Child Adopted By A Widow Not Entitled To Inherit Her Deceased Husband's Property: Bombay High Court

A single judge Justice Shrikant D. Kulkarni observed,

"an adopted son may have rights in future in the property which the family may acquire after his adoption, with regard to the property which has vested in any particular person before his adoption, the adoption does not vest in him any rights with regard to that property."

The Bench was ceased of a property dispute whereby an adoptive son had sold properties belonging to the late husband of his adoptive mother. Shivaji was adopted in the year 1973 by Kausalyabai. Her husband Sopanrao died in the year 1965. They had one daughter, Parwatibai. Both, mother and daughter, objected to Shivaji's claim over the property.

Shivaji contended that he shall be deemed to be a child of his adoptive parents. He submitted that all the ties of the child in the natural family will stand terminated from the date of adoption, except the ties of blood for the purpose of marriage and claimed the same right, privilege and obligation in the adoptive family.

Relying on Hiralal Vs. Board of Revenue, AIR(RAJ)-2001-2001-0-318, he stated that if the widow of a co-parcener adopts a son, the adopted son becomes a co-parcener with surviving co-parceners of the adoptive father and consequently, the same interest which his adoptive father would have in the property had he been living. The child adopted by the widow of the co-parcener became the child of deceased co-parcener from the date of death of the co-parcener.

However, the High Court noted that the principle of relation back as a result of the adoption has been done away with by section 12 of the Hindu Adoptions and Maintenance Act, 1956. It said,

"Under the old Hindu law the adoption had the effect of relating the adoption back to the date of death of the father. The adopted son was deemed to be in existence at the time when the father died. That fiction of relation back as a result of adoption is no more available in view of Section 12 of said Act."

It added,

"After coming into force of Hindu Adoptions and Maintenance Act, 1956, the child adopted by the widow of the co-parcener, does not get the status of the child of deceased co-parcener from the date of death of co-parcener. As such, adopted son/original defendant No.1 cannot claim share in the suit property, by stepping into the shoes of his late father who died long before in the year 1965."

The single judge regarded that it is an admitted position that the husband of Kausalyabai died in the year 1965 which is much before the adoption of son Shivaji. She has adopted Shivaji vide adoption deed dated March 24, 1993. Therefore, it is clear that adopted son Shivaji was not in picture when her husband died in the year 1965, intestate. The succession opens for the first time in the year 1965. The court held that according to Section 8 of the Hindu Succession Act, 1956, Kausalyabai being widow and Parwatibai being daughter would get one half share each in the suit property left behind by Sopanrao.

Further, the court added that since, "Kausalyabai died during pendency of the suit in the year 2013, her ½ share would devolve upon her daughter Parwatibai and adopted son Shivaji. In view of section 15 of the Hindu Succession Act, 1956. Having considered this legal position, plaintiff No. 2/daughter Parwatibai would get her share of ½ from the share of her mother which comes to ¼ and total share ¾ (½ + ¼ ) whereas adopted son Shivaji would get ¼ share in the property."

The judge further held the sale deeds between entered into by Shivaji as null and void to the extent of the 3/4th share of Parwatibai.

Case Title : Banabai and others Vs. Wasudeo, Rajesh and ors v Parwatibai and ors

Citation: 2022 LiveLaw (Bom) 123

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