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

2. The facts are that Laxman was given in adoption to Saraswati on 2 nd November, 1935. Laxman had three sons Gangadhar aged 4 years 5 months; Dattatraya aged 2 years 5 months and Manohar aged 9 months at the time of his adoption. After adoption, Laxman and his wife Padmavati joined the family of Saraswati along with their 3 sons. It was in the year 1938, daughter Kalindi was born to Laxman and Padmavati. The natural father of Laxman, Pandurang effected partition in respect of his joint family property on 30 th December, 1948 wherein Laxman was excluded from any share as he had gone in adoption to Saraswati3. Laxman died on 10 th January, 1987. Saraswati had predeceased Laxman. After the death of Saraswati, Laxman inherited the property of Saraswati which is the subject matter of the present appeals. After the death of Laxman, his daughter Kalindi applied for effecting the change in the village revenue record for inclusion of her mother Padmavati and herself as owners. The mutation was entered on 11 th March, 1987. The matter was taken at various stages thereafter. The revision filed by Manohar, son of Laxman, was dismissed on 8 th September, 1992. Aggrieved, Manohar had filed the writ petition4. Padmavati, wife of Laxman, died on 10 th October, 1992 leaving a registered Will dated 21 st May, 1987 in which she had bequeathed her share to her 3 sons which were born prior to the date of adoption. On 20 th October, 1996, Gangadhar, one of the sons of Laxman and Padmavati, died. Thereafter, Dattatraya, the second son filed a suit for partition, separate possession and mesne profit against forcible possession by Kalindi. This suit was decreed on 13 th November, 2004. The main contest of the parties was on the question as to whether the three sons of Laxman born before adoption in 1935, namely, Gangadhar, Dattatraya and Manohar are entitled to inherit the property in adoptive family of Laxman after his death5. In a suit by Kalindi, the daughter born to Laxman and Padmavati, she had taken a plea that the sons born before adoption have no right, title or interest in the properties left behind by Laxman and she being a daughter born to Laxman after his adoption would inherit the entire property along with Padmavati, her mother. Both the matters were taken up for hearing together wherein the learned Single Bench relying upon Section 8 of the Hindu Succession Act, 1956held that the son born before adoption is entitled to succeed to the property of their father.

Reasoning:
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.