TMI Blog2001 (3) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... of Nanjappa Raos elder brother, came to be adopted by both the widows and the factum of adoption was also evidenced by an Adoption Deed written on the same day and, therefore, he became the absolute owner of the suit schedule properties. The adoption so made was claimed to have been acted upon by entering the name of the plaintiff in the revenue records as a son of late Nanjappa Rao and that he had been managing all the properties thereafter. Sharadamma, the senior widow, died on 25.5.1984 after prolonged illness. Since disputes arose between the plaintiff and Sharadamma on one hand and the junior widow, Neelamma, on the other hand, the junior widow in collusion with another brother of Nanjappa Rao by name B.S. Krishnaoji Rao and his wife started giving trouble to the plaintiff by projecting a claim of adoption of their daughter by name Vijayalakshmamma in the year 1970 when she was nine years old but reduced into writing and affirmed under a registered deed dated 26.3.1984, and further said to be fortified by a Will dated 28.3.1984 jointly claimed to have been executed by late Sharadamma and Neelamma. After asserting a claim for partition of his share of the properties by issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adoption ceremony. P.Ws. 4 5 were also said to have attested the adoption deed Exb. P.1, the unregistered deed of adoption of the plaintiff. Exbs. P.1 to P.5 were also marked as material documentary evidence. To prove the claim of the defendants, D.Ws. 1 to 5 were examined in addition to marking Exbs. D.1 to D.7. On a consideration of the oral and documentary evidence on record, the learned Trial Judge decreed the suit as prayed for, after adverting to in great detail the overwhelming materials and evidence on record, rejecting at the same time the perfunctory evidence placed on record by the defendants. Aggrieved, the appellants pursued the matter in appeal before the High Court and, as noticed earlier, the Division Bench affirmed the findings of the learned Trial Judge on the question of factum of adoption of the plaintiff while equally confirming the findings that the defendants miserably failed to prove the case projected by them of adoption of the first defendant. The registered deed of adoption (Exb.D.2) and the Will (Exb. D.1) were held to have not been proved in respect of their genuineness and due execution as well by examining either the Attestors or by taking any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies left behind by, late Nanjappa Rao. The judgment of the Courts below was challenged only on these legal submissions and not based on any challenge to the factum of proof of adoption of the plaintiff or on the question or proof or the legality and propriety of the adoption of first defendant projected by the appellants but rejected concurrently by the Courts below. The learned counsel appearing for the respondent adopted the reasoning of the Courts below to justify the conclusions arrived at and sought to sustain the decree passed in favour of his client. There has been no cross appeal on the part of the plaintiff to challenge the modification in the decree allowed by the High Court by reducing the share of the plaintiff from 3/4th to one half only. To have a proper appreciation of the legal submissions of the principles of law pleaded on behalf of the appellants, it becomes necessary to have a proper perspective of the position of law governing the matter as on the date of coming into force of the Hindu Adoption and Maintenance Act, since the Act in question was not only to amend but also codify the law relating to adoption and maintenance comprehensively dealing with every p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say, she is only an instrument through whom the husband is supposed to act. Mulla in his book Principles of Hindu Law stated that she acts as a delegate of her husband. The Judicial Committee in Balusu Gurulingaswami vs Balusu Ramalakshmamma, ILR 22 Mad. 398 at p.408 (PC), pointed out that if the consent of the husbands kinsmen has been obtained, the widows power to adopt is co-extensive with that of her husband. It is, therefore, clear that a Hindu widow in making an adoption exercises a power which she alone can exercise, though her competency is conditioned by other limitations which we shall consider at a later stage. Whether she was authorised by her husband to take a boy in adoption or whether she obtained the assent of the sapindas, her discretion to make an adoption, or not to make it, is absolute and uncontrolled. She is not bound to make an adoption and she cannot be compelled to do so. But if she chooses to take a boy in adoption there is an essential distinction between the scope of the authority given by her husband and that of the assent given by the sapindas. As the widow acts only as a delegate or representative of her husband, her discretion in making an adoption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient guarantee against any capricious action by the widow in taking a boy in adoption. In Guramma Bhratar Chanbasappa Deshmukh Ors., etc. Vs. Mallappa Chanbasappa Anr., etc. (AIR 1964 SC 510), the very learned Judge had an occasion to deal with the object of adoption and the limitations, if any, on the said power and held as follows: 8. These texts ex facie do not equate a son in existence with a son in the womb. If the authors of the said treatises intended to equate the one with the other, they would not have left in the doubt, for such an extension of the doctrine would introduce an element of uncertainty in the matter of adoption and defeat, in some cases, the religious object underlying adoption. It is now well settled that the main object of adoption is to secure spiritual benefit to the adopter, though its secondary object is to secure an heir to perpetuate the adopters name. Such being the significance of adoption, its validity shall not be made to depend upon the contingencies that may or may not happen. It is suggested that an adoption cannot be made unless there is certainty of not getting a son and that if the wife is pregnant, there is a likelihood of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y decisions. No other decision has been brought to our notice either taking a different view or throwing a doubt thereon. All textbooks-Mayne, Mulla, Sarkar Sastri-accepted the correctness of the said view without any comment. The question as to how the adoption could or ought to be made when a Hindu male dies leaving behind more than one widow came to be considered by this Court in Eramma and others vs Muddappa (AIR 1966 SC 1137), with particular reference to the Mysore Hindu Law Womens Rights Act 1933, stipulating that in the absence of an express prohibition in writing by the husband, his widow, or where he has left more widows than one, the seniormost of them shall be presumed to have his authority to make an adoption, and this position was also found to be in conformity with law in the Bombay State. In Tehsil Naidu and another Vs Kulla Naidu and others (AIR 1970 SC 1673) this Court held that the requirement of consent from a sapinda for adoption by a widow was considered to be necessitated only when the widow has not obtained the consent of her husband in his lifetime. While dealing with the necessity or otherwise to obtain the consent of the female sapinda in addition to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1933 PC 155) (E), as laying down the correct position on this aspect of the case. It is therefore clear that the doctrine of consent is based upon the presumed incompetency of a widow rather than upon the idea of any interference with the proprietary rights of the sapindas. 15. But it is contended that the word `sapinda has a comprehensive meaning so as to take in a widow and there is no justification for excluding her when the decided cases do not in terms do so. In the Mitakshara, the term `sapinda is used in the sense of, one of the same body, i.e., a blood relation. But, according to the Hindu mode of computation, this includes relations within the seventh degree. The term `sagotra sapinda was used in respect of relations of the same gotra and binnagotra sapinda for bandhus. Lawfully wedded wives of the sapindas were also brought under that category. See Gopalchandra Sarkar Sastris Hindu Law, 8th edition, p. 69. There is, therefore, justification for the contention that the word `sapinda takes in the widow of the last male holder. But the principle underlying the doctrine of consent cannot sustain any such wide interpretation in the present context. The acceptance of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayanaswami Naick v. Mangammal, ILR 28 Mad 315 (Q), which is the only direct decision on the point. There the senior widow took a boy in adoption after having obtained the consent of his sapindas but without consulting the junior widow. The learned Judges, Davies and Benson, JJ., held that the adoption was good. At p. 319, the learned Judges observed: The junior widow is bound, as a matter of duty, to consent and if as their Lordships of the Privy Council say (12 Moo Ind App 397 (A)) the consent of kinsmen is required by reason of the presumed incapacity of women for independence rather than the necessity of procuring the consent of all those whose interest in the estate would be defeated by the adoption it would seem that the omission to consult the co-widow though no doubt improper, would not be a sufficient reason for holding the adoption to be invalid. 24. We entirely agree with the aforesaid observations. While for family peace and good relationship ordinarily a senior widow should do well to consult the younger one before introducing a boy into the family, there is nothing in law which compels her to do so. We therefore hold agreeing with the learned Judge that the adop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Effects of adoption. An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family : Provided that (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption. Section 14 reads, thus 14. Determination of adoptive mother in certain cases.(1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother. (2) Where an adoption has been made with the consent of more than one wife, the senior- most in marriage among them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction to be of unsound mind. In such a case, the actual adoption would be by the female Hindu, while the adoption will be not only to herself, but also to her husband who is dead, or has completely and finally renounced the world or has been declared to be of unsound mind. [Emphasis supplied] Adverting to Section 12 of the Act and as to the correctness of the view taken by the Andhra Pradesh High Court in N. Hanumantha Rao Vs. N. Hanumayya [ILR (1966 Andh. Pra. 140] , it was observed as hereunder:- 8. The second provision, which was ignored by the Andhra Pradesh High Court, is one contained in S. 12 itself. The section, in its principal clause, not only lays down that the adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption, but, in addition, goes on to define the rights of such an adopted child. It lays down that from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. A question naturally arises what is the adoptive family of a child who is adopted by a wid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking the consent of all the wives, if the person has more than one wife living at the time of adoption, unless the consent of any one of them has been rendered unnecessary for any of the reasons specified in the main proviso itself. The question that now requires to be considered is as to whether the plea on behalf of the appellants that the proviso and Explanation thereto engrafted in Section 7 can and also should be dovetailed or read into Section 8, for any justifiable reason or purpose, deserves or merit our acceptance. The nature, object and purpose of the Act in question has already been noticed supra. The Parliament has consciously and deliberately effected certain vital and substantial changes in the personal law of the Hindus on several branches including the law relating to adoptions. The statement of objects and reasons, so far as it pertains to the law on adoption reads as follows:- This part of the Hindu Code deals with the subject of adoptions and maintenance among Hindus. 2. With the passing of the Hindu Succession Act, 1956, which treats sons and daughters equally in the matter of succession, it has now become possible to simplify the law of adoption amon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to herself but also to her husband, and also in tune with the changed and modern concept of equality of women and their capabilities to decide independently statutorily recognised, and the very reason for insisting upon such an authority or consent from the Husband or the sapindas under the old Hindu Law having lost its basis and thereby ceased to be of any relevance or valid purpose whatsoever. In such circumstances, acceding to the submission to read into Section 8 the stipulation in the proviso to Section 7 with the Explanation thereto would amount to legislation by Courts on the lines as to what in its view the law should be, which is wholly impermissible for Courts, dehors any justification or necessity for such a provision. In our view, there is no necessity even for such a provision in the context of the changed circumstances brought about by the various alterations and amendments to the Hindu Code regulating hitherto the personal law of the Hindus. We are also of the view that either having regard to state of law prevailing on the eve of coming into force of the Act or the nature and extent of the changes and alterations effected in the then existing personal law envis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
