MANU/TN/0149/1969

Equivalent Citation: AIR1969Mad72, 1968-81-LW257

IN THE HIGH COURT OF MADRAS

Second Appeal No. 1622 of 1962
Decided On: 20.06.1967
Appellants: Arumugha Udayar and Ors.
Vs.
Respondent: Valliammal and Ors.
Hon'ble Judges/Coram:
A. Rama Murthi, J.
Counsels:
For Appellant/Petitioner/Plaintiff: M.S. Venkatarama Iyer and V. Krishnan, Advs.
For Respondents/Defendant: V.C. Veeraraghavan, Adv.

JUDGMENT
A. Rama Murthi, J.
1 . This second appeal raises an interesting question of law as to whether an adopted
son who was adopted by a Hindu widow after the Hindu Adoptions and Maintenance Act,
Central Act LXXVIII of 1958, came into force, would be entitled to rights of inheritance
to the properties which the widow (the adoptive mother) took as an heir to her
husband.
2 . One Balayee Ammal succeeded to the properties of her husband, one Nallathambi.
She made several alienations and Nallathambi's sisters (plaintiffs in the present
litigation) instituted proceedings in 1951 and obtained a declaration that the alienations
would not be binding on the reversioners after the lifetime of Balavee. She died on 17-
1-1960 and Nallathambi's sisters have filed the present suit for recovery of possession
of the properties from the alienees on the basis of the declaration secured in the prior
litigation aforesaid.
3 . Balayee appears to have adopted her younger sister's son, minor Ganapathi on 31-
12-1959 and on the same day, she had also executed a registered deed of adoption
acknowledging the said adoption. The contesting defendants, i.e., the alienees and their
representatives, resisted the suit on the ground that the plaintiffs have no title to sue
and that as a result of the adoption minor Ganapathi became the nearer heir to the
estate of Nallathambi The Sub-Judge found that the adoption had been made out. But
(on the question of law) he differed from the trial Court and decreed the suit holding
that the son adopted by a widow would be an heir only to the properties of the widow
and not to the estate of her deceased husband. Hence the present second appeal by the
defeated defendants,
4. The widow was not in actual possession of the properties of her husband she having
alienated the same long before the Hindu Succession Act came into force and the

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reversioners of Nallathambi would be entitled to recover possession of the properties
from the alienees on the death of the widow Balayee. This right of the reversioners
would be unavailing if the adopted son is to be regarded as an heir not only to the
widow, Balayee, but also to her husband Nallathambi. My attention was drawn to a
recent Bench decision of the Bombay High Court reported in Ankush v. Janabai.
MANU/MH/0074/1966 : AIR1966Bom174 in which it was held that as a result of an
adoption by either spouses, the adopted son becomes the child of both the spouses and
that this result necessarily followed from the combined operation of the customary
Hindu law and the provisions of the Hindu Adoptions and Maintenance Act. Central Act
LXXVIH of 1956, hereinafter referred to as the Act In a recent decision reported in
Subhash Missir v. Thsgai Missir, MANU/UP/0050/1967 : AIR1967All148 , asimilar view
has been taken. In the Bombay decision the main reasoning is that under Section 12
and sub-section (6) of Section 11 of the Act, there is a complete severance of all ties of
the child given on adoption in the family of his or her birth and correspondingly "these
very ties of the child became automatically replaced in the adoptive family"- The effect
of the adoption is to completely transfer the child from the family of its birth to the
family of Its adoption. The several deeming provisions in Section 14 of the Act tend to
the same view. Section 5 and Section 8 of the Act do not warrant the view that after the
commencement of the Act, the widow can make an adoption only to herself and it was
not competent for her or permissible for any widow to take any child in adoption to her
deceased husband. The acceptance of the rival view that the deceased husband cannot
be regarded as the adoptive father would result In absurd results that while the adopted
son would lose all his ties in the family of his birth, he would not become related to the
deceased husband or the husband's collateral relations and there is nothing in the Act in
indicate that the provisions in the Act were intended to abrogate the position which
existed under the customary Hindu taw as regards the new ties of the adoptive son in
the adoptive family in consequence of his adoption by a widow.
5 . Before proceeding further some preliminary observations require to be made
concerning the background and the setting in which this Act was enacted and the rules
of statutory construction to be observed in construing the provisions of the Act. In the
scheme of codification of vital aspects of Hindu law, the first is the Hindu Marriage Act
1955 on the topic of Marriage and Divorce. Next came the Hindu Succession Act (Act
XXX of 1956) which has codified the Hindu Law relating to Interstate succession The
main scheme of this Act. Act XXX of 1956, is to establish complete equality between
male and female with regard to property rights and the rights of the female were
declared absolute, completely abolishing all notions of a limited estate. Next came in
Act XXXII of 1956 concerning the topic of Minority and Guardianship Last in the series
is the Hindu Adoptions and Maintenance Act. Act LXXVII1 of 1956 In many respects the
Hindu Succession Act. Act XXX of 1950 and the Hindu Adoptions and Maintenance Act.
Act LXXVII1 of 1956 are Inter-related and complementary; in particular, the scheme
under the latter Act is to project into the law of adoption the result and consequences of
the introduction of the conception of absolute estate for males and females alike and
the abrogation of the conception, of limited estate. These two Acts have introduced far-
reaching vital changes sweeping away and cutting at the root of the old traditional and
conservative- notions and concepts of customary Hindu Law.
6. The whole of Hindu Law of adoption, its evolution and the case law is evolved from a
few texts and the metaphor The metaphor is that of Saunaka, that the boy to be adopted
must bear "the reflection of a son". The texts are: Manu, Vasishta. Budhayana, Saunaka
and Sakala (Mavne's Hindu Law, 11th Edn 1950 page 188) In giving full acceptance to
the fundamental conception of this fiction of the reflection and image of a real son in
the son adopted, several aspects of Hindu Law had emerged. The wealth of case law

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which has given (?) round this fiction reveals in an amusing manner that this fiction
when pressed into its logical conclusion had led to fantastic and absurd results and on
certain aspects of Hindu law this fiction had even degenerated into a farce.
7 . The customary law in several parts of India on the topics of adoption was not
uniform, particularly with regard to the powers of a Hindu widow to take a boy in
adoption. There were also several restrictions and prohibitions like caste, the sex of the
child to be adopted etc. etc. The one important aspect which is crucial for the present
discussion is that under the customary Hindu Law, in the case of adoption by a widow,
she could adopt only to her deceased husband but never to herself, nor could she adopt
to any other person. A mother cannot adopt to her son, nor a sister to her brother. An
adoption by a woman of a eon to herself is invalid and it confers no legal rights upon
t h e person adopted (Vide Mullah's Hindu L a w . 1 3 th Edn. p. 4 7 9 , S ecti on 449),
Intimately and inseparably connected with this conception that the adoption by the
widow could only be to her husband, is the religious aspect which pervaded the
doctrine of adoption and the wealth of case law. When a widow makes an adoption, she
acts merely as a delegate or representative of her husband, that is to say. she is only an
instrument through whom the husband is supposed to act. The substitution of a son of
the deceased for spiritual reasons is the essence of adoption and the consequent
devolution of property is a mere accessory to it: Vide Amarendra Mansingh v. Sanalan
Singh, MANU/PR/0022/1933. China Rama-subbayya v. Chenchuramayya,
MANU/PR/0036/1947and Chandrasekara v. Kutandaivelu. MANU/SC/0248/1962 :
[1963]2SCR440 . The inevitable conflict between the spiritual and the religious aspect
of an adoption as against the secular and temporary considerations, resulted in any
amount of difficulties in demarcating the line as to when the religious o r spiritual
background should receive full recognition as against the secular aspect The fiction of
projecting back the existence of an adopted son (to an earlier date) on the date of the
death of the husband, in its turn created complications on the question of vesting and
divesting of estates But the foundation o f the basic conception always remained the
same under customary Hindu L aw i.e., the widow could adopt only to her husband,
never to herself and the religious and spiritual aspect was its predominant feature. The
Act. has completely swept away all these basic notions. Under the Act adoption is now a
purely secular institution and has lost all its religious significance. It is because of this
vital change that the Act now provides that a woman can make an adoption, whether
married or unmarried, and the child adopted may be a boy or a girl. The purpose of
adoption is to ensure spiritual services for a man after his death by the offering of
oblations and rice libations of water to the manes periodically and women having no
spiritual needs to be satisfied, a woman was not allowed to adopt to herself. That Is the
reason why Hindu Law did not recognise a power by an unmarried woman to take a
child in adoption. For the same reason, since according to Hindu Law, women were
ineligible to cater to the spiritual requirements of a person, the adoption of a daughter
was not permitted as the religious considerations in the law of adoption have now been
abolished and the institution of adoption has been made wholly secular. The necessary
consequence is, the discrimination between a male and a female based upon religious
considerations in the law of adoption has to disappear and has been rightly abolished
under the Act
8. The Act has considerably simplified the law on the subject furnishing a uniform code
for the whole o f India. The law as to adoption by a widow is different in different
States. In Mithila a widow cannot adopt at all, even if she has the express authority of
her husband. In Bengal, Benares and Madras, a widow may adopt under an authority
from her husband in that behalf. In Madras, a widow may also adopt without her
husband's authority, provided she had obtained the consent of the husband's sapindas,

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if the husband had separated at the time of his death, or, with the consent of his
undivided coparceners, if the husband was joint. In Bombay, a widow may adopt even
without any authority. (Vide for the statements of law, Mullah's Hindu Law, 13th Edn.
page 480 Section 452). The difference of opinion between the various schools of Hindu
Law in different parts of India arose from varying and different interpretations put upon
the following text of Vasistha "nor let a woman give or accept a son unless with the
assent of her lord". The mass of law case law with the subtle refinement, that had crept
into the law relating to the capacity of a widow to adopt have been totally abolished or
superseded under the Act which now empowers a woman to adopt at any time, either a
boy or a girl, without the obligation of obtaining the consent of any person thereto. The
most vital and important change that has been brought about under the Act is to confer
equality in a woman in the matter of adoption and to confer upon her a power to,
adopt, whether married or unmarried, in her own right and not as a representative of
her husband and to adopt a boy or a girl without any restriction as to caste. In fact, she
can even adopt a boy though her deceased husband had expressly prohibited her from
taking a child in adoption.
9. In interpreting the provisions of this Act, which as observed above is a revolutionary
piece of social legislation based solely upon secular considerations of the institution of
adoption, Courts cannot approach the problem with any preconceived notions based
upon customary Hindu Law. It had to be borne in mind that this Act is not introducing
an amendment of an existing statutory law to remedy a particular evil, defect or
mischief in which case, it may be presumed that the legislature did not intend to make
any substantial change in the existing law beyond what it declared (in the amending
statute) either in express terms or by clear and necessary implications. This Act being a
comprehensive uniform Code on the entire topic of adoption, governing the whole of
India, the pre-existing law cannot afford a safe guidance in the matter of proper and
correct interpretation of the provisions of the Act. Reference may be made to the oft-
quoted observations of Lord Macnaghten in Bank of England v. Vasliano Brothers, 1891
AC 107--
"The proper course is, in the first instance, to examine the language of the
Statute and to ask what is its natural meaning, uninfluenced by any
considerations derived from previous state of the law and not to start with
enquiring how the law previously stood, and then assuming that it was
probably intended to leave it unaltered, to see if the words of the enactment
will bear an interpretation in conformity with this view. If a statute intended to
embody in a code a particular branch of the law, is to be treated in this fashion,
it appears to me that its utility will be almost entirely destroyed, and the very
object with which it was enacted will be frustrated. The purpose of such a
statute surely was that on any point specifically dealt with by it, the law should
be ascertained by Interpreting the language used instead of, as before, roaming
over a vast number of authorities in order to discover what the law was,
extracting it by a minute critical examination of the prior decisions".
In the case of codifying statutes, it is a settled rule of construction that in respect of
matters specifically dealt with by the statute, earlier law cannot be invoked for the
purpose of adding to it something which is not there. The true meaning of the
provisions of the Act ought not to be influenced by considerations derived from the
previous state of law. It is sufficient to refer to the following headnotes Narendranath
Sircar v. Kamal Basini Dasi. I.L.R.(1896) Cal 563 --
"The object of codifying a particular branch of law should thenceforth be

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 ascertained by interpreting the language used in that enactment, instead of, as
before, searching in the authorities to discover what may be the law, as laid
down in prior decisions. The language of such an enactment must receive its
natural meaning, without any assumption as to its having probably been the
intention to leave unaltered the law as it existed before".
The provisions of the Act may now be examined to ascertain whether there is anything
in the Act, express or by necessary implication, to warrant the view that a boy adopted
by a widow should be deemed to be an adopted son of the deceased husband conferring
upon the boy so adopted, rights of inheritance to the estate of the deceased husband.
Section 4 declares the overriding effect of the Act, that save as expressly provided in
the Act, the entire previous law (on the topic of adoption) customary, statutory, textual
or any other law in force immediately before the commencement of the Act shall cease
to have effect with respect to any matter for which provision is made in the Act and that
any other law in force, immediately before the commencement of the Act shall cease to
apply to Hindus in so far as it is inconsistent with any of the provisions contained in
this Act. True, this Act has to be regarded as a governing code only on the points dealt
with under the Act and the Act cannot have the effect of nullifying the customary or any
other law in force with respect to matters on which the Act is silent, containing no
provision to the contrary express or by necessary implication. But the unabrogated part
of the pre-existing Hindu Law cannot be invoked in a manner which will produce results
opposed to the main scheme and structure of the Act and directly destructive of the very
object underlying the Act- The crucial question for decision is whether in the face of this
overriding effect as declared in Section 4, the rule of Hindu Law that when the Hindu
widow makes an adoption, she makes the adoption only as a delegate and a
representative of her husband bringing about an affiliation of the child with the other
spouse, namely, the deceased husband, making the boy so adopted an heir to the estate
of the deceased husband, would still continue to apply after the Act. On a careful
consideration of the matter, I am clearly of the view, that after the passing of the Act, it
is Impossible for a widow to adopt to her deceased husband and there is no question of
the boys adopted being affiliated to the deceased husband. Such a view would not only
be inconsistent and opposed to the main and relevant provisions of the Act, but would
also defeat and frustrate the main scheme and the object of the Act which was to
establish equality between males and females and the conferment of a power upon a
woman to adopt to herself. It is impossible to fit into the scheme of the Act the old
notion that when a widow makes an adoption, she does so as a surviving half of her
husband because the vital keynote underlying the Act is the conferment of powers and
authority upon a 'woman' purely as such and not as a widow.
10. Section 5 which is clear and unambiguous in its terms, provides that no adoption
can be made after the commencement of the Act 'by or to' a Hindu except in accordance
with the provisions contained in Ch. II and that any adoption made in contravention of
the said provisions shall be void. There is no provision in the Act enabling a widow to
adopt to her deceased husband. A perusal of the provisions of Chapter II shows that
they are exhaustive and deal with (i) the capacity of a male Hindu to take a child in
adoption; (ii) the capacity of a female Hindu to take a child in adoption: (iii) persons
capable of giving in adoption; (iv) persons capable of being taken in adoption and (v)
conditions which should be complied with for making a valid adoption like the age of
the adoptive parents and the adoptive child, the existence of the son or daughter or a
son's daughter as a bar to the adoption of a son or a daughter as the case may be, The
language of Section 5 is quite emphatic and an adoption by or to "a" Hindu which is not
in accordance with the provisions contained in Chapter II is void. The customary law
concerning an adoption by or to a Hindu is completely abrogated and every adoption

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should come within the four corners of the provisions of Ch. II. Reading Sections 4 and
5 together there can be no doubt that there is no field in which any portion of
customary law could operate with regard to adoption as unabrogated Hindu law. The
inference is clear that the basic and fundamental assumption under the Act is that any
person, a male or female, when he or she adopts, adopts to himself or herself only and
cannot adopt to another. The other relevant provisions in Chapter II lead to the same
inference, Section 7 provides that a male Hindu shall not be entitled to adopt if he has a
wife living except with the consent of his wife unless the wife has completely and finally
renounced the world or has ceased to be a Hindu or has been declared by a Court of
competent jurisdiction to be of unsound mind. The explanation to this section provides
that if a male Hindu has more than one wife living at the time of adoption, the consent
of all the wives is necessary, unless the consent of any one of them is unnecessary for
the reason specified above. Section 8 provides that a female who is married can take a
son or daughter in adoption only if her marriage has been dissolved or her husband is
dead or he has completely and finally renounced the world or has ceased to be a Hindu
or has been declared by a Court of competent jurisdiction to be of unsound mind. These
two sections indicate that the relationship of adoption can be brought about by the
person, male or female only for himself or herself and that that relationship cannot be
foisted upon the other spouse except with his or her consent. Reference may be made
to the following portion of the Statement of Objects and Reasons when the Act was
introduced, not as an aid to the construction of the provisions of the statute, but solely
for the purpose of ascertaining the circumstances which led to the legislation in order to
find out the mischief or the evil sought to be remedied and the reform underlying the
legislation:
"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 among Hindus. The Bill provides for the adoption
of boy as well as girls. There is no longer any justification for allowing a
husband to prevent his wife from taking a child in adoption after his death. The
adoption made by a Hindu widow will hereafter be in her own right. No person
need be divested of any property which has vested in him by reason only of the
fact that subsequent to such vesting an adoption has been made. This rule of
divesting has been the cause of many a ruinous litigation".
Sections 7 , 8 and 12 of the Act show how this object was sought to be achieved by the
Legislature. The object underlying Section 7 is to completely abrogate the customary
Hindu Law under which a male Hindu can foist the relationship of an adoptive mother
upon his wife without her consent or even despite her objections. After the Act, if the
requisite consent of the wife is obtained, the wife is regarded as the adoptive mother
because the adoption so made by a male Hindu is not only by himself but by his wife as
well. In the case of a Hindu female, there is no such provision for her making an
adoption during the husband's lifetime even if he consents. In other words, in the case
of an adoption by a Hindu female, there is no question of her making an adoption in
any contingency in which the adoption could be held not only for herself but to her
husband as well. Section 14 contains the "deeming provisions" so-called, in the case of
an adoption by a male or female and this has to be read along with Sections 7 and 8.
Section 14 contains the provision that in the case of such an adoption (under Section 7)
by a Hindu male, the living wife shall be deemed to be the adoptive mother and in the
case of plurality of wives, the senior most shall be deemed to be the adoptive mother
and the other wives to be step-mothers. Section 14 Sub-section (3) provides that if a
widower or a bachelor adopts a child any wife whom he subsequently marries shall be
deemed to be the stepmother of the adopted child. In the case of an adoption by a

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Hindu female there is no such corresponding provision for affiliation of the adopted
child to the deceased husband. Section 14. Sub-section (4) only provides that If the
woman marries a husband subsequent to the adoption, the latter shall be deemed to be
the step-father of the adoptive child. A perusal of the provisions of Section 14 shows
that the Legislature has deliberately provided for affiliation only in the limited manner
provided in Sub-sections (1) to (4) and no other. It is quite clear that the absence of
specific provision for the affiliation to the deceased husband of a child adopted by his
widow is not an inadvertent omission but a deliberate departure abrogating this doctrine
of affiliation under the customary law. Otherwise it is difficult to understand the
qualified manner in which the deeming provisions in Section 14. Subsection (4) is
worded; the affiliation referred to therein is only to the husband whom she may marry
after the adoption. It cannot be that an express provision for an affiliation of the
adopted boy to the deceased husband was not made, because the Legislature thought it
was so obvious; for we find a specific provision in the case of an obvious affiliation
arising as a result of an adoption by a male Hindu with the concurrence of his living
wife. The reason is not far to seek. When the Hindu female takes a child in adoption
under Section 8 none of the restrictions under customary law like caste, sex etc., apply.
The conditions, by way of restrictions, that are imposed under Section 11 have nothing
to do with the wishes or ideas of the deceased husband about an adoption. Before the
Act came into force, the husband during his lifetime, could have completely prohibited
the widow from making an adoption. One can visualise the husband having conferred
the authority upon his widow to adopt a specific person or to adopt any person with the
consent of a specific person or the husband might even have specified and restricted the
period within which the widow should take the boy in adoption. In the case of plurality
of widows, he could have conferred the power upon any one of the widows even
preferring a junior widow. Under the customary law, if there is a violation of any one of
these conditions, the adoption made by the widow would be void. But under the Act,
the capacity of the widow to adopt is absolute and unqualified having no relation to the
wishes of her deceased husband. His volitions in the matter which he might have
manifested during his lifetime imposing a prohibition or a restriction in the matter of an
adoption would have no controlling force on his widow, after his death. Take for
instance a Hindu male, who was violently averse to an adoption, dying before the Act
having expressly precluded his wife from taking a child in adoption. After the Act came
into force the widow would be entitled to take a child in adoption under Section 8
ignoring this clear prohibition by her husband. It would be absurd to say that in such a
situation there would nevertheless be an affiliation to the deceased husband deeming
him to be the adoptive father. Take again, the case of a husband dying after the coming
into force of the Act without taking a child in adoption, being totally averse to an
adoption. Here too, after his death, his widow would be entitled to take a boy in
adoption and if the rival view were accepted, the deceased husband would be the
adoptive father of this child. There is nothing in this Act to warrant such an absurd
result, on the other hand, the main scheme of Chapter II is, that the affiliation cannot
be forced upon the other spouse unless the adoption takes place as a result of mutual
agreement between both the spouses.
11. It Is also important to notice that all the 'deeming' provisions relating to affiliation
in Section 14 are only in relation to living persons and not to persona who were dead at
the time of the adoption. Section 14(1) refers only to the living wife who should be
deemed to be the adoptive mother and it does not Include a wife who was dead at the
time of the adoption; this shows the deceased wife is not to be regarded as the
adoptive mother of the boy adopted. If in the case of a deceased wife there Is no such
affiliation the position is a fortiori in the case of a deceased father. Section 8 which
confers the capacity upon a female Hindu to take a child in adoption is general in terms

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and a spinster, a divorced woman, a widow, a wife of an apostate or an ascetic are all
clubbed together without any distinction. If a spinster takes a child in adoption It is
obviously on her own behalf and to herself only. Equally, if a divorced woman takes s
child in adoption it is on her own behalf and to herself only. Having regard to the
context in which the provision is made for an adoption by a widow and from the
collocation of the words used in Section 8, it is perfectly clear that the widow adopts
only to herself and there is no warrant for holding that the Legislature envisaged
different legal consequences where the "Hindu female" under Section 8 happens to be a
widow. I have said enough to show that reading Sections 8 and 14 together the widow
has no capacity to make an adoption to the deceased husband and such an adoption will
not therefore be in accordance with the provisions contained in Chapter II within the
meaning of Section 5.
12. A reading of Section 11 also tends to the same inference. Under the customary
Hindu Law. if a Hindu dies leaving a plurality of widows and if authority is given by the
husband to one of them only, she alone can adopt and she can do so without even
consulting the other widows. If the authority is given to the widows severally, the
preferential right is to the senior widow and the junior widow will have no right to
adopt unless the senior refuses to do so. Again a widow cannot adopt when a co-widow
has validly adopted and the adopted son is living. Vide Mullah's Hindu Law, 13th Edn.
page 483, Section 455. Let us examine what would be the result of the theory of
affiliation to the deceased is accepted. Under Section 8, the widows can act severally
and every one of them can adopt a boy or a girl they need not do so simultaneously but
are at liberty to take 9 child in adoption on different occasions and as and when they
like. Section 11 contains the provision that if there is in existence a son or a daughter
by adoption, the female Hindu cannot exercise the power of adoption. If one widow
makes an adoption (under Section 8), according the rival view, the child will be an
adopted son or daughter of a deceased husband as well as of the widow making the
adoption. The consequence will be the other widow cannot under Section 11 take a boy
in adoption for the reason that the deceased husband had already become an adoptive
father of a child adopted by the other widow. There will be a race amongst the widow
and any widow who first takes a child in adoption could easily defeat the rights of the
other widows to adopt. Any such view would cut at the root of Section 8, which confers
unqualified power upon all the widows irrespective of what any one of the widows may
do in the matter. The theory of affiliation to the deceased spouse, on the assumption
that this feature of customary law should be deemed to continue in force as
unabrogated, would result not only In absurd and anomalous consequences, but would
also render many of the important provisions of the Act useless and unworkable. I have
no hesitation in holding that apart from the four specified classes of cases dealt with
under Section 14, there is no further affiliation by fiction. In the face of Sections 4 and
5 it is impossible to read Into the Act any such Power of affiliation by necessary
implication. Further, the rule of necessary implication cannot be invoked when it would
be inconsistent with what is expressly declared in the statute itself, i.e., Sections 7, 8
and 14.
13. I may now take up for consideration Section 12 on which considerable reliance was
placed in the Bench decision of the Bombay High Court referred to earlier,
MANU/MH/0074/1966 : AIR1966Bom174 . The portion relevant in the section may be
extracted:
"Section 12, 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

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 birth shall be deemed to be severed and replaced by those created by the
adoption in the adoptive family;
Provided that ............ (c) the adopted child shall not divest any person of any
estate which vested in him or her before the adoption".
The argument is that after the adoption, all the ties of the child in the family of its birth
are severed and they are replaced in the adoptive family and that such a replacement is
possible only if the child adopted becomes related to the deceased adoptive husband as
well as the husband's collateral relations. In the Bombay decision it appears to have
been conceded that the adoptive child would become collaterally related to the
husband's collateral relations such as the husband's father, mother, brother etc. It also
appears to have been conceded that the son adopted by the widow will become a
coparcener with the other coparceners who had survived the deceased husband. This
concession appears to be wrong, further it is not of much significance as the concession
accepts the very point which arises for decision. Taking the language of the section
itself, it has to be noted that the section does not state that all the ties of the child in
the family of its birth are severed and they are replaced in the adoptive family. The
replacement is not all ties lost in the natural family, but it is only those created by the
adoption in the adoptive family. The question therefore arises what are the ties or rights
which are created as a result of the adoption in the adoptive family and we are
necessarily thrown back upon Sections 4, 5, 7, 8, 11 and 14. In other words, Section 12
by itself is not decisive and does not lead to the necessary conclusion that there is an
affiliation to the deceased spouse. The argument that because an adoption had taken
place somehow an adoptive father for the boy should be found cannot be accepted. In
the Full Bench decision in Sivagami Achi v. Somasundaram Chettiar,
MANU/TN/0385/1955 : (1956)1ML J441 , it was held that a widower by making an
adoption cannot make his deceased wife even by fiction the mother of the deceased
boy; that affiliation of an adopted son to his dead wife has never been in the
contemplation of any of the authoritative text writers and that it is not a sound
reasoning that a mother should somehow be found for the adopted boy. In the Full
Bench judgment, after a reference to the authoritative texts, it was pointed out that by a
widower's adoption, the adopted boy can have no maternal relations as nothing in a
deceased wife survives in her husband, whereas the body of the husband survives in the
wife and that the fiction of the adoptive mother based on a widower's adoption is a
misnomer. Under the Act, an adoption by a male and a female are placed on the same
footing and there is no scope for invoking the doctrine that the widow makes the
adoption as the surviving half of the husband and on his representative. It is important
to notice that Section 12 states that the adopted child shall be deemed to be the child of
his "or" her adoptive father. The word used is "or" and not "and". Further the
relationships are replaced o nl y with effect from the date of the adoption and not
retrospectively. If on an interpretation of Sections 5, 8, 11 and 14, the tie of an
adoptive father based upon the theory of affiliation is not created, Section 12 does not
improve the position. If a spinster or a divorced woman takes a boy in adoption under
the Act, there is no question of somehow finding an adoptive father for the boy so
adopted The boy so adopted would get collaterally related only to the relations of the
woman who makes the adoption i.e., the spinster of the divorced wife as the case may
be. The same consequence would follow in the case of an adoption by a widow since
the avowed object of the legislation is to confer an independent status upon the woman
and a right to adopt in her own right. I do not see any reason why, what applies to the
case of a spinster or a divorced woman should not apply in the case of an adoption by a
widow. In my view all the sections including Section 12 should be read together and it
will be a wrong perspective of approach to take Section 12 alone divorced from its

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context in Chapter II, as though it provides for any overriding effect. It is only if the
adopted child becomes related to the deceased husband (as adoptive father) that the
adopted child would acquire collateral relationship with the husband's collateral
relations. If the main affiliation by fiction to the husband does not exist, the other
relationships do not arise at all.
14. No argument can be built upon a speculative theory that the son adopted would
become a coparcener with the serving coparceners of the deceased husband. After the
Hindu Succession Act came into force, on the death of the husband his share gets
earmarked or demarcated and devolves upon the heirs under Section 6 of the Act which
includes the wife, the sons and the daughters. The wife and the daughters do not
become coparceners with the surviving coparceners of the deceased husband. The
scheme of the Hindu Succession Act is that on the death of a member of the
coparcenary, leaving the heirs specified in Class I of the schedule, there is a statutory
division between the surviving coparceners and the deceased, at the moment of his
death.
15. There is also another vital aspect to be taken into consideration and that is the
proviso (c) to Section 12, which embodies the principle that as a result of the adoption,
the child shall not divest any person of any estate which vested in him or her before the
adoption. All this argument about the fiction of an affiliation to the deceased husband
will have some meaning if as a result of the adoption, the adopted child becomes
entitled to the estate of the deceased, the intermediate vesting between the death of the
husband and the adoption being merely temporary. The theory of vesting and divesting
has no place after the Act. The moment the husband dies, the widow and the other
heirs, the daughters if any, would take the property under the Hindu Succession Act
with absolute rights and the adoption made by the widow would not divest the estate
vested on the widow and the daughters. It is impossible to conceive any purpose which
this fiction of affiliation would serve when the secular aspect so completely pervades
the whole Act. It is too much to argue that this fiction of affiliation to the deceased
husband has been kept alive for the limited classes of cases in which the estate of the
widow did not become absolute by reason of the widow not being in possession of the
property within the meaning of Section 14 of the Hindu Succession Act.
16. For all these reasons, with great respect, I am not inclined to follow the Bench
decision of the Bombay High Court or the decision of the Allahabad High Court. The
following statement in MANU/UP/0050/1967 : AIR1967All148 with respect is not
correct.
"In Madras even before the Act under the old Hindu Law a widow could adopt
without the permission of her husband and the various authorities of the
Madras High Court would show that such adopted son was always treated as the
son of the husband of the widow. In my opinion, the same status should be
given to the adopted son after the passing of the Act in other provinces as
well."
The Law in Madras has not been correctly set out. Further these observations overlook
the important aspect that before the Act, if a widow took a boy in adoption it was as a
surviving half of her husband and as his representative a position which does not exist
after the Act.
1 7 . The result is, the decree and Judgment of the learned Subordinate Judge are
confirmed and the second appeal is dismissed with costs. No leave.

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