FAMILY LAW : II

KRISHNA LAL AND ORS. VS. RAJA RAM AND ANR.

VEDANT CHOUDHARRY
DIVISI0N-B PRN-18010224116 BATCH-2018-23

SYMBI0SIS LAW SCH00L, N0IDA

SYMBI0SIS INTERNATI0NAL (DEEMED UNIVERSITY),

PUNE. IN
MARCH, 2020

UNDER THE GUIDANCE 0F

PR0FESS0R DEEPALI RANI SAHOO
ASSISTANT PROFESSOR
SYMBI0SIS LAW SCHOOL, N0IDA

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 INTRODUCTION
This case is related to the the provisions of Sections 12(c) and 13 of the Hindu Adoption and
Maintenance Act,1956 1which talks about the rights of the adoptive parents to dispose of their
property which do not really create a clog on the rights of the adoptive father in making
alienation of the property even after an adoption is taken, but that is in respect of his personal
property and not in respect of his joint ancestral property which he has inherited from his
father or fore-fathers. As the whole principle regarding that when the child is adopted he or
she also gets the family of adoptive father his rights are at par with the rights of a natural born
son or daughter in the case of ancestral property and retains coparcener’s status, the father
reverts back to the position of a 'karta' in a joint family undivided coparcenary property,
where without legal necessity and family necessity, he cannot alienate the adopted son's share
in the ancestral joint family coparcenary property. He can, by virtue of Sections 12(c) and 13
of the Hindu Adoption and Maintenance Act, 1956 alienate his share to the undivided family,
which he has done in the facts of the case. Furthermore the adoption which was made by the
adoption deed Ex.1 and we are of the considered opinion that on a question of fact what the
First Appellate Court has arrived at by way of a finding of fact about the taking of a valid
adoption is not assailable, there being no scope for further . interference in the special appeal
which is in the nature of second appeal before us.

BACKGROUND OF THE CASE

The case is a special appeal directed against the judgment of single judge of a civil court of
first appeal and is herd before the divisional bench of Rajasthan High Court and is a landmark
judgment with respect to the right of the adoptive children with respect to his inheritance of
the ancestral property and the rights of the adoptive parents to dispose of their personal
property,2 the defandent in this case Raja ram firstly filed a suit for cancellation of the sale
deed executed by the Plaintiff/Appellant in favour of his nephews for the sale of his share in
a coparceners property, the defendant had contended that he is a adoptive son of the plaintiff
and he has no right to dispose the ancestral property by the virtue of Section 13 of the Hindu
Guardianship and Maintenance act, 1956. It was not only held by the civil court that the
adoption is valid in law and defendant is a legally adopted son of Plaintiff but also held that
the sale deed executed by the plaintiff/appellant in favour of his nephews also stands null and
void and will not affects the right of the defendant Raja Ram as regards the half portion of the
agricultural land described and also the half share in the houses situated at Manaksar and
Suratgarh belonging to the Defendant Raja Ram and defendant No. 4 Pola Ram jointly.

The defendant Raja Ram also contended inter-alia that he is a legally adopted son of Pola
Ram and his adoptive father adopted him by a registered deed with full ceremony according
to law. However countering to that claim in the joint written statement the Plaintiffs
1
S. 12(c) and 13 of the Hindu Adoption and Guardianship Act, 1956,
2
Philip A. Fisher, Review: Adoption, fostering, and the needs of looked-after and adopted children, Child
Adolesc Ment Health. 2015 Feb; 20(1): 5–12..

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challenged this adoption that during the pendency of the suit Pola Ram died and henceforth
the adoption has not happened yet. It was also pleaded that Pola Ram never adopted the
plaintiff and no customary rites were performed. No adoption deed was executed. The
plaintiff never lived with Pola Ram. It .was averred that defendant No. 4 Pola Ram never got
the plaintiff Raja Ram married, but he was actually got married by his own natural father
Hajari Rain. So the defendant has no share in the property of Pola Ram.

Issues

1. Whether the defendant is a adopted son of Pola Ram and does he acquired rights of
the property of Pola Ram.
2. Whether the property in dispute was a co-parcenary property or whether it was a
personal property of Pola Ram.
3. Whether the Will executed by Pola Ram was invalid and was executed under undue
influence and was it executed without consideration.

Judgment

The Hon’ble High court while dismissing the special appeal held that the adoption which was
made by the adoption deed is valid and the court is of the considered opinion that on a
question of fact there being no scope for further interference in the special appeal
furthermore, it was held that the sale executed by Plaintiff No. 4 Pola Ram in favour of
Plaintiff/ Appellant No. 1 and 2 was null and void as the joint family property was sold
without any legal necessity and family necessity. It was further held that the Will executed by
Plaintiff No. 4 Pola Ram in favour of plaintiff No. 3 Nathu Ram will not affect the rights of
the Defendant Raja Ram as regards the half portion of the agricultural land also half share in
the houses situated at Manaksar and Suratgarh belonging to the plaintiff and defendant No. 4
jointly. The Hon’ble High court was in in full agreement with the learned Single Judge that
the defendant Is entitled to only half share in the joint ancestral property, which Pola Ram
had, to which the adopted child Raja Ram was a member by virtue of his adoption.

ANALYSIS OF THE JUDGMENT

The counsel for the Appellant Mr. Bhandari conceded that Ex.1, the adoption deed was a
written and registered document, inasmuch as, it was a document in writing and registered as
well, and as such no oral evidence could be given by way of rebuttal of any recital as given
out in the said deed. The further lacking of essential ingredients of adoption under law would
show that there was no valid adoption.3 The document however lacked in three essential
respects so as to make it invalid in accordance with law: (i) it was not singed by the natural

3
Archana Parashar, Redefining family law in India : essays in honour of B. Sivaramayya, vol 3, p- 109.

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father: (ii) there was no mention that mother's consent wastaken: (iii) there was no mention
regarding giving and taking ceremony. Thus, Mr. Bhandari contended that the adoption deed
could not confer any valid adoption and there was no iota of oral evidence also on the point
that mother's consent was ever taken. However The first appellate Judge was satisfied on
appreciation of facts that there was a giving and taking ceremony and defendant No. 4 Pola
Ram in the deed of adoption clearly expressed his unequivocal consent of Raja Ram being
taken in adoption by him, his wife having predeceased him at that point of time and it was a
registered document conferring status of an adopted child on the plaintiff Raja Ram. In
Dharma Shamrao Agalawe v. Panduraiv Miragu Agalawe 4 it was held that if a son
subsequently born to or adopted by the sole surviving co-parcener or a new co-parcener is
inducted into the family on an adoption made by a widow of a deceased coparcener, an
alienation made by the sole surviving coparcener before the birth of a new coparcener or the
induction of a coparcener by adoption into the family could not bar a sale, mortgage or gift
made by the sole surviving coparcener prior to the birth of a new coparcener or induction of a
coparcener by adoption.

Sections 12(c) and 13 of the Hindu Adoption and Maintenance Act, 1956 do not really create
a clog on the rights of the adoptive father in making alienation of the property even after an
adoption is taken, but that is in respect of his personal property and not in respect of his joint
ancestral property which he has inherited from his father or fore-fathers. 5 That being so, as
and when an adoption is taken, an adopted child gets into the adoptive father's family and
from the sole surviving coparcerner's status, the father reverts back to the position of a 'karta'
in a joint family undivided coparcenary property, where without legal necessity and family
necessity, he cannot alienate the adopted son's share in the ancestral joint family co-parcenary
property. He can, by virtue of Sections 12(c) and 13 of the Hindu Adoption and Maintenance
Act, 1956 alienate his share to the undivided family, which he has done in the facts of the
case.

In State of Orissa vs. Sadhunsu Sekhar Misra6 the Hon’ble Supreme Court held that a
decision is an authority for what it actually decides and what is the essence in a decision is its
ratio and not observations made therein nor what logically follows from the various
observations made in it. an adoption is made after the joint family property has already
passed Into the hands of the sole surviving coparcener, there could be again a creation of a
fresh joint coparcenary alongwith the adopted son and that being so, the adopted son would
definitely be entitled to a share in the joint family property. The property, therefore, again
becomes an ordinary Hindu undivided coparcenary property and reverts back from the status
of sole surviving coparcenary property to an ordinary joint family coparcenary property.

4
Dharma Shamrao Agalawe v. Panduraiv Miragu Agalawe, [1988]2SCR1077.
5
Dr, Parvita Panda, Right to Maintenance of Hindu Womenunder Hindu Adoption and Maintenance Act,
Volume-5, Issue-1, January -2016 • ISSN No 2277 – 8160.
6
State of Orissa vs Sadhunsu Sekhar Misra, (1970)ILL J662SC.

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 CONCLUSION

Section 13 of the Hindu Adoption and Maintenance Act made it amply clear that an adoption
did not deprive the adoptive father or mother of the power to dispose of his or her property by
transfer inter vivos. That being so, there being no agreement to the contrary, Pola Ram could
be vested with the powers to dispose of the property by transfer inter vivos, which he has
done in favour of the defendants No. 1 and 2. He could also make out a Will and there was no
impediment in this regard as well. The property being personal property of Pola Ram when
the joint undivided coparcenary ceased to exist, he had every right to effect sale of the
property and even had every right to make a Will in respect of the said property. Pola Ram
was the sole surviving coparcener and was having personal property when the adoption was
allegedly taken place on 1.1.1962. Section 13 of the Hindu Adoption and Maintenance Act
specifically ensured that the right to effect sale or disposition of the property was in no
manner lost because of the adoption. That being so, the Will and the sale deed dated
11.7.1968 were valid documents conferring rights on the purchaser in respect of the sale deed
as well as the legatee under the Will.

The Supreme Court held that the joint family property does not cease to be joint family
property when it passes on the hands Of the sole surviving coparcener 7. If a son is born to the
sole surviving coparcener, the said property became the joint family property in his hands and
in the hands of his son. This position is stated with regard to natural born son to a sole
surviving coparcener. Mr. Bhandari sought to contend that it could not be the same with
regard to an adopted son since in the case of adopted son Sections 12(C) and 13 of the Hindu
Adoption and Maintenance Act, 1956 would stand on the way. We do not agree with such a
proposition' that if an adoption is taken by the sole surviving coparcener, there is no creation
of a fresh joint family coparcenary in between the adoptive father and the adopted son. In
Dina Ji and Ors. v. Daddi and Ors 8 it has been clearly stated that if a son is subsequently
born to or an adoption is taken by the sole surviving coparcener or a new coparcener is
inducted into the family on an adoption being made by the widow of a deceased coparcener,
the entire perspective changes. However, an alienation made by the sole surviving coparcener
before the births of a new coparcener or the induction of a coparcener by adoption into the
family, whether by way of sale, mortgage or or gift made by the sole surviving coparcener
prior to the birth of a new coparcener or induction of a coparcener by adoption.

7
A.K. Antulay v. R.S. Nayak, 1988CriL J1661.
8
Dina Ji and Ors. v. Daddi and Ors, AIR1990SC1153.

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