- In Rajesh, Dnyanoba and Godavaribai vs Parwatibai and ors. the Bombay HC has held that if a woman adopts a child after the death of her husband, then the adopted child cannot claim any share in the property owned by the dead father as he cannot be considered as the child of the dead father.
- The Court further held that the doctrine of relation back as was envisaged by the old Hindu law has been done away with by the enactment of section 12 of the Hindu Adoption and Maintenance Act.
- In the instant case, Shivaji was adopted in the year 1973 by Kausalyabai. Her husband Sopanrao had passed away in 1965. They had one daughter named Parwatibai, who was their biological daughter.
- Shivaji had sold properties belonging to the late husband of his adoptive mother. He contended that he shall be deemed to be a child of the adoptive parents and that all the ties of the child in the natural family are deemed to be severed from the date of the adoption and are replaced with those of the adoptive family.
- He relied upon the decision in Hiralal vs Board of Revenue AIR 2001 Raj. and contended that as soon as the widow of a coparcener adopts a son, the adoptive son becomes a coparcener with all the surviving coparceners and consequently, would acquire the same interest which his adoptive father would have in the coparcenary property. The child adopted by the widow of the coparcener becomes the child of the deceased coparcener from the date of his demise.
- The Court observed that section 12 of the Hindu Adoption and Maintenance Act clearly states that the adopted child will be deemed to be the child of the adoptive parents from the date of the adoption for all purposes and it is from this date that all the ties of the child in the family of his birth shall stand severed and shall be replaced by those created by the adoption in the adoptive family.
- While deciding the question as to whether the doctrine of relation back would be applicable to the instant case in light of section 12 of the Act, the Court placed reliance on its decision in Banabai and Ors vs Wasudeo AIR 1979 Bom. wherein it was held that adoption takes effect only from the date of the adoption. Under the old Hindu law, adoption had the effect of relating the adoption back to the date of the death of the father, and the adopted son was deemed to be in existence on the date of the death of the father. This fiction of relation back has been done away with by section 12.
- In Banabai’s case, the Court also reiterated the principle which was enunciated by the Apex Court, which was that the adopted child shall not divest any person of any estate which vested in him/her before the adoption. Thus, we can see that though the adopted child enjoys all the rights in the adoptive family as though he was born into that family, he cannot divest any person of any rights which had vested in him/her before the adoption took place.
- Having regard to this legal position, the Court was of the view that the contention of the Counsel for the appellant that the adopted child would acquire all the rights in the property right from the date of the demise of the adoptive mother’s husband.
- Since the adoptive mother had passed during the pendency of the suit, the Court held that Parwatibai would be entitled to ¾ of the share in the suit property (since both she and her mother were entitled to ½ of the property after her father’s demise, and after the mother’s demise, her share was split between the Parwatibai and Shivaji) while the adopted son Shivaji would be entitled to ¼ of the share.
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