Case Note & Summary
The dispute arose from a partition suit filed by a son who had been given in adoption in 1974 at the age of 23-24 years. The natural father died intestate in 2004, and the plaintiff sought 1/5 share in the family properties. The defendants, including the mother and siblings, resisted the suit on the ground that the plaintiff had been adopted into another family and therefore lost all rights in the natural family. The plaintiff contended that the adoption was invalid as it violated Section 10 of the Hindu Adoptions and Maintenance Act, 1956, which prohibits adoption of a person above 15 years, and that custom permitting such adoption was not properly proved. The trial court and the first appellate court dismissed the suit, holding the adoption valid under custom and that the plaintiff could not claim a share. In second appeal, the High Court examined two substantial questions of law: whether the adoption was valid under custom, and whether Section 12(b) of the Act could be invoked by the adoptee to claim a share. On custom, the court noted that the plaintiff himself produced the adoption deed and that the defendants had placed on record two registered adoption deeds from the same community (Exs.D6 and D7) showing adoption of children above 15, supported by the testimony of DW2. The court held that this sufficiently proved the custom, overriding the statutory age bar. On the applicability of Section 12(b), the court examined the provisions and found that the adoptee cannot claim any share in the natural family property unless it had already vested in him before adoption. As a mere coparcener without any partition, no property had vested in the plaintiff. The appeal was therefore dismissed, affirming the concurrent findings of the courts below.
Headnote
A) Hindu Law - Adoption - Validity of Adoption of Person Above 15 Years - Custom - Hindu Adoptions and Maintenance Act, 1956, Sections 10, 16 - The plaintiff, given in adoption at age 23, challenged validity under Section 10. Defendants pleaded custom in Vysya community in Hyderabad Karnataka Area allowing adoption above 15. Court held custom proved by Exs.D6 and D7 (registered adoption deeds of others in same community where children above 15 were adopted) and DW2’s testimony; thus adoption valid despite Section 10. (Para 16)
Issue of Consideration
Whether the courts below were justified in holding that the adoption of the plaintiff, who was 23 years, is valid under the custom prevailing in Vysya community?; Whether the courts below were justified in negating the contention that Section 12(b) of the Hindu Adoptions and Maintenance Act, 1956 can be pressed into service to claim share in suit properties?
Final Decision
High Court dismisses the second appeal, upholding the adoption as valid under custom, and holding that Section 12(b) cannot be pressed to claim share in natural family property.
Law Points
- Custom in adoption under Hindu Law must be specifically pleaded and proved by documentary evidence like registered adoption deeds
- Section 10 of Hindu Adoptions and Maintenance Act
- 1956
- prohibiting adoption of child above 15 years
- can be overridden by custom
- Section 16 of the Act provides presumption in favor of registered documents relating to adoption
- Section 12(b) of the Act cannot be invoked by an adoptee to claim share in natural family property unless the property had vested in the adoptee before adoption
- A coparcener's right in joint family property does not vest until partition
Case Details
2023 LawText (KAR) (07) 95
Regular Second Appeal No. 7198 of 2010
Manvendra Reddy, Sachin M Mahajan
Bheesmaraja S/o Pandurangappa Ellur
Smt Radhabai, Shashirekha, Sunderraj, Harsharaj, Smt Savitramma, Ellur Venkatesh, Ellur Gopalkrishna
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Nature of Litigation
Partition suit by adopted son claiming share in natural family property
Remedy Sought
Plaintiff sought partition and separate possession of 1/5 share in suit properties
Filing Reason
Defendants denied plaintiff's share on ground that he was adopted into another family in 1974
Previous Decisions
Trial court dismissed suit; first appellate court affirmed dismissal; concurrent findings upheld adoption validity
Issues
Whether the adoption of the appellant, who was 23 years old, is valid under the custom prevailing in Vysya community in Hyderabad Karnataka Area?
Whether Section 12(b) of the Hindu Adoptions and Maintenance Act, 1956 can be invoked by an adoptee to claim a share in the natural family's property after adoption?
Submissions/Arguments
Appellant contended that adoption deed is not in dispute but invalid as he was 24 years, no valid custom proved, Section 10 prohibits adoption over 15, Section 12(b) should apply as property had vested in him as coparcener
Respondents contended that custom existed in Vysya community proved by Exs.D6 & D7 and DW2, Section 16 presumption applies, adoptee cannot challenge after benefiting, Section 12(b) cannot be invoked as no property vested
Ratio Decidendi
Under the Hindu Adoptions and Maintenance Act, 1956, a custom allowing adoption of a person above 15 years must be specifically pleaded and proved by evidence such as registered adoption deeds from the same community. An adoptee cannot claim a share in the natural family's property under Section 12(b) of the Act upon the death of the natural father after adoption unless the property had already vested in the adoptee before adoption.
Judgment Excerpts
This appeal is directed against the judgment in OS No.51/2005 by learned Additional Civil Judge (Sr.Dn) Raichur, on 10-12-2007 which came to be confirmed in RA No.3/2008 by the learned Principal District Judge, Raichur, on 22-01-2010, whereby the suit for partition by the appellant came to be dismissed.
The first aspect to be considered by this Court in furtherance of the substantial question of law is regarding the validity of the Adoption. The plaintiff contend that he was aged about more than 15 years as on the date of the alleged Adoption and therefore, the said Adoption is invalid. On the other hand, the defendants contend that there was a custom in the Vysya community and therefore, the Adoption is valid.
Sections 10 and 16 of the Act, read as below: "10 provides that no person shall be capable of being taken in adoption unless four conditions are fulfilled viz. (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or she has not been married and; (iv) he or she has not completed the age of fifteen years. ... 16 Presumption as to registered documents relating to adoption. — Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in"
Procedural History
Plaintiff filed suit for partition in 2005; Trial Court dismissed suit on 10.12.2007; First Appellate Court dismissed appeal on 22.01.2010; Second Appeal filed in 2010, admitted on 23.04.2010, substantial questions recast on 30.11.2011, heard and reserved on 21.06.2023, judgment pronounced on 14.07.2023.
Acts & Sections
- Hindu Adoptions and Maintenance Act, 1956: 10, 12(b), 12(c), 13, 16
- Code of Civil Procedure, 1908: 100
