Case: KALINDI DAMODAR GARDE(D) BY LRS Vs. MANOHAR LAXMAN KULKARNI AND ORS

sections 15 and 16 of the Hindu Succession Act. xx xx xx 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 husbands 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 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. AIR 1928 PC 87 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 Deshmukh (1978) 16 Mh.L.J. 357 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. Deos contention that the daughter, the defendant, was entitled to ?th 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 ?th 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 8 Shivawwa AIR 1989 Karnataka 45 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 daughters 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…………… 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. Since the succession has opened after the death of Laxman on 10 th 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 Deo (1981) 4 SCC 613    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 Act14. The principle that the Act will be applicable on the date succession opens is well settled15. 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 alone16. 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 heirs20. Similar view has been taken by the Division Bench of the Karnataka High Court in a judgment reported as Smt. Neelawwa v. Smt. 7Shivawwa AIR 1989 Karnataka 45 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 daughters 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……………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.