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Natural children of the adoptee born before his adoption have rights to inherit his property in adop

Kalindi Damodar Garde (D) BY LRS v Manohar Laxman Gulkarni and Ors etc., Civil Appeal No. 6642-6643 of 2010- FEBRUARY 07, 2020.

The Bench comprising of the Justice L. Nageswara Rao and Hemant Gupta dismissed the appeal.

One Laxman was given in adoption to saraswati on 2nd November, 1935. Laxman had three sons named Gangadhar, Daatatraya, and Manohar during the time of his adoption and after that a daughter was born to him named Kalindi in 1938. Laxman inherited the property of sarawathi after her death. Padmavati, wife of Laxman left a registered will that she had bequeathed her share to her 3 sons who were born prior to the date of adoption. But Kalindi, claimed that she and her mother Padmavati alone are the original owners of the property.

The counsel of the appellant contended that the wife of an adoptee passes with her husband to the adopted family but not the sons born to an adoptee before an adoption, by relying on case, Kalgavda Tavanappa Patil v Somappa Tamangavda Patil and ors. and Hindu Law has not provided any kind of such inheritance to the children born before an adoption.

The court by referring the judgment passed by the Bombay High Court in Martand Jiwagee Patil and anr v Narayan Krishna Gumast patil and anr., held that adoptee has the right to give the property to his son born prior to his adoption. Here the adoptee will remain the father of the son was recognised way back in 1939. Thus the Judgment in Kalgavda Tavanappa patil has not been accepted even under Hindu Law.

The court held the reason that the Hindu Succession Act has been enacted and Section 4 of the act explains that any custom or usage as part of  Hindu Law in force will cease to have effect after the enforcement of Hindu Succession Act with respect to any matter for which provision is made in the act by referring the Judgement in Bhaiya Ramanuj Pratap Deo v Lalu Maheshanuj Pratap Deo and since succession has opened after the death of Laxman on 1987, the succession has to be in accordance with the enactment.

The court has concluded by taking the reference in the judgment of Bombay High Court in Martand Jiwajee Patil, that the natural father retains the right to give in adoption his son born before his own adoption. Therefore, if he has a right to give his son in adoption, such son has a right to inherit property by virtue of being an agnate. There was a full blood relationship between the three sons and the daughter who was born after adoption.

All the children of Laxman are entitled to inherit the property of their natural father and natural mother in accordance with the provisions of the act.

Accordingly the Bench dismissed the appeal.

–  Prithisha S



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