Children Born To Adoptee Before His Adoption Entitled To Inherit His Property In Adoptive Family: SC [Read Judgment]

The Supreme Court has observed that children who were born to an adoptee before his adoption are entitled to inherit his property in the adoptive family.

The facts of the case are interesting. Laxman and his wife Padmavati already had three sons when he was given in adoption to one Saraswathi in the year 1935. After adoption, a girl child was born to him. After the death of Laxman, a suit for partition was filed by one of the sons.

In the litigation that followed the death of Laxman and his wife, the issue before the High Court was whether the three sons of Laxman born before adoption in 1935, namely, Gangadhar, Dattatraya and Manohar are entitled to inherit the property in the adoptive family of Laxman after his death. Relying upon Section 8 of the Hindu Succession Act, 1956, the High Court held that the son born before adoption is entitled to succeed to the property of their father. The contention of Kalindi, the daughter born to Laxman and Padmavati, 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, was rejected.

The contention taken in appeal, relying on a Bombay HC judgment in Kalgavda Tavanappa Patil v. Somappa Tamangavda Patil, was that though the wife of an adoptee passes with her husband to the adopted family but not the sons born to an adoptee before his adoption. They continue to be members in the family in which their father was naturally born., it was contended. 

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.

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. While dismissing the appeal, the bench took note of provisions of the Act and said:

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.  

Case Name: KALINDI DAMODAR GARDE (D) vs. MANOHAR LAXMAN KULKARNI
Case No.:  CIVIL APPEAL NOS. 6642-6643 OF 2010
Coram: Justices L.Nageswara Rao and Hemant Gupta 

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