Adopted child cannot divest person of estate vested before his adoption by virtue of proviso to Section 12 of the Adoption Act-Supreme Court
ABCAUS Case Law Citation:
1056 (2016) (11) SC
Brief Facts of the Case:
The grandfather of the plaintiff-Respondent was the last holder of the suit properties, who died intestate in 1957 and the suit properties had devolved upon his wife and three daughters in equal shares and the female heirs became absolute owners of their respective shares. No partition was effected among the four sharers.
In the course of time, all the three daughters died during the life of their mother, leaving behind their respective undivided share in the suit properties, which devolved upon their respective heirs.
The Dispute and the Contentions:
The plaintiff who was a member of the hindu undivided family (HUF), after death of his grandmother demanded his legitimate share in 2004 from the defendants but defendant No.1 who was an adopted son refused to give any share to him.
It was submitted by the Plaintiff that upon death of the daughter-2 as above, her undivided share devolved upon the plaintiff along with his three sisters (defendant 4 to 6). Likewise, undivided 1/4th share of second daughter in suit properties devolved upon her only daughter (defendant no. 2), who is the wife of the present appellant and undivided share of 1/4th of 3rd daughter devolved upon defendant no. 3 and defendant nos. 7 to 9.
The Contentions of the Plaintiff was that the defendant No.1, the present Appellant, claimed to have been adopted by late grandmother, but, in fact, there was no execution of any adoption deed and requisite ceremony for adoption of defendant no.1 had also not been performed and therefore, defendant no.1 had no right in the property.
It was further submitted that defendant no.1 married defendant no.2, daughter of the grandmother and therefore, defendant no.1, the present Appellant, was trying to usurp the entire suit property by denying the share of the plaintiff.
The parties to the litigation as existed before the trial Court were as under:
The Trial Court considering all the evidence, came to the conclusion that defendant no.1 was an adopted son of grandmother and held that the adoption of defendant no.1 would not take away right and interest of other members of the family, which they had received prior to the date of adoption by virtue of the provisions of Section 12(c) of the Adoption Act. Thus, the Trial Court decreed the suit and ordered that the plaintiff was entitled to 1/16th share in the suit property as the property of Grandfather had been divided into four parts. One part was inherited by his widow – the grandmother and three parts had been inherited by his three daughters. 2nd Daughter being one of the daughters had received 1/4th share and the plaintiff being one of the four children of 2nd daughter, had received 1/4th share of her and thus the plaintiff was entitled to 1/16th share (1/4 x 4) in the suit property.
Being aggrieved by the judgment and decree of the Trial Court, defendant no.1 preferred First Appeal before the Fast Track Court, (FAC). The plaintiff also preferred an appeal contending that in addition to 1/16th share, he was also entitled to a further share in 1/4th share of his deceased grandmother.
The first appellate Court, dismissed the appeal filed by defendant no.1 and partly allowed the appeal filed by the plaintiff by giving the plaintiff and his sisters 1/4th share in their mother’s 1/4th share. The FAC came to the conclusion that the Trial Court did not consider the fact that the Grandmother had died intestate and by virtue of the provisions of Section 15 of the Hindu Succession Act, 1956 (“the Succession Act”) all the family members had got share in her properties. The first appellate Court had held that defendant no.1, who had been adopted in 1971 would get 1/4th share of his adoptive mother’s property, whereas the plaintiff would get not only 1/16th share of the property, but also 1/64th share of the property of Grandmother for the reason that she had one adopted son and three daughters and therefore, the plaintiff would, at the first instance, get 1/4th share of 2nd daughter, the property which she had inherited from her mother and further 1/64th share from the property of grandmother as she had died intestate. Thus, the plaintiff was entitled to 5/64th share in the suit property.
However, the High Court set aside the judgment of the first appellate Court and restored the judgment and decree of the trial Court.
The Question before the Supreme Court:
The core question which arose for the consideration of the Apex Court was whether the High Court had rightly allocated share of the properties among the family members in accordance with the Hindu Succession Act, 1956.
Observations made by the Supreme Court:
The Supreme Court observed that there was no coparcenary, as the Grandfather was the sole male member in the family and thus upon his death his properties were inherited by his widow and three daughters.
At the time when the Grandfather died in 1957, the adopted son (defendant no.1) was not in the picture as he was adopted by his surviving wife in 1971. By virtue of proviso to Section 12 of the Adoption Act, an adopted child cannot divest any person of any estate which vested in him or her before the adoption. Thus, the property of late Grandfather which, upon his death in 1957, had vested in his widow and three daughters, would not be disturbed by virtue of subsequent adoption of defendant no.1.
The Court also was in agreement with the first appellate Court in holding that the plaintiff would inherit not only property of his mother along with his three sisters, but he would also have share in the properties of his grandmother, who had also not prepared any Will and as she had died intestate, her property would be divided among her adopted son i.e. defendant no.1 and heirs of her three daughters, who had predeceased her. The Grandmother was having 1/4th share in the entire property, which she had inherited from her husband. The 2nd daughter’s heirs would inherit 1/4th share of property of the Grandmother and the plaintiff being one of the four heirs of late 2nd daughter, would get 1/64th share from the property of his grandmother.
The Supreme Court also explained the shares of the parties as originally the Grandmother was to get 1/4th share from the property of her husband, from her 1/4th share, the properties would be inherited by her adopted son and heirs of her predeceased daughters. The plaintiff would be getting 1/16th share in the property of his mother (2nd daughter) and 1/64th share upon death of Grandmother and thus, the plaintiff would be getting 5/64th share in the suit property, whereas defendant no.1 would get 1/16th share of the suit property.
Their Lordships held that the High Court had committed an error by setting aside the judgment and decree of the first appellate Court and therefore, set it aside and restored the judgment and decree of the first appellate Court.