(Problems based on Hindu Adoption and Maintenance Act 1956..)

1) A Hindu widow adopts a child. Later on she remarries. Who is the adoptive father of the adopted child ?

Solution -->

          Section 14 (4) of Hindu Adoption and Maintenance Act,1956,  makes it clear that on re-marriage of the widow, the husband becomes the step-father of the child. The section is silent as to what the position of the predeceased husband would be. In Sawan ram v. Kalawanti, the Supreme Court held that the predeceased husband is to be treated as the adoptive father. This because the widow's adoption is not only to herself but her deceased husband as well. The country view maintained by the high Court of Andhra Pradesh in Hanumantharao v. Hanumanthayya, was disapproved by the Supreme Court.

       The Madras high Court in Arumugha udayar v. Valliammal, came to the conclusion that the deceased husband does not become the adoptive father under the new Act. The attention of Ramamurthi, j., Who decided this case, was apparently not drawn to the supreme Court decision in Sawan ram v. Kalawanti.

2) In Hindu family 'A' is the last surviving Coparcener in a joint family. He died in 1934 leaving behind a widow and ancestral property. The widow adopted a son in 1964. What is the effect of the adoption ?

Solution -->

        These are the facts of Kesharbai v. State, it was contended that since the widow was having in her hands ancestral property, the adopted son takes half to it by civil birth in the joint family of the adopter. If the adoption had been made prior to the act, he would have taken the whole property divesting the widow entirely. Under the Hindu succession Act, 1956, the widow gets an absolute estate. But as the property was ancestral property it was contended that the widow's position was similar to that of a last surviving coparcener and so, on adoption she will be entitled to half of it as full owner and the adopted son takes the other half. Such a contention had been accepted earlier in Hira Bai v. Babu Manuka lngale. The full bench has now overruled this decision. It holds :--

(i) the widow gets a full estate under Sec. 14 of the Hindu succession Act, 1956.

(ii) The adoption does not relate back to 1934 when the father died.

(iii) The adopted son cannot divest any vested estate.

The result is that the widow retains the entire property though it was joint family property.

3) In Hindu family 'A' is a coparcener in a joint family. He is given in adoption. Does he lose his Coparcenary in the genitive family ?

Solution --> 

            According to the Pre-Act law he would lose all his interest in the genitive family. But under the proviso to Sec. 12 vested rights are not affected. The coparcenary right is a vested right as it can now be disposed of by transfer inter vivos or by will and it is also inheritable. So this right of A is not affected by the adoption. In other words, his interest in the coparcenary property will after the adoption continue as property of the adoptive family

    However, in Basant v. Datta, it has been observed that no interest is vested in a coparcener and by virtue of Sec. 6 of the Hindu succession Act if the interest of the coparcener passes on to her that interest is not being vested in her, with the result that when later on she adopts a son, that son becomes corparcener in the coparcenary headed by the brother of the deceased.


Post a Comment

See Also..