Devgonda Patil,
the appellant through his next companion by name Nemgonda Balgonda Patil
documented the suit for segment and separate ownership of his 1/3rd offer
in the joint family properties of his normal birth. It was claimed that
Devgonda was married on 15th of May, 1946 and was having great
wellbeing for one year from that point. Be that as it may, from that point he
wound up noticeably crazy person and was not blending with open. His common
father 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 in
selection to one Shri-mati W/o Tatya Patil Defendant No. 2 on eighteenth
October, 1959. The said selection was invalid and illicit in light of the fact
that:

(1) Devgonda
was neurotic,

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(2) Shrimati
passed on inside a time of 3 days after the reception and consequently it was
suspicious,

(3) The period
of received kid was over 15 years at the lime of appropriation and there was no
custom in the family to embrace significant individual

(4) Shrimati
had no privilege to embrace to her better half and she was having no privilege
to deal her property only before appropriation; and

(5) Giving and
taking service required for substantial appropriation had not occurred. It was,
in this manner, battled that Devgonda did not lose his entitlement to get share
in the family properties of his introduction to the world as he ought to be
dealt with as its part.

 

 

 

 

 

Decision by the Court

The Court decreed the suit while the Appellate Court reversed
the said decree. The Appellate Court held that plaintiff failed to prove the
adoption dated 18th October, 1959 was illegal and invalid. It was also held
that the suit was beyond limitation as it has not been filed within the period
of 3 years, from the date of adoption (The suit was filed on 11-10-1971). The
learned Judge held that considering Article 57 of the Limitation Act, it was beyond limitation.

Holding:

The court held that:

‘Adoption by lunatic is not
prohibited by Section 6. Motive for adoption is not relevant. Proviso (b) to Section
12 gets attracted only when there is property vested. In case of coparcener
since there is not vested property and so proviso (b) to Section 12
will not get attracted.

Limitation
Act, 1963 – Articles 57, 113 – Suit challenging adoption – Not filed within 3
years of adoption – Barred under Article 57. In a suit in
which adoption is challenged and the suit is not for partition and separate
possession, Article113 will not apply and suit not being filed within 3 years
from cause of action. Suit will be barred under Article 57.’

o  
Right in property
after adoption: An adoptee can take only that property to his adoptive family
from his birth family which is already vested in the adoptee prior to adoption
by inheritance or by partition in the natural family or as sole surviving
coparcener as he becomes its absolute owner. 
Clause (b) of the proviso to section 12 cannot be attracted when the
property has not been vested in him and is still a fluctuating coparcener
property.

o  
Vested property:
“Vested property” in the context of clause (b) of the proviso to section 12
means property in which indefeasible right is created, i.e., on no contingency
it can be defeated in respect of particular property.

o  
In a suit in which
adoption is challenged and the suit is not for partition and separate
possession, Article113 will not apply and suit not being filed within 3 years
from cause of action. Suit will be barred under Article 57

o  
It resulted to the
appeal being failed and the same was dismissed.

ISSUES

 

o   Whether the
plaintiff was adopted validly and legally on 18-10-1959?

o   If validly
adopted, then can he have right in the joint family property of his natural
birth?

o   Was the suit
within limitation?

 

ARGUMENTS
IN BRIEF

It was also argued that the adoption had taken place with a view to
deprive Devgonda from getting any property in the family of his birth and
therefore invalid.

It was also contended that Shrimati was not in a position to adopt and
she died few days after the adoption. However, no evidence was led in that
respect which led to the rejection of this contention.

It was contended that the adoptee was not in a position to adopt and she
died few days after the adoption.

It was contended that Devgonda was suffering from lunacy and therefore
disabled and that the suit was within limitation as per the Limitation Act.

Additionally, it was contended that in spite of adoption, Devgonda did
not lose his right in the family property of his natural birth since the said
property was vested in him on his birth as per the Section 12(b) of Hindu Adoptions and Maintenance Act.

 

 

 

 

 

RATIONALE

The court opined that Devgonda’s
lunacy at the time of adoption cannot be said to be held invalid. The court
relied on Section 6(3) of Hindu Adoption and Maintenance Act which
states the conditions for valid adoption. The section states:

“The person adopted is
capable of being taken in adoption.”1

Therefore, Section 6(3) does not say that a lunatic
person’s adoption is invalid. There is no such incapacity. Hence, it was not
accepted by the court.

Regarding the contention about  Section 12(b) of Hindu Adoptions and Maintenance Act, the court referred to the case of Yarlagadda Nayudamma
etc. v. The Government of Andhra Pradesh.2
the court in the case referred opined that when a member of coparcenary
governed by Mitakshara School is given in adoption, his undivided interest in
the coparcenary property would continue to vest in him. The property vests in a
coparcener by birth and hence he gets a vested right in that property by virtue
of 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. Agreeing
with the Andhra Pradesh High Court, the court rejected the argument.

Where it was argued that the adoption had taken place with a view to
deprive the plaintiff from getting any property in the family of his birth and
therefore invalid, the court opined that intention for adoption was irrelevant
for testing whether it was valid or not.

The question relating to the
suits being in limitation as per Limitation Act, the court said that the suit
was within limitation considering the provisions of Section 6 of the Limitation Act. The point that the plaintiff was suffering
from lunacy and therefore disabled was not proved and therefore the Court below
held that Section 6 was not
attracted and the suit was beyond limitation as it was not filed within 3 years
of adoption. Additionally, it was pointed by the court that it was not mandatory
for Devgonda to wait till the time when the plaintiff thought
it 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 3
for interpreting the meaning of word
“vest”. It was held by the Division Bench that the adoptee has
equal status in the family of his adoptive father and he could challenge the
alienations effected after the adoption. This Court observed the word
“vest” is a word of variable import, its precise meaning depending on
the context. Ownership of the joint family properly vests in the joint family
while management thereof alone vests in the Manager. No one member, including
even a sole surviving coparcener, can ever claim to be the owner of the entire
or 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 till
then, being in a perpetual state of fluctuation.

The contention regarding the adoptee that she was not in a position to
adopt was rejected by the court. There wasn’t anything in the pleadings which
would 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 place
and therefore adoption was invalid. The evidences presented proved that the
deed was registered under Section 16 of the Hindu Adoptions and Maintenance Act and it was held that the adoption was valid.

 

 

 

 

 

 

 

COMMENTS

Adoption
has the effect of transferring the adopted child from his natural family into
the adoptive family. It confers on the adoptee, the same rights and privileges
in the family of the adopter as the legitimate son except in few cases. While
an adopted child acquires rights in the adoptive family, he loses all the
rights in his natural family, including the right of claiming any share in the
estate of his natural father’s or natural relations or any share in the
coparcenary property of his natural family.4

Even though the adopted child loses the right of claiming
any share in the estate of his natural family but there is an exception to this
under Section 12 of the Hindu Adoption and Maintenance Act, 1956. Section 12
deals with the ‘Effects of Adoption’ and proviso (b) of this section provides
that “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”.

There is some controversy as regards the adoptee being
divested of the coparcenary property belonging to the family of his birth.
In Sri Rajah Narsimha v Sri Raja Rangayya, the Madras High Court
had held that adoption does not result in divestment of any property which had
vested in the adopted son prior to adoption. Where coparcenary property has
already vested in a person as a sole surviving coparcener and such a person is
subsequently adopted into another family, he does not lose his rights in that
property.5

The
High Court of Andhra Pradesh in Y. Nayudamma v Govt of A.P has
held that an adoptee retains his interest in the undivided property of the
family of his birth. 6The decision of this case
was also followed by the Kolkata High Court in Surendra Nath Malhotra
(HUF) v Gift- Tax Officer7. In Devgonda
Raygonda Patil v. Shamgonda Raygonda Patil, it was held an adoptee can
take only that property to his adoptive family from his birth family which is
already vested in the adoptee prior to adoption by inheritance or by partition
in the natural family or as sole surviving coparcener as he becomes its
absolute owner. Clause (b) of the proviso to section 12 cannot be attracted
when the property has not been vested in him and is still a fluctuating
coparcenery interest. In this case the term ‘vested property’ was interpreted
as the property in which indefeasible right is created, i.e., on no contingency
it can be defeated in respect of particular property.8

On
the other hand, the High Court of Patna in Santosh Kumar v Chandra
Kishore has held that adoptee’s right in the undivided property of
the family of his birth comes to an end at the time of adoption. 9Subsequently, the Patna
High Court has observed in Khidmat Singh v Shri Joginder Singh &
ors, that the property as per proviso (b) of Section 12 which vested
in the adopted child before the adoption shall continue to vest in
such person whether that property vested in him either due to partition or
otherwise.10

Section 12 of Hindu
Adoptions and Maintenance Act provides that after adoption, the
adopted child loses all its ties with the natural family and is treated like a
born child in the adoptive family. The adopted child is conferred with all the
rights and privileges of a natural born child in the adopting family. On the
other hand, such a child loses all his rights and privileges of a natural born
child in the natural family.

In the landmark case of Basavarajappa v. Gurubasamma, 11Supreme
Court has held that on adoption, adoptee gets transplanted in adopting family
with the same rights as that of natural-born son. Adopted child becomes
coparcener in Joint Hindu Family property after severing all his ties with
natural family.

However, it has been observed in Devgonda Raygonda Patil v. Shamgonda Raygonda
Patil 12by
the Bombay High Court that an adoptee can take only that property to his
adoptive family from his birth family which is already vested in the adoptee
prior to adoption by inheritance or by partition in the natural family or as
sole surviving coparcener as he becomes its absolute owner. Clause (b) of the
proviso to section 12 cannot be attracted when the property has not been vested
in him and is still a fluctuating coparcener property.

Also, all the restraints imposed upon him/her with respect
to degree of relationship under Hindu Marriage Act apply in both the new as
well as the previous families. Hence, he/she cannot marry his/her siblings by
birth as well as by adoption.

Keeping in mind the fact that the chief object of the
acceptance as a construct is the public assistance of the kids so that he/she
gets a household, the Act lays down conditions as to who can be adopted under
Section 10 of the aforesaid Act13. First and
foremost, a kid must be Hindu for the conditions to be applied under the
present 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 in
conclusion, that he/she must not be more than 15 old ages, unless any sort
of 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, that
any peculiar usage which is followed for a long clip is to be construed as a
jurisprudence and that it need not be proved.

Even a child who is physically disabled could be adopted if
he 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 Section
6(3) of Hindu Adoption and Maintenance
Act

2 AIR
1981 AP 19

3 AIR
1981 AP 19

4 Mulla,
Hindu Law, 19th Edition Vol. 1, p.832.

5 (1906)
29 Mad 437

6 AIR
1981 AP 19.

7 (1985)
13 ITD 499 Kol.

8 AIR
1992 Bom 189

9  AIR
2001 Pat 125.

10  2010
P& H.

11 (2005)
12 SCC 290

12 AIR 1992 Bom 189

13 Guardian
and Ward Act, 1890

14Air
1982 P & A ; H 282