Devgonda Patil,the appellant through his next companion by name Nemgonda Balgonda Patildocumented the suit for segment and separate ownership of his 1/3rd offerin the joint family properties of his normal birth. It was claimed thatDevgonda was married on 15th of May, 1946 and was having greatwellbeing for one year from that point. Be that as it may, from that point hewound up noticeably crazy person and was not blending with open. His commonfather needed to remove his binds and to give all the property to another child,Shamgonda, (respondent No.
1) and in this way, offended party was given inselection to one Shri-mati W/o Tatya Patil Defendant No. 2 on eighteenthOctober, 1959. The said selection was invalid and illicit in light of the factthat:(1) Devgondawas neurotic,(2) Shrimatipassed on inside a time of 3 days after the reception and consequently it wassuspicious,(3) The periodof received kid was over 15 years at the lime of appropriation and there was nocustom in the family to embrace significant individual(4) Shrimatihad no privilege to embrace to her better half and she was having no privilegeto deal her property only before appropriation; and(5) Giving andtaking service required for substantial appropriation had not occurred. It was,in this manner, battled that Devgonda did not lose his entitlement to get sharein the family properties of his introduction to the world as he ought to bedealt with as its part. Decision by the CourtThe Court decreed the suit while the Appellate Court reversedthe said decree.
The Appellate Court held that plaintiff failed to prove theadoption dated 18th October, 1959 was illegal and invalid. It was also heldthat the suit was beyond limitation as it has not been filed within the periodof 3 years, from the date of adoption (The suit was filed on 11-10-1971). Thelearned Judge held that considering Article 57 of the Limitation Act, it was beyond limitation.
Holding:The court held that: ‘Adoption by lunatic is notprohibited by Section 6. Motive for adoption is not relevant. Proviso (b) to Section12 gets attracted only when there is property vested. In case of coparcenersince there is not vested property and so proviso (b) to Section 12will not get attracted.LimitationAct, 1963 – Articles 57, 113 – Suit challenging adoption – Not filed within 3years of adoption – Barred under Article 57. In a suit inwhich adoption is challenged and the suit is not for partition and separatepossession, Article113 will not apply and suit not being filed within 3 yearsfrom cause of action.
Suit will be barred under Article 57.’o Right in propertyafter adoption: An adoptee can take only that property to his adoptive familyfrom his birth family which is already vested in the adoptee prior to adoptionby inheritance or by partition in the natural family or as sole survivingcoparcener as he becomes its absolute owner. Clause (b) of the proviso to section 12 cannot be attracted when theproperty has not been vested in him and is still a fluctuating coparcenerproperty.
o Vested property:”Vested property” in the context of clause (b) of the proviso to section 12means property in which indefeasible right is created, i.e., on no contingencyit can be defeated in respect of particular property.o In a suit in whichadoption is challenged and the suit is not for partition and separatepossession, Article113 will not apply and suit not being filed within 3 yearsfrom cause of action. Suit will be barred under Article 57o It resulted to theappeal being failed and the same was dismissed. ISSUES o Whether theplaintiff was adopted validly and legally on 18-10-1959?o If validlyadopted, then can he have right in the joint family property of his naturalbirth? o Was the suitwithin limitation? ARGUMENTSIN BRIEFIt was also argued that the adoption had taken place with a view todeprive Devgonda from getting any property in the family of his birth andtherefore invalid.
It was also contended that Shrimati was not in a position to adopt andshe died few days after the adoption. However, no evidence was led in thatrespect which led to the rejection of this contention.It was contended that the adoptee was not in a position to adopt and shedied few days after the adoption.It was contended that Devgonda was suffering from lunacy and thereforedisabled and that the suit was within limitation as per the Limitation Act.Additionally, it was contended that in spite of adoption, Devgonda didnot lose his right in the family property of his natural birth since the saidproperty was vested in him on his birth as per the Section 12(b) of Hindu Adoptions and Maintenance Act.
RATIONALEThe court opined that Devgonda’slunacy at the time of adoption cannot be said to be held invalid. The courtrelied on Section 6(3) of Hindu Adoption and Maintenance Act whichstates the conditions for valid adoption. The section states: “The person adopted iscapable of being taken in adoption.”1Therefore, Section 6(3) does not say that a lunaticperson’s adoption is invalid. There is no such incapacity. Hence, it was notaccepted by the court.Regarding the contention about Section 12(b) of Hindu Adoptions and Maintenance Act, the court referred to the case of Yarlagadda Nayudammaetc. v.
The Government of Andhra Pradesh.2the court in the case referred opined that when a member of coparcenarygoverned by Mitakshara School is given in adoption, his undivided interest inthe coparcenary property would continue to vest in him. The property vests in acoparcener by birth and hence he gets a vested right in that property by virtueof inheritance. This view is based on the commentary on Hindu Law by Shri S. V.Gupte which differs from the view expressed in the Rook on Hindu Law by Mulla. Agreeingwith the Andhra Pradesh High Court, the court rejected the argument.
Where it was argued that the adoption had taken place with a view todeprive the plaintiff from getting any property in the family of his birth andtherefore invalid, the court opined that intention for adoption was irrelevantfor testing whether it was valid or not. The question relating to thesuits being in limitation as per Limitation Act, the court said that the suitwas within limitation considering the provisions of Section 6 of the Limitation Act. The point that the plaintiff was sufferingfrom lunacy and therefore disabled was not proved and therefore the Court belowheld that Section 6 was notattracted and the suit was beyond limitation as it was not filed within 3 yearsof adoption. Additionally, it was pointed by the court that it was not mandatoryfor Devgonda to wait till the time when the plaintiff thoughtit was joint family property. Therefore, the suit filed was beyond limitation.The court in this matter also referred to V.
K. Nalavade v. Ananda G. Chavan 3for interpreting the meaning of word”vest”.
It was held by the Division Bench that the adoptee hasequal status in the family of his adoptive father and he could challenge thealienations effected after the adoption. This Court observed the word”vest” is a word of variable import, its precise meaning depending onthe context. Ownership of the joint family properly vests in the joint familywhile management thereof alone vests in the Manager. No one member, includingeven a sole surviving coparcener, can ever claim to be the owner of the entireor any specific share in a specific property, till the partition takes place,the quantum of the share and the extent of the property falling to it tillthen, being in a perpetual state of fluctuation.The contention regarding the adoptee that she was not in a position toadopt was rejected by the court. There wasn’t anything in the pleadings whichwould amount to evidence that she was so seriously ill, mentally or physically,that she was incapable to adopt. The court therefore, rejected the contention. Also,an argument was raised that the giving and taking ceremony had not taken placeand therefore adoption was invalid.
The evidences presented proved that thedeed was registered under Section 16 of the Hindu Adoptions and Maintenance Act and it was held that the adoption was valid. COMMENTSAdoptionhas the effect of transferring the adopted child from his natural family intothe adoptive family. It confers on the adoptee, the same rights and privilegesin the family of the adopter as the legitimate son except in few cases.
Whilean adopted child acquires rights in the adoptive family, he loses all therights in his natural family, including the right of claiming any share in theestate of his natural father’s or natural relations or any share in thecoparcenary property of his natural family.4Even though the adopted child loses the right of claimingany share in the estate of his natural family but there is an exception to thisunder Section 12 of the Hindu Adoption and Maintenance Act, 1956. Section 12deals with the ‘Effects of Adoption’ and proviso (b) of this section providesthat “any property which vested in the adopted child before the adoptionshall continue to vest in such person subject to the obligations, if any,attaching to the ownership of such property, including the obligation tomaintain relatives in the family of his or her birth”.There is some controversy as regards the adoptee beingdivested of the coparcenary property belonging to the family of his birth.In Sri Rajah Narsimha v Sri Raja Rangayya, the Madras High Courthad held that adoption does not result in divestment of any property which hadvested in the adopted son prior to adoption. Where coparcenary property hasalready vested in a person as a sole surviving coparcener and such a person issubsequently adopted into another family, he does not lose his rights in thatproperty.5TheHigh Court of Andhra Pradesh in Y. Nayudamma v Govt of A.
P hasheld that an adoptee retains his interest in the undivided property of thefamily of his birth. 6The decision of this casewas also followed by the Kolkata High Court in Surendra Nath Malhotra(HUF) v Gift- Tax Officer7. In DevgondaRaygonda Patil v.
Shamgonda Raygonda Patil, it was held an adoptee cantake only that property to his adoptive family from his birth family which isalready vested in the adoptee prior to adoption by inheritance or by partitionin the natural family or as sole surviving coparcener as he becomes itsabsolute owner. Clause (b) of the proviso to section 12 cannot be attractedwhen the property has not been vested in him and is still a fluctuatingcoparcenery interest. In this case the term ‘vested property’ was interpretedas the property in which indefeasible right is created, i.e.
, on no contingencyit can be defeated in respect of particular property.8Onthe other hand, the High Court of Patna in Santosh Kumar v ChandraKishore has held that adoptee’s right in the undivided property ofthe family of his birth comes to an end at the time of adoption. 9Subsequently, the PatnaHigh Court has observed in Khidmat Singh v Shri Joginder Singh , that the property as per proviso (b) of Section 12 which vestedin the adopted child before the adoption shall continue to vest insuch person whether that property vested in him either due to partition orotherwise.
10Section 12 of HinduAdoptions and Maintenance Act provides that after adoption, theadopted child loses all its ties with the natural family and is treated like aborn child in the adoptive family. The adopted child is conferred with all therights and privileges of a natural born child in the adopting family. On theother hand, such a child loses all his rights and privileges of a natural bornchild in the natural family.
In the landmark case of Basavarajappa v. Gurubasamma, 11SupremeCourt has held that on adoption, adoptee gets transplanted in adopting familywith the same rights as that of natural-born son. Adopted child becomescoparcener in Joint Hindu Family property after severing all his ties withnatural family.
However, it has been observed in Devgonda Raygonda Patil v. Shamgonda RaygondaPatil 12bythe Bombay High Court that an adoptee can take only that property to hisadoptive family from his birth family which is already vested in the adopteeprior to adoption by inheritance or by partition in the natural family or assole surviving coparcener as he becomes its absolute owner. Clause (b) of theproviso to section 12 cannot be attracted when the property has not been vestedin him and is still a fluctuating coparcener property.Also, all the restraints imposed upon him/her with respectto degree of relationship under Hindu Marriage Act apply in both the new aswell as the previous families. Hence, he/she cannot marry his/her siblings bybirth as well as by adoption.
Keeping in mind the fact that the chief object of theacceptance as a construct is the public assistance of the kids so that he/shegets a household, the Act lays down conditions as to who can be adopted underSection 10 of the aforesaid Act13. First andforemost, a kid must be Hindu for the conditions to be applied under thepresent Act. Second, he/she must not be antecedent adopted. Third,he/ she must be single, unless any sort of usage applies to the contrary.
And inconclusion, that he/she must not be more than 15 old ages, unless any sortof use or usage applies to the reverse.In the instance of “Amar Singh v. Tej Ram” 14,the issue was as to what could be construed to be a usage. It was held, thatany peculiar usage which is followed for a long clip is to be construed as ajurisprudence and that it need not be proved.Even a child who is physically disabled could be adopted ifhe fulfils the above conditions and the jurisprudence puts no saloon on them.
The same was reiterated in the instance of “Devgonda Raygonda Patil v.Shamgonda Raygonda Patil.”1 Section6(3) of Hindu Adoption and MaintenanceAct2 AIR1981 AP 193 AIR1981 AP 194 Mulla,Hindu Law, 19th Edition Vol. 1, p.832.5 (1906)29 Mad 4376 AIR1981 AP 19.7 (1985)13 ITD 499 Kol.8 AIR1992 Bom 1899 AIR2001 Pat 125.10 2010P& H.11 (2005)12 SCC 29012 AIR 1992 Bom 18913 Guardianand Ward Act, 189014Air1982 P & A ; H 282