Children born to adoptee before his adoption has full right to inherit property of the adoptee in the Adoptive Family

Harshit Sharma | Amity Law School, Madhya Pradesh | 10th February 2020

KALINDI DAMODAR GARDE (D) BY LRS. V/s. MANOHAR LAXMAN KULKARNI & ORS. ETC. CIVIL APPEAL NOS. 6642-6643 OF 2010

FACTS OF THE CASE

1. 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 Saraswati.
2. 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 11th March, 1987. The matter was taken at various stages thereafter. The revision filed by Manohar, son of Laxman, was dismissed on 8th September, 1992. Aggrieved, Manohar had filed writ petition. 
3. Padmavati, wife of Laxman, died on 10th October, 1992 leaving a registered Will dated 21st May, 1987 in which she had bequeathed her share to her 3 sons which were born prior to the date of adoption. On 20th 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.
4. 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.

ISSUES RAISED

1. 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 death? 

RULING OF THE COURT/THE COURT HELD THAT

Dismissing the appeal and confirming the order of High Court, the Hon’ble Supreme Court finds the following observations: 

1. “The bench comprising Justices L. Nageswara Rao and Hemant Gupta noticed that the full bench of the High Court in Martand Jiwajee Patil & Anr. v. Narayan Krishna Gumast-Patil had held that that the adoptee will remain the father of the son. It said that the Judgment in Kalgavda Tavanappa Patil has not been accepted even under the Hindu Law.”
2. “It further observed that since the succession has opened after the death of Laxman on 10th January, 1987, succession has to be in accordance with the Hindu Succession 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. It further noted that there is no provision of denying the rights of succession to the natural born son of an adoptee father” and stated:

“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.”