This article is written by Madhav Lahoti, here he discusses the Hindu Adoption and Maintenance Act.
Introduction
Section 12 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter “Act, 1956”) states that an adopted child from the date of his adoption will be deemed to be the child of his adoptive parents and all his ties with his natural family will be severed. Clause (b) of the proviso in this section has come under judicial interpretation which has led to conflicting decisions by various High Courts.
The Clause states-
“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”
The High Court of Bombay and Patna held that with adoption, the adoptee cannot have any vested interest in the Hindu Undivided Family of his natural birth.[1] Some of the judgments taking a contrary view are Yarlagadda Nayudamma v. Govt. Of A.P, Jadabendra Narayan Choudary v. Shintanshu Kumar Choudary, and Purushottam Dass Bangur, In re.[2] The reasoning of the decisions conflicted with respect to whether an adoptee gets a vested interest in the coparcenary property before the partition of the Hindu undivided family of his natural birth.
Meaning of the term ‘vested interest’
The Supreme Court in P.K Mohan v. B.N Anathachary after considering Section 19 and Section 21 of the Transfer of Property Act, 1882 held that interest can be said to be a vested interest when there is the immediate right of present enjoyment or a present right of future enjoyment. It is on the happening of an event, a contingent interest becomes a vested interest.[3] It is vested when the owner’s title is already perfect and so he owns it absolutely.[4]Therefore, when interest is vested the transferee’s title is already perfect.[5]
Coparcenary consists of fluctuating and not a specific interest
A coparcenary in the Hindu undivided family governed by the Mitakshara law, no individual member of the family while it remains undivided can predicate that he has a definite share in the property of the family. The rights of the coparceners are defined when there is a partition meaning thereby there interest is subject to fluctuation with the deaths and births of other coparceners in the family before partition takes place.[6]Furthermore, in the case of coparcenary property there cannot arise a question of full ownership.[7]
Effect of adoption
Under the classical Hindu law, the adopted son acquires the rights of a son of the adoptive family; he loses all the rights of a son in his natural family, including the right of claiming any share in the estate of his natural father or natural relations, or any share in the coparcenary property of his natural family[8]. Furthermore, the Supreme Court in Basavarajappa v. Gurubasamma and others held that after considering the scheme of Sections 11, 12 and 14 of the Act, 1956 that on adoption the adopted child would become a coparcener in the adopted family after severing all his ties with the family from which he has been adopted.[9]
Therefore, the decisions taken by the Bombay and the Patna High court are based on sound reasoning and proper interpretation of the Act, 1956 wherein the adoptee cannot have any vested interest in the Hindu Undivided Family of his natural birth.[10] The reason being the coparceners have birth interest in the property and not vested and after adoption, he severs all his ties with his natural family because of the principle of fluctuating interest. The interest of the coparcener is contingent on the number of births and deaths in the family before partition. The said interest will be vested to him only after partition.
The contrary judgments interpreted the section in such a manner that it restricted its scope by relying on the texts of Mitakshara law and considered it to be emphatic with regard to the vesting of the property to coparcener.[11] This is clearly contrary to Section 4 of the Act, 1956 wherein it is clearly stated that the Act will have an overriding effect on the Hindu texts, custom or usage. Furthermore, the interpretation of the clause (b) of the proviso by the courts made the main section redundant as the adoptee can have the share of coparcenary of two Hindu undivided families which clearly cannot be the objective of the legislature by drafting Section 12 in the Act, 1956. This kind of interpretation is contrary to the catena of judgments of the Supreme Court wherein it was held that the proper function of the proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause.[12]Additionally, in the case of The Administrator, Municipal Committee v. Ramji Lal Bagra, it was held that a provision must be read in the context of the statute.[13] Here, the context of the statute is to allow the adopted son to own the property in which he has vested interest and not birth interest.
The Act, 1956 was enacted to bring clarity and certainty with regard to vesting and diverting of any property of adoptive child so as to reduce voluminous litigation. But unfortunately, the position with respect to Clause (b) of the proviso of Section 12 of the Act, 1956 still remains unclear.
[1] Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189; Santosh Kumar Jalan v. Chandra Kishore Jalan, AIR Pat 125.
[2] Yarlagadda Nayudamma v. Govt. Of A.P, AIR 1981 AP 19; Jadabendra Narayan Choudary v. Shintanshu Kumar Choudary, 2013 (2) CHCN 325; Purushottam Dass Bangur, In re, AIR 2016 Cal 227.
[3] P.K Mohan v. B.N Anathachary, (2010) 4 SCC 161.
[4] Textbook on Jurisprudence, Dr. Veena Madhav Tonapi, Universal Law Publishing Co.
[5] Dr. S.N. Shukla, The Transfer of Property Act, 28th Edn., 2014, p.43.
[6] Girijanandini Devi v. Bijendra Narain Choudary, AIR 1967 SC 1124.
[7] Mulla, Hindu Law, 22nd Ed. Vol. 1, at p. 1353.
[8] Manu (IX, Verse 142).
[9] Basavarajappa v. Gurubasamma, (2005) 12 SCC 290.
[10] See Footnote No. 1.
[11] See Footnote No. 2.
[12] Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai, (1966) 1 SCR 367.
[13] The Administrator, Municipal Committee v. Ramji Lal Bagra, AIR1995 SC 2329.
[14] Kesharpal v. the State of Maharashtra, AIR 1981 Bom 115.
