra Pradesh High Court was in any way incorrect
As we have mentioned earlier the question in that case as whether E after the adoption by D the widow of B could divest C of the rights which had already vested in C before the adoption
It is significant that by the year 1936 C was the sole male member of the Hindu joint family which owned the disputed property
B died in the year 1924 and A died in 1936
By that time the Hindu Women s Rights to Property Act had not been enacted and consequently C as the sole male survivor of the family became full owner of that property
In these circumstances it was clear that after the adoption of E by D E could not divest C of the rights already vested in him in view of the special provision contained in clause c of the proviso to section 12 of the Act
It appears that by making such a provision the Act has narrowed down the rights of an adopted child as compared with the rights of a child born posthumously
Under the Shastric law if a child was adopted by a widow he was treated as a natural born child and consequently he could divest other members of the family of rights vested in them prior to his adoption
It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in clause c of the proviso to section 12 and section 13 of the Act were incorporated
In that respect the rights of the adopted child were restricted
It is to be noted that this restriction was placed on the rights of a child adopted by either a male Hindu or a female Hindu and not merely in a case of adoption by a female Hindu
This restriction on the rights of the adopted child cannot therefore in our opinion lead to any inference that a child adopted by a widow will not be deemed to be the adopted son of her deceased husband
The second ground taken on behalf of the appellant also therefore fails
The appeal is consequently dismissed with costs
YP Appeal dismissed


Summary:
A widow whose husband had died before the Hindu Succession Act came into force adopted respondent 2 after the enforcement of the Act
On the widow s death the appellant the nearest reversioner of her husband filed a suit challenging the adoption
The trial court dismissed the suit which in appeal the High Court upheld
In appeal to this Court the appellant contended that i the adoption was invalid under ii of section 6 read with section 9 2 of the as the son was given in adoption by his mother even though his father was alive and ii under the  an independent right of adoption is given to Hindu female and if a widow adopts a son he becomes the adopted son of the widow only and was not deemed to be the son of her deceased husband
HELD  The appeal must be dismissed
i The evidence on record established that the son was given in adoption by both the parents
The deed of adoption mentions that the had been given in adoption by his Parents which necessarily includes the father
The following sentence stating that the mother of the boy had put her thumb mark hereunder in token of her consent  was put in the deed because section 92 of the Adoptions and Maintenance Act mentions that the father is not to exercise his right of giving his child in adoption save with the consent of the mother
The consent of the mother having been used in the Act which was applicable the draftsmen of the deed included in it the fact that the boy s mother had actually given her consent and obtained her thumb impression in token thereof
689D H ii The provision in section 12 of the Act makes it clear that on adoption by a Hindu female who has been married the adopted son will in effect be the adopted son of her husband also
Under the Shastric Law if a child was adopted by a widow he was treated as a natural born child and consequently he could divest other members of the family of rights vested in them prior to his adoption
It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that the provisions in clause c of the proviso to section 12 and section 13 of the Act were incorporated
In that respect the rights of the adopted child were restricted
It is to be noted that this restriction was placed on the rights of a child adopted by either a male Hindu or a female Hindu and not merely in a case of adoption by a female Hindu
This restriction on the rights of the adopted child cannot therefore lead to any inference that a child adopted by a widow will not be deemed to be the adopted son of her deceased husband
694B CF H Nara Hanumantha Rao vs Nara Hanumayya and another 1964 1 Andhra Weekly Reporter 156 discussed