DOCTRINE OF RELATION BACK UNDER HINDU LAW :

A CASE LAW STUDY

Vijender Kumar

Introduction
There has been a fierce controversy pertaining to the principles governing adoption of a son
made by a Hindu widow to her deceased husband under the Sastric law. The controversy is equally
alive even after the emergence of the statutory law of adoption in 1956.1 The concept of sonship in
Hindu law cannot be properly understood without examining the most ancient written records
depicting the civilization and cultural history of India which can be traced from the time of Rigveda.
Vedic literature is the mirror of the Aryan culture in India. From the study of Aryan culture it becomes
amply clear that the doctrine of paternity was well known and understood by the Aryans during
Rigvedic times; the conspicuous absence of secondary sons fortifies this view further, and it explains
the absence of any term for artificial sons in Aryan languages.2 However, the idea of adoption appears
in the Sanskrit literature at a later date. But in Aryan culture evidence of recognition for secondary
sons is not available during the Vedic period.
Concept of Sonship in Rigveda
A study of the Rigveda reveals that in the pre-Rigvedic period there might have existed,
probably, a practice of owning sons of others but the Rigvedic seers clearly had the preference for an
Aurasa son. Rigvedic verses clearly contain this idea.
Parisdyam hyaranasya rekno nityasya rayah patayah syama na
seso agne anyajatamastyacetanasya ma patho vi dukush.
Nahi grabhayaranah susevoanyodaryo manasa mantava vadha
cidokh punaritsa etya ano vajyabhisaletu navyah.3
As the wealth (son) of another (who is unconnected) is to be avoided, so may we be masters
of wealth of our own (i.e. son of our body); O! Agni, the child of another cannot be one's offspring; it
may be so in the case of the fool; do not spoil our path. A stranger, born of another's loins, though
very pleasing, should not be taken, should not be even thought of in the mind (as one's son). Then he
goes back to the same house (from which he came); may a vigorous, victorious, newly born son
come to us.4
The Rigvedic seers did not approve of any other type of sons except the Aurasa son, but they
were aware of the practice of owning sons procreated by others which the Vedic seers denounced.
Commenting on the Rigvedic texts, Sen Gupta says : "At the same time this text of Rigveda discloses
an awareness of the existence of the practice of recognising at least one kind of secondary son, the
Kshetraja of later law, sons begotten on one's wife by somebody else, a practice which the Veda
strongly condemns as the "path of fools". It seems that the "path of fools" referred to here refers to
practices of other communities round about Aryan settlements among whom Levirate was a
recognised institution. The firmness of the repudiation of it may also indicate that this loose practice

 The original research paper was published in Andhra University Law Journal, Vol. 4, 2001, pp. 73-103.
 Professor of Law, Commonwealth Fellow and Head, Centre for Family Law, NALSAR University of Law,
Justice City, Shameerpet, R.R.Dist., Hyderabad - 500078.
1. The Hindu Adoptions and Maintenance Act 1956
2. N.C. Sen Gupta, THE EVOLUTION OF LAW, 3rd ed., p.56.
3. Rigveda, VII 4, 7-8.
4. P.V. Kane, HISTORY OF DHARMASASTRA, 2nd ed. Vol. III, pp. 656 - 657. Also see Vedic Index 1, 486,
487, Rigveda, VII, 3, 10; However, Vedic seers were aware of the practice of sons as Kanin, Putrikaputra,
Kshetrajna and Dattaka; See Rigveda VIII, 46, 21; Vedic Index II, 17; J.C. Ghose, THE PRINCIPLES OF
HINDU LAW, Vol. 1, p. 639.

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may have been creeping into Vedic society to some extent so as to call for this vigorous
denunciation."5
The importance attached to Aurasa son and denouncement of the practice making other's son
ones own establishes beyond doubt that during the Rigvedic period Aryans did not recognise
secondary sons. It is at the later stage of the development of society that secondary sons were
recognised. The Vedic society, pure and simple, did not recognise secondary sons. In the Grihyasutras
there is no mention of rituals pertaining to raising son on other's wife.6 Manu also refers to the
absence of any ritual on Niyoga. "In the sacred texts which refer to marriage the appointment (of
widows) is nowhere mentioned, nor is the re-marriage of widows prescribed in the rules concerning
marriage."7
Aurasa Son under Hindu Law
Aurasa son in ancient Indian law and culture occupies a very high status. It was the Aurasa
son who was desired and through whom the Vedic seers and ancient Indian thinkers considered
themselves to be immortal. Hence, the Aurasa son was desired. It is from the Rigvedic8 period down
to this day that the prayer for Aurasa son is being made. The Sutrakaras and the Dharmasastrakaras
have defined the Aurasa son in an unambiguous way. Apastamba defines an Aurasa son as sons
begotten by a man who approaches in the proper season a woman of equal caste, who has not
belonged to another man, and who has been married legally, (sastravihita) have a right to (follow) the
occupations (of their castes) and to inherit the estate.9
Baudhayana like Apastamba defines the Aurasa son in the same way. He states that one must
know a son begotten by (the husband) himself on a wedded wife of equal caste (to be) a legitimate son
of the body (Aurasa). Now they quote also (the following verse); 'From the several limbs (of my
body) art thou produced, from my heart art thou born; thou art "self" called a son; mayest thou live a
hundred autumns.'10
Apastamba and Baudhayana both insist that the Aurasa son is only one who is born of a wife
of the same Varna. This view has not been followed by the later Dharmasutrakaras and the
Dharmasastrakaras. Vasishtha defines the Aurasa son who is assigned the first place among the
twelve kinds of sons, who is begotten by the husband himself on his lawfully wedded wife. Vasishtha
does not insist that the married wife should be of the same Varna as that of the husband.11 Vishnu
Dharmasutra defines the Aurasa son as the son of the body, viz, he who is begotten (by the husband)
himself on his own lawfully wedded wife.12 Unlike Baudhayana and Apastamba, Vishnu Dharmasutra
does not speak of the same Varna of the wife as that of the husband.
Manu defines an Aurasa son as one whom a man begets on his own wedded wife, let him
know to be a legitimate son of the body (Aurasa), the first in rank.13 Manu speaks only of the wedded

5. N.C. Sen Gupta, EVOLUTION OF ANCIENT INDIAN LAW, TLL 1950 (1953), p. 138 There was
emphasis on Aurasa son and the disapproval for Niyoga is indicated by the insistence on the need for
morality. Manu clearly says : many thousands of Brahmanas who were chaste from their youth, have gone
to heaven without continuing their race. A virtuous wife who after the death of her husband constantly
remains chaste, reaches heaven, though she have [sic]no son, just like those chaste men. Manu, V, 159 -160
SBE Vol. 25, pp. 196-197.
6. None of the Grihyasutras which are complete codes of domestic rituals of Vedic society, covering the life of
every man, from conception to cremation, has any ritual for making a secondary son. It is hardly conceivable
that an important social institution like son-making, if it existed, should not have had an appropriate ritual. In
the Grihyasutras in which rituals, connected with marriage and marital relations, as well as with the
conception birth and Samskaras of sons, apply only to the wedded wife and Aurasa son, there is no ritual
connected with the making of a son in any way but by begetting him on one's wife. Ibid, p. 139.
7. Manu, IX, 65 SBE Vol. 25. p. 339.
8. Rig., VII, 4, 7-8.
9. Savarnapurvasastraihitayam yathartw gachtah putrastesam karmablih sambandhah. Ap D. II, 6, 13, 1;
Apastamba, II, 6,13,1, Vol. 2, pp. 130-131. According to Shastric law conception as well as birth in lawful
wedlock was essential to constitute the son as an Aurasa son is in the real sense of the term. See Mit., on
Yajn., 1, 52; G.N. Jha, HINDU LAW IN ITS SOURCES, Vol. II, pp. 175-176.
10. Savarnayam sanskar yamupadetamaurasam putram vidyat, Baudhayana, II, 2,3,14, SBE Vol. 14, p. 226.
11. Vasishtha, XVII, 13 SBE Vol. 14, p. 85.
12. Vishnu, XV, 2, SBE Vol.7, p. 61.
13. Manu, IX, 166, SBE Vol. 25, p. 361.

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wife and does not require that the wife should be of the same Varna. Kautilaya says that an Aurasa
son is one who has been procreated by a man himself on his wedded wife according to the rules of
Sastra.14 The Aurasa son is in fact a son born in a lawful wedlock. Gradually the Varna of the wife
became irrelevant, at least in the case of an Anuloma marriage.15
The definition of the Aurasa son was subjected to judicial scrutiny in Pedda Amani v.
Zemindar of Marungpuri.16 The Privy Council following the English law did not approve of the
Indian definition of Aurasa son. The council made modifications in this definition and held that
procreation after marriage was not distinctly necessary for legitimacy as a son even according to the
ancient texts, that to hold so would be an inconvenient doctrine and that the Hindu law is the same in
that respect as the English law. This decision of the Privy Council being the law of the land is based
on the English conception of legitimacy and on the Section 112 of the Indian Evidence Act 1872.17
This decision has been criticised and rightly so by Gooroodass Banergee in his Tagore Law
Lectures 1878 entitled the Hindu Law of Marriage and Stridhan. He says that the Hindu law of
legitimacy is even stricter than the English law. Manu defines the Aurasa son or son of the body, thus:
"Him whom a man has begotten on his own wedded wife, let him know to be the first in rank,
as the son of his body." (IX.166.). And to the same effect are the texts of Vasistha, Devala,
Baudhayana, Apastamba, and Yajnavalkya. According to the Hindu sages, therefore, in order to
constitute legitimacy, there must be not only birth but also procreation in lawful wedlock; and some of
the leading commentators, such as Kulluka, Vijnaneswar, and Nilkantha, confirm this view of their
texts. The Privy Council have however, taken a different view. Sir Barnes Peacock in delivering the
judgment of the Judicial Committee in the case of Pedda Amani v. Zemindar of Marungpuri,18
observed : "The point of illegitimacy being established by proof that the procreation was before
marriage, had never suggested itself to the learned Counsel for the Appellant at the time of the trial,
nor does it appear from the authorities cited to have been distinctly laid down that, according to Hindu
law, in order to render a child legitimate, the procreation as well as the birth must take place after
marriage. That would be a most inconvenient doctrine. If it is the law that law must be administered.
Their Lordships, however, do not think that it is the Hindu law. They are of opinion that the Hindu
law is the same in that respect as the English law." This decision, so long as the Privy Council do not
think it fit to re-consider the point, must be received as the law on the subject. But with every respect
that is due to the decision of the highest tribunal for India, I may be permitted to say that the doctrine
that procreation in lawful wedlock is necessary to constitute legitimacy, is not only supported by the
language of the texts cited above, but is also in accordance with the general spirit of the Hindu law, by
which the nuptial rites are primarily meant only for virgins; while the necessity of marrying girls
before puberty, reduces the practical inconvenience of the doctrine within the narrowest possible
limits.19
Various types of Sons : Under Old Hindu Law
The practice of secondary sons was well established during Dharmasutra period. It is
certainly after a pretty long course of evolution that different conceptions of sonship came into
existence. There is an elaborate discussion on different types of son, in different Dharmasutras. It is
interesting to note that various Dharmasutras give different types of secondary son, some of them are
placed in the category of heirs while others are considered as kinsmen. There are twelve or thirteen
kinds of son enumerated in different Dharmasutras. Of course, fifteen types of son have also been

14. Svayamjatah Kritkriyamaurasah, Arth, III, 7.

15. P.V. Kane, says that "such medieval works as the Mit. (on Yaj. II, 133), the Parijata and Apararka hold that
even the son procreated on a wife married in the anuloma order (e.g., the son of a Brahmana from a
Ksatriya wife or of a Ksatriya from a Vaisya caste wife) was also Aurasa. The exception was the son of a
Brahmana from a Sudra wife, who was called Saudra or Parasava and distinguished from the technical
Aurasa. From the definition of Aurasa given by all Smriti writers (and the dicta of such commentaries as the
Mit.) it follows that in order to be an Aurasa the procreation and the birth of the son must both be after the
marriage"., P.V. Kane, HISTORY OF DHARMASASTRA, 2nd ed. Vol. III, p. 656.
16. 1 IA 282, 293.
17. P.V. Kane, op. cit. n. 15, p. 656.
18. Supra n. 16.
19. Gooroodass Banerjee, THE HINDU LAW OF MARRIAGE AND STRIDHAN, TLL 1878, pp. 161-162.

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mentioned by some writers. The doctrine of relation back concerns only with the adopted son,
therefore, detailed discussion on various types of son will not be relevant in the context.
Adopted Son : Under Old Hindu Law
The whole law of adoption before statutory amendments was rightly said to have been based
on a few texts of ancient Indian legal literature and a metaphor of Saunaka. The metaphor of Saunaka,
is that the boy to be adopted must bear "The reflection of a son." The texts are those of Manu,
Vasishtha, Baudhayana, Saunaka and Sakala.20 Generally, in the text of Manu which has influenced
the development of the law of adoption in Hindu law is contained in chapter IX of the code of Manu.
The other text deals with the problem of inheritance and allows the adopted son to take the inheritance
after the Aurasa son and the appointed daughter's son.21 There is another text of Manu which states
the secular and religious consequences of the adoption.22
Various types of Son : Under Modern Hindu Law
(i) The Aurasa son as defined under the doctrine of Pedda Amani v. Zemindar of Marungpuri.23
(ii) An adopted son made under Section 7, by the husband and the wife together.
(iii) An adopted son made by a widow or a wife whose husband has 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. Such son adopted by a married Hindu female relates to the husband under
the law laid down by the Supreme Court in Sawan Ram's24 case.
(iv) An adopted son made by a single woman who is either unmarried or if married, her marriage
has been dissolved by a decree of divorce.
(v) An adoption made by a single male under Section 7, of the Act.
(vi) A son partially legitimate under Section1 16 of the Hindu Marriage Act 1955.
(vii) The son born of a marriage that has been repudiated under Section 13(2) (iv) of the Hindu
Marriage Act 1955.
(viii) A son born of a putative marriage, i.e., the marriage of whose parents is incomplete because
of the non observance of certain ceremonies or formalities as declared by the Supreme Court
in Bhau Rao Shanker Lokhande25 line of cases. Such a child is the offspring of a union
which must be treated as a putative marriage, consisting of the parties who treat themselves
as wife and husband, though certain formalities regarding marriage remains to be done.
(ix) The son born of a woman who was pregnant at the time of marriage.
(x) Illegitimate son.

Thus these various types of son are neither equal in status nor in rights. Hence, the Act has
not made any definite improvement in the concept of sonship, rather the Act has introduced various
type of children having unequal social status and rights. There is always a possibility of emerging the

20. John D. Mayne, TREATISE ON HINDU LAW AND USAGE, 11th ed. 1950, p. 188.
21. Of the man who has an adopted (Datrima) son possessing all good qualities, that same (son) shall take the
inheritance, though brought from another family. Vas. XV, 9-10; Baudh, Parisishta 16, Medh., Kull, and
Ragh, refer this rule to the case where a man has a legitimate son and an adopted son, and think that in such
a case the latter, being eminently virtuous, shall receive, like a Kshetraga (see verse 146), a fifth or sixth
part of the estate. Medh. remarks that some think he is to have half, but that their opinion is improper, and
finally that Upadhyaya, i.e., his teacher, allots to the adopted son less than to the Kshetraga. Kull. and Ragh.
state that Gov. took the verse to mean that an eminently virtuous adopted son shall inherit on failure of a
legitimate son and of the son of the wife, but that this explanation is inadmissible on account of verse 165.
Nevertheless Ragh. reproduces Gov.'s opinion; Nar. says, ‘It has been declared that an adopted son receives
a share like the chief son, when he is eminently virtuous'. Nand. reads at the end of the second line,
samprapto ‘sya na putrakah', shall take the inheritance, (provided) the (adoptive father ) has no son'. Manu,
IX, 141, SBE Vol. 25, p. 355.
22. An adopted son shall never take the family (name) and the estate of his natural father; the funeral cake
follows the family (name) and the estate, the funeral offerings of him who gives (his son in adoption) cease
(as far as that son is concerned). Medh, mentions another 'improper' explanation, according to which haret,
'shall take', is to mean harayet, 'shall allow to be taken', and the purport of the verse is that 'he is to benefit
both (fathers) like a Dvyamushyayana'. Manu, IX, 142, SBEVol. 25, p. 355.
23. (1874) 1 IA 282, 293.
24. Sawan Ram v. Kalawanti AIR 1967 SC 1761.
25. Bhau Rao Shanker Lokhande v. State of Maharashtra AIR 1965 SC 1564.

4
other types of son under the Act. Sonship as a concept in the modern scientific age, is the simplest one
which in the case of doubt may be ascertained with as much certainty as the maternity. The only thing
is the lack of desire on the part of the law makers not to streamline the progeny on scientific grounds.
In the modern age the definition of the child needs to be changed. Old definition of the child should
be discarded in the social interest of the child.26
Gradual social reform is being introduced to legitimise the children who are otherwise
illegitimate. Section 2 of the Legitimacy Act 1976 of England provides that where the parents of an
illegitimate person marry, the marriage shall, render the child legitimate. Section 3 of the same Act
goes still further. It reads :
Where the parents of an illegitimate person marry one another and the father of the
illegitimate person is not at the time of the marriage domiciled in England and Wales
but is domiciled in a country by the law of which the illegitimate person became
legitimated by virtue of such subsequent marriage, that person, if living, shall in
England and Wales be recognized as having been so legitimated from the date of the
marriage notwithstanding that, at the time of his birth, his father was domiciled in a
country the law of which did not permit legitimation by subsequent marriage.27
Such steps, gradually, may eliminate the concept of illegitimate child; when successful, the
sonship conception will wear its real form and the types of secondary son phrase will become
redundant.
Relation Back Doctrine in Old Hindu Law
There has been a controversy as to the actual date of operation of adoption with regard to the
rights of heirship of the adopted son to the property of his adoptive father and his collaterals. So far
the heirship to the property of his adoptive father is concerned the adopted son's rights of heirship
were clearly defined. The adopted son was considered to have been in existence at the time of the
death of his adoptive father, and he was consequently the heir to his pre-deceased adoptive father's
property. The doctrine of relation back which originally meant the relating of the fact of adoption with
the date of death of the adoptive father, the widow's deceased husband, was on logical grounds
considered to relate back to the death of a collateral also who had inherited the property of the
adoptive father, and the consequence of such relation back was to divest a person who had not only
inherited the property of the adoptive father but also the property of a collateral which got vested in
other heirs who would not have inherited the property had the adopted son been adopted before the
death of the collateral. The controversy as to the divesting of a collateral's property had engaged the
attention of the judiciary for quite a very long time. It was understandable that for the purpose of
divesting the estate of adoptive father, the adoption related back to the date of the adoptive father's
death. It was in 1886 that Judicial Committee of the Privy Council in Bhubaneswari Debi v.
Nilkomul28 held that the right of the adopted son relates back to succeed the property of the adoptive
father but it does not extend to the property of a collateral. But the Privy Council in Anant v.
Shankar29 stretched the fiction of relation back to its logical consequences and held that a valid
adoption by a widow would divest not only the property of his adoptive father but even the property
of a collateral which got vested in other heir because the adoption was not made at that time when the
collateral died. This case completed the full circle in the sphere of relation back jurisprudence.
The Privy Council reviewed in detail the case law relating to adoption by the widow and the
question of vesting and divesting of property.30 The Privy Council observed that "the adoption being

26. Shaw v. Gould (1868) LR 3, HL 55.

27. G.C. Cheshire, PRIVATE INTERNATIONAL LAW, 10 th ed. Ch. XIII, p. 453.
28. (1886) 12 IA 137-141.
29. (1943) 70 IA 232.
30. Chandra v. Gojarabai (1890) ILR 14 B. 463; Bhimabai v. Gurunathgouda Khandappagouda (1932) LR 60
IA 25-40; Madana Mohana v. Purushothama Ananga (1914) ILR 38 M. 1105-1118; Panyam v.
Ramalakshmamma (1931) ILR 55 . M. 581-590; Balu Sakharam v. Lahoo Sambhaji ILR (1937) B. 508;
(1937) 170 IC Bom., 393; Amarendra Mansingh v. Sanatan Singh (1933), LR 642; Vijaysingji
Chhattrasingji v. Shivasangji Bhimsangji (1935) LR 62; IA 161, 165; Bajirao v. Ramakrishna ILR (1941)
Nag, 707; K.R. Sankaralingam Pillai v. Veluchami Pillai AIR 1943 Mad 43; Raghunadha v. Brozo Kishoro

5
valid cannot be refused effect. That the property had vested in the meantime in the heir of Keshav is
not of itself a reason, on the principles laid down in Amarendra's31case why it should not divest and
pass to the appellant.”32
After reviewing the case law the Judicial Committee of the Privy Council held :
If the effect of an adoption by the mother of the last male owner is to take his estate
out of the hands of a collateral of his who is more remote than a natural brother would
have been, and to constitute the adopted person the next heir of the last male owner,
no distinction can in this respect be drawn between property which had come to the
last male owner from his father and any other property which he may have acquired.
Keshav's separate watan property devolves not on his mother who would be his heir
at the general law, but on the nearest male in the line of heirs; and if the appellant's
adoption as son to Bhikappa puts him in that position, his right to succeed cannot be
limited to such watan property as Keshav derived from Bhikappa. On this ground the
appellant's suit succeeds as regards the two parcels of land which Keshav inherited
from Narayan.33
The decision of the Judicial Committee of the Privy Council thus overruled the decision in
Bhubaneswari Debi v. Nilkomul.34 The decision in Bhubaneswari Debi was that the adopted son's
right emerging from the doctrine of relation back did not extend to divest the property of a collateral.
The implications of Anant's35 case was that a valid adoption by a widow is given complete logical
effect which resulted in divesting not the property of the adoptive father but also the property which
never came into the hands of the adoptive father. In Anant's36 case the property which was divested
was not the joint family property of the adoptive father, but the separate property of Keshav which
came in the hands of Keshav from Narayan to which Anant would definitely have been the
preferential heir if he would have been adopted prior to the death of his adoptive father, i.e., in 1905,
then naturally he (Anant) would have succeeded to Narayan in preference to Shankar. The course of
events is thus stated. "In 1908 Narayan died, leaving a widow but no issue, and the widow having in
or about that year remarried, the two plots which were his separate property devolved by inheritance
on Keshav as being his nearest reversioner at the date of the remarriage. Keshav lived till 1917, when
he died unmarried. At that date his nearest heir was the respondent Shankar, a somewhat remote
collateral, who obtained possession of the suit properties from the collector in 1928 despite
Gangabai's opposition. Thereupon, in 1930, Gangabai adopted the appellant Anant as a son to her
deceased husband Bhikappa, and in 1932, as next friend of her adopted son, brought the suit which
was now before the Board."37
The decision as to the divesting of property from Shankar inherited in 1908 from Narayan, a
remote collateral, has the effect that the adopted son is considered to be in existence in the family of
his adoption from the date of the death of his adoptive father which made him entitled to the property
not only of his adoptive father but also to claim as an heir of any relative to whom he would have
been entitled to inherit, if he would have been adopted in fact in 1905. The fiction that related back to
the date of the death of the adoptive father gave rise to another fiction that the adoption also related
back to the date of the death of a collateral. A fiction over a fiction has been created by the ruling of
Anant v. Shankar.38 Again, Anant's case ruling unsettled the law already settled since 1886 by the
Privy Council in Bhubaneswari's39 case. In order to avoid the hardship of divesting the collateral's
estate by the adopted son, the courts in India took resort to the practice of either side away the

(1876) LR 3 IA 154; Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 MIA 279 - 307;
Veeranna v. Sayamma (1928) ILR 52 M. 398.
31. LR 60 IA 242.
32. Supra n. 28, p. 238.
33. Supra n. 28, p. 243.
34. Supra n. 27.
35. Supra n. 28.
36. Supra n. 28.
37. Supra n. 28, pp. 234-235.
38. Supra n. 28.
39. Supra n. 27.

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Anant's40 decision or distinguished it. The Patna High Court in Shri Chandra Choor v. Bibhuti
Bhushan41 did not refer to the Anant's42 case which had the direct bearing on the case before the Patna
High Court. The Bombay High Court took to the practice of distinguishing in Dattatraya v. Vaman43
the facts in the case were that on the death of a sole surviving coparcener the non watan properties of
the deceased devolved by succession upon the widow of a collateral while the watan properties
devolved upon the deceased's remoter male heirs A,B. Thereafter A's widow made an adoption of S to
her deceased husband. S sued A,B for recovery of watan properties on the ground that his adoption
related back to the date of the death of his adoptive father as well as to the date of the death of the
collateral. The Bombay High Court on the basis of the technique of distinguishing the Anant's44 case
held that the adoption cannot divest watan properties which were already vested in the defendant.
In Jivaji Annaji v. Hanmant Ramchandra,45 the Bombay High Court adhered to the Hindu law
rule that the adopted son cannot divest the property of a collateral relying on Bhubaneshwari's46 case
as reaffirmed in Anant's47 case though the Privy Council did not apply Bhubaneshwari's48 case rule to
the facts of Anant's49 case. The Madras High Court reviewed the law regarding the divesting of the
collateral's estate and arrived at the decision that the doctrine of relation back to the adopted father's
death does not extend to the collateral's date of death. The adopted son, therefore, cannot divest the
estate of a collateral which already vested in the heir of the collateral before the adoption. This view
was affirmed again in Shammugavedivalu v. Kuppu Swami.50
Notwithstanding, the following of Bhubaneshwari's51 rule, the highest judicial authority in
52
Anant's case held that adopted son can divest the property vested in an heir of a collateral stared
hard. Therefore, the controversy needed to set at rest which the Supreme Court finally resolved by
expressly curtailing the scope of the doctrine of relation back by overruling Anant v. Shankar53
partially. In Srinivas v. Narayan54 the Supreme Court reviewed almost the entire relevant case law. In
this case the contention of the appellant based on the decision of the Privy Council in Anant's case
was that on adoption the adopted son acquired all the rights of an 'Aurasa' son, that these rights related
back to the date of the death of the adoptive father, and that in consequence his right to share in the
joint family properties and to inherit from the collaterals should both be worked out as from that date.
The contention of the respondents based on - Jivaji case was that the doctrine of relation back
did not extend to properties which were inherited from a collateral. The question thus raised was one
of considerable importance, and involved a decision as to the correctness of the law laid down in
Anant's case considering the question on principle, the ground on which an adopted son is held
entitled to take in defeasance of the rights acquired prior to his adoption is that in the eye of law his
adoption relates back, by a legal fiction to the date of death of his adoptive father, he being put in the
position of a posthumous son, as observed by Ameer Ali J., in Pratapsingh Shivsingh v. Agarsingh
ji.55
Again it is to be remembered that an adopted son is the continuator of his adoptive father's
line exactly as an Aurasa son, and that an adoption, so far as the continuity of the line is concerned,
has a retrospective effect; whenever the adoption may be made there, it is no hiatus in the continuity
of the line. In fact, as West and Buhler point out in their learned treatise on Hindu law, the Hindu

40. Supra n. 28.

41. (1944) 23 Pat 763.
42. Supra n. 28.
43. (1950) ILR Bom 358.
44. Supra n. 28.
45. (1950) ILR Bom 510 (FB).
46. Supra n. 27.
47. Supra n. 28.
48. Supra n. 27.
49. Supra n. 28.
50. AIR 1954 Mad 705.
51. Supra n. 27.
52. Supra n. 28.
53. Supra n. 28.
54. AIR 1954 SC 379.
55. AIR 1918 (PC) 192, 194: (1918) 43 ILR Bom 778.

7
lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the
death of the widow renders the continuation of the line by adoption impossible.
It is on this principle that when a widow succeeds her husband's estate as heir and then makes
an adoption, the adopted son is held entitled, as preferential heir, to divest her of the estate. It is on the
same principle that when a son dies unmarried and his mother succeeds his estate as his heir, and then
makes an adoption to her husband, that adopted son is held entitled to divest her of the estate, vide
Vellanki Venkata v. Venkatarama56 and Verabhai v. Bai Hiraba.57
The application of this principle when the adoption was made to a deceased coparcener raised
questions of some difficulty. If a joint family consisted of two brothers A and B, and A died leaving a
widow W and the properties were taken by survivorship by B, and then W took a boy X in adoption,
the question was whether the adopted son could claim one half share in the estate to which A was
entitled. It was answered in the affirmative on the ground that his adoption related back to the date of
the death of A. But suppose before W makes an adoption, B dies leaving no son but a widow C and
the estate devolves on her, can W thereafter make an adoption so as to confer any rights on X to the
estate in the hands of C? It was held in Chandra v. Gojarabai,58 that the power to make an adoption so
as to confer a right on the adopted son could be exercised only so long as the coparcenary of which
the adoptive father was a member subsisted, and that when the last of the coparceners died and the
properties thereafter devolved on his heir, the coparcenary had ceased to exist, and therefore W could
not adopt so as to divest the estate which had vested in the heir of the last coparcener.59
This observation, it is submitted was of doubtful authority, the adoption in Chandra v.
Gojarabai's60 case was analysed in right perspective by the Bombay High Court in Balu Sakharam v.
Lahoo Sambhaji.61
In Chandra's62 case, there was a joint family consisting of a father and two sons Bhau and
Nana. Bhau died first leaving a widow, then the father died and Nana succeeded the joint family
property. Nana afterwards died leaving a widow Gojarabai, who got possession of the property. After
Nana's death Bhau's widow adopted the plaintiff as son to her husband, and brought a suit against
Gojarabai to recover the property from her. The court held that Nana, as the last surviving coparcener,
became the absolute owner of the property, that on his death the coparcenary was at an end and the
property vested in his widow as his heir. The subsequent adoption by Bhau's widow did not divest the
estate of Gojarabai since the brother's son was a more remote heir, from the point of view of
inheritance, to the last survivor than the widow. The court did not in terms hold that the adoption by
Bhau's widow was invalid, though there is a dictum by the Privy Council in Bhimabai Jivangouda v.
Gurunath Gouda,63 that such was the effect of the decision. In view of Amarendra Mansingh v.
Sanatan Singh,64 the adoption in Chandra's65 case must be treated as valid, and if the decision was
otherwise, it must be treated to that extent as overruled, but the real question is whether the decision
stands in relation to its effect upon the vesting of property. In fact, the effect of adoption by the widow
of a deceased coparcener has the effect of reviving the coparcenary, if the adoption is otherwise valid,
i.e., widow's power to adopt has not come to an end and if that is so, there can be no doubt that the
adopted son of the deceased coparcener Bhau would take in preference to the widow of Nana.66
In Chandra v. Gojarabhai's67case the question of vesting and divesting of property was
considered. This decision became inconsistent with the decision of the Judicial Committee. The
Supreme Court referring to the Pratapsingh Shivsingh v. Agarsingji Rajasangji68 and Amarendra

56. 4 IA 1 (PC).
57. 30 IA 234 (P).
58. Supra n. 30.
59. Supra n. 30, pp. 384-385.
60. Supra n. 30.
61. (1937) 170 IC Bom 393: (1937) Bom 508 (FB).
62. Supra n. 30.
63. 60 IA 25: 141 IC 9: AIR 1933 (PC) 1: 57 B 157:35 Bom LR 200: (1933) ALJ 363 (PC).
64. 60 IA 242: 143 IC 441: AIR 1933 (PC) 155.
65. Supra n. 30.
66. Supra n. 30, p. 395.
67. Supra n. 30.
68. Supra n. 55.

8
Mansingh v. Sanatan Singh,69 cases agreed that the validity of the adoption has no relevance to the
vesting or divesting of property. The Supreme Court referring to Balu Sakharam's70 case observed
that in such cases the adoption would be valid but that the estate which had devolved upon the heir
could not be divested.
The Privy Council in Anant's 71 case had in unequivocal term held: "if, then, the appellants'
adoption was valid, can it be held that it does not take effect on the property which had belonged to
the joint family because there was no coparcenary in existence on the date of the adoption"? Their
Lordships differed from Balu Sakharam's72 case and gave absolute effect by holding that Anant is
entitled to divest the heir of Keshav. Before the Supreme Court the actual point for determination was
not the scope of relation back so far the claim of the adopted son relates to the estate of his father but
the actual question for determination was the point for determination whether this doctrine of relation
back can be applied when the claim made by the adopted son relates not to the estate of his adoptive
father but that of a collateral.73
In the Oxford Dictionary the world "Collateral" is defined as meaning "descended from the
same stock but not in the same line". The reason behind the rule that there should be continuity in line
does not warrant its extension to collaterals. Nor is there any authority until we come to the decision
in Anant's74 case, which applied the theory of relation back to the properties inherited from collaterals.
With reference to collateral, the governing principle was that inheritance can never be in abeyance,
and that once it devolves on a person who is the nearest heir under the law, it is thereafter, not liable
to be divested.75 The Supreme Court further referred to the authority of Mulla's HINDU LAW and
again discussed the relevant aspect of the principle of relation back.
On the death of a Hindu, the person who is then his nearest heir becomes entitled at
once to the property left by him. The right of succession vests in him immediately on
the death of the owner of the property. It cannot under any circumstances remain in
abeyance in expectation of the birth of a preferential heir, where such heir was not
conceived at the time of the owner's death". "Where the estate of a Hindu has vested
in a person who is his nearest heir at the time of his death, it cannot be divested
except either by the birth of a preferable heir such as a son or a daughter, who was
conceived at the time of his death, or by adoption in certain cases of a son to the
deceased.76
The Supreme Court found that the Privy Council had widened the scope of the doctrine of
relation back by allowing Anant entitled to the properties inherited by Keshav from Narayan. In the
opinion of the Supreme Court it was difficult to follow the Anant's77 case and, therefore, the Supreme
Court did not find it difficult to expressly curtail the scope of the relation back doctrine propounded in
Anant's78 case and, therefore, Anant v. Shankar79 was partially overruled by the Supreme Court.
The fact is, as frankly conceded by the learned Judges, they were puzzled by the decision in
Anant's 80 case and as it was an authority binding on the Indian Courts, they could not refuse to follow
it, and were obliged to discover a distinction. This court, however, is not hampered by any such
limitation, and is free to consider the question on its own merits. In deciding that an adopted son is
entitled to divest the estate of a collateral, which had devolved by inheritance prior to his adoption.
Anant's81 case went far beyond what had been previously understood to be the law. It is not in

69. Supra n. 31.

70. Supra n. 30.
71. Supra n. 28.
72. Supra n. 30.
73. AIR 1954 SC 379-385.
74. Supra n. 28.
75. AIR 1954 SC 379-385.
76. Supra n. 54, p. 385.
77. Supra n. 54.
78. Supra n. 54.
79. Supra n. 54.
80. Supra n. 54.
81. Supra n. 54.

9
consonance with the principle well - established in Indian jurisprudence that an inheritance could not
be in abeyance, and that the relation back of the right of an adopted son is only 'quoad' the estate of
the adoptive father. Moreover, the law as laid down therein leads to results which are highly
inconvenient. When an adoption is made by a widow of either a coparcener or a separated member,
then the right of the adopted son to claim properties as on the date of the death of the adoptive father
by reason of the theory of relation back is subject to the limitation that alienations made prior to the
date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees
from limited owners, whether they be widows or coparceners in a joint family, are amply protected.
But no such safeguard exists in respect of property inherited from a collateral, because if the adopted
son is entitled on the theory of relation back to divest that property, the position of the mesne holder
would be that of an owner possessing a title defeasible on adoption, and the result of such adoption
must be to extinguish that title and that of all persons claiming under him. The alienees from him
would have no protection, as there could be no question of supporting the alienations on the ground of
necessity or benefit. And if the adoption takes place long after the succession to the collateral had
opened in this case it was 41 years, thereafter-and the property might have meanwhile changed hands
several times, the title of the purchasers would be liable to be disturbed quite a long time after the
alienations. We must hesitate to subscribe to a view of the law which leads to consequences so
inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal
fictions should not be extended so as to lead to unjust results. We are of opinion that the decision in
Anant's82 case in so far as it relates to properties inherited from collaterals is not sound, and that in
respect of such properties the adopted son can lay no claim on the ground of relation back.83
The controversy in the case law as to the doctrine of relation back thus was finally settled in
1954 by the Supreme Court. But there was much more in the womb of the future for the doctrine of
relation back. In 1956, whatever the doctrine of relation back was left was erased by the Act of the
Parliament.84
Relation Back Doctrine in Modern Hindu Law
The doctrine of relation back in the law of adoption has been abrogated by Section 12 of the
Hindu Adoptions and Maintenance Act 1956 which reads : 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 birth shall be deemed to
be severed and replaced by those created by the adoption in the adoptive family:
Provided that:
(a) the child cannot marry any person whom he or she could not have married if he or she
had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest
in such person subject to the obligations, if any, attaching to the ownership of such
property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her
before the adoption.
A reading of Section 12 gives an idea of the culmination of the law of adoption as to its effect
on the status of the adoptive child and its result on proprietary rights. Section 12 recognises the
absolute substitution of the adopted child in the family of adoption like the child born in the family of
adoption and on the date of adoption all the natural ties of relationship of the child in the family of his
birth stand severed and replaced by those created by adoption in the adoptive family. However, life of
law, as Holmes observed, is not logic but has been experience. The severance of blood relationship
does not occur notwithstanding the adoption, because the adopted child is precluded to marry any
person, whom he or she could not have married, if he or she had continued in the family of his or her
birth. Again, in the family of adoption by fiction blood relationship is created in both, the lines,
paternal and maternal. The adopted child also cannot marry certain persons with whom a natural born
child of the family of adoption could not have married. Again, clause (b) of Section 12 protects the

82. Supra n. 54.

83. AIR 1954 SC 379, 387-88.
84. Section 12 (c), the Hindu Adoptions and Maintenance Act 1956.

10
adopted child to retain the property which such a child inherited or vested in the child, of course,
subject to the obligations if any attached to that property.
The clause (c) of Section 12 has expressly buried deep the doctrine of relation back which
involved the ticklish problem of vesting and divesting of property, involving the multitudinary
litigation. A reading of Section 12 makes it clear that the adopted child becomes a substitute of a
natural born child in the family of adoption. It is the date of adoption which is material for the
creation of filial relations in the family of adoption and extinction of relations in the family of birth.
All the relational ties which are snapped from the family of birth are replaced in the family of
adoption. The old Hindu law doctrine of relation back relating to vesting and divesting of property has
been abrogated. The relation back doctrine created the proprietary problem of vesting and divesting of
properties. It was in view of this fact that the Parliament has expressly done away with the doctrine of
relation back.
The Doctrine of Relation Back : Judicial Approach
Proviso (c) to Section 12 is limited to the abrogation of the doctrine of relation back relating
to proprietary interest of the adopted child. The language of proviso (c) makes this clear. It reads, "the
adopted child shall not divest any person of any estate which vested in him or her before the
adoption." But the creation of the filial relationship is severed and created from the date of adoption
and in the family of adoption relationship is replaced by those created by the adoption in the adoptive
family. This replacement is the same as the creation of ties by natural birth. Hence, all relations the
adopted child left in the family of his birth are created by virtue of the fiction of adoption in the
family of adoption which is a sort of birth in the adoptive family. Therefore, in the matter of creation
of filial relation the proprietary doctrine of relation back has no say. Rather, the Parliament has
expressly provided the substitution of family relationship from the family of birth into the family of
adoption in Section 12 of the Act. The doctrine of relation back is statutorily excluded for a very
limited purpose of vesting and divesting of property alone. The Hindu law of joint family has not been
codified and its doctrine of the survivorship and coparcenary interests in a Mitakshara joint family do
not fall into the category of the property to which the question of vesting or divesting may arise
because the adoption by a widow in a coparcenary brings into existence a new coparcener who is also
related to the deceased husband of the adopting widow. The widow's deceased husband is substituted
as father to the adoptive child. Therefore, this adopted child in the joint family is a new coparcener
whose entry entails the relationship of the adopted child with the deceased husband of the widow
under the statutory substitution rule contained in Section 12 of the Act by virtue of which the
deceased husband of the widow becomes the adoptive father of the child. Therefore, the doctrine of
relation back, so as far filial relationship is concerned has neither been abrogated nor can it be
abrogated because adoption like birth relates a person with his present and past relations. Hence, the
doctrine in this sense has been existing and, rightly so, as recognised by the judiciary. The
Parliament's intention was also not opposed to this partial existence of the doctrine of relation back. In
fact what the statutory abrogation of the doctrine of relation back has been done was the purging of
evils of the doctrine of relation back in the matter of vesting and divesting of property. S.V.Gupte has
criticised the Supreme Court decision for the revival of the doctrine of relation back but his criticism
of the decision seems hardly convincing. The study of case law will reveal the soundness and rational
approach of the Supreme Court. The first case on the subject widely discussed is Sawan Ram v.
Kalawanti.85 In order to appreciate the correct import of the case it would be appropriate to state the
facts as found in the case :
One Ramji Dass died leaving behind a widow, Smt. Bhagwani. At the time of his
death, he owned some land and a house. 4 bighas and 17 biswas of the land were
mortgaged by Smt. Bhagwani on 2nd May, 1948 in favour of respondent No.3, Babu
Ram. Later, on 22nd August 1949, she executed a deed of gift in respect of the house
and the land covering an area of 50 bighas and 14 biswas in favour of Smt. Kala
Wanti who was related to her as a grand-niece. Sawan Ram appellant instituted a suit
for a declaration that both these alienations were without legal necessity and were not

85. AIR 1967 SC 1761. For criticism see S.V. Gupte, HINDU LAW OF ADOPTION, MAINTENANCE,
MINORITY AND GUARDIANSHIP, 1st ed. 1970. The criticism of Gupte is off the mark.

11
 binding on him, claiming that he was the nearest reversioner of Ramji Dass, being his
collateral. In that suit, Smt. Bhagwani, the donee, Smt. Kala Wanti, respondent No.1,
and the mortgagee, Babu Ram, respondent No.3, were impleaded as defendants. That
suit was decreed and Smt. Bhagwani went up in appeal to the High Court. During the
pendency of the appeal, Smt. Bhagwani adopted respondent No.2. Deep Chand, the
son of Brahmanand and his wife, respondent No.1, Smt. Kala Wanti. A deed of
adoption was executed by her in that respect on 24th August 1959. The appeal was
dismissed in spite of this adoption.
Smt. Bhagwani died on 31st October, 1959, and thereupon, the appellant brought a
suit for possession of the house and the land which had been gifted by Smt. Bhagwani
to respondent No.1 as well as for possession of the land which she had mortgaged
with respondent No.3. It was claimed that Smt. Bhagwani had only a life interest in
all these properties, because she had divested herself of all the rights in those
properties on 22nd August 1949, before the Hindu Succession Act 1956 (No.30 of
1956) came into force. The adoption of Deed Chand was also challenged as fictitious
and ineffective. It was further urged that, even if that adoption was valid Deep Chand
became the adopted son of Smt. Bhagwani and could not succeed to the properties of
Ramji Dass. The suit was dismissed by the trial Court, holding that the adoption of
Deep Chand was valid and that, though Smt. Bhagwani had not become the full
owner of the property under the Hindu Succession Act 1956, Deep Chand was
entitled to succeed to the property of Ramji Dass in preference to the appellant, so
that the appellant could not claim possession of these properties. That order was
upheld by the High Court of Punjab.86
It was against this order that the appellant went in appeal to the Supreme Court. In the appeal
two questions were involved, one question relevant for present discussion was that "under the Act, an
independent right of adoption is given to a Hindu female and if a widow adopts a son, he becomes the
adopted son of the widow only and is not to be deemed to be the son of her deceased husband."87
The Supreme Court on this point examined the approach of the Andhra Pradesh High Court in
N.Hanumantha Rao v. N.Hanumayya.88 In this case the Andhra Pradesh High Court rightly held that
the right of the adopted son which had been rested on the theory of relation back could no longer be
claimed by an adopted son by virtue of the provisions of Section 12(c), but the Supreme Court did not
agree to the extension of filial relationship of the widow's adopted son to the deceased husband. The
observation of Andhra Pradesh High Court as reproduced by the Supreme Court in its judgment reads
….
The Act has made a notable departure from the previous law in allowing a widow to
adopt a son or daughter to herself in her own right. Under the Act, there is no
question of the adopted child divesting of any property vested in any person or even
in herself. The provisions of Section 13 make this position clear, by providing that an
adoption does not deprive the adoptive father or mother of the power to dispose of his
or her property by transfer inter vivos or by will…. On a fair interpretation of the
provisions of Section 12 of the Act, we are of the opinion that the Section has the
effect of abrogating ordinary rule of Mitakshara law that, as a result of the adoption
made by the widow, the adoptee acquires rights to the share of his deceased adoptive
father which has passed by survivorship to his father's brothers.89
The Supreme Court negatived the interpretation of Section 12 taken by the Andhra Pradesh
High Court in Hanumantha Rao's90 case giving its reason the Supreme Court observed:
We are unable to accept this interpretation of the provisions of the Act as taken by the Andhra
Pradesh High Court as it appears to us that the High Court ignored two important provisions of the

86. Ibid, p. 1762.

87. Ibid, p. 1763.
88. 1964-1 Andh WR 156.
89. Supra n. 85, p. 1764.
90. Supra n. 88.

12
Act and did not consider their effect when arriving at its decision. The first provision, which is of
great significance, is contained in Section 5(1) if the Act which lays down :
No adoption shall be made after the commencement of this Act by or to a Hindu
except in accordance with the provisions contained in this chapter, and any adoption
made in contravention of the said provisions shall be void.
It is significant that, in this Section, the adoption to be made is mentioned as "by or to a
Hindu". Thus, adoption is envisaged as being of two kinds. One is adoption by a Hindu, and the other
is adoption to a Hindu. If the view canvassed on behalf of the appellant be accepted, the consequence
will be that there will be only adoptions by Hindus and not to Hindus. On the face of it, adoption to a
Hindu was intended to cover cases where an adoption is by one person, while the child adopted
becomes the adopted son of another person also. It is only in such a case that it can be said that the
adoption has been made to that other person. The most common instance will naturally be that of
adoption by a female Hindu who is married and whose husband is dead, or has completely and finally
renounced the world, or has been declared by a court of competent jurisdiction to be of unsound mind.
In such a case, the actual adoption would be by the female Hindu, while the adoption will be not only
to herself, but also to her husband who is dead, or has completely and finally renounced the world or
has been declared to be of unsound mind.
The second provision, which was ignored by the Andhra Pradesh High Court, is one
contained in Section 12 itself. The Section, in its principal clause, not only lays down that the 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, but, in addition, goes on to define the rights of such an adopted
child. It lays down that from such date all the ties of the child in the family of his or her birth shall be
deemed to be severed and replaced by those created by the adoption in the adoptive family. A
question naturally arises what is the adoptive family of a child, who is adopted by a widow, or by a
married woman whose husband has completely and finally renounced the world or has been declared
to be of unsound mind even though alive. It is well recognised that, after a female is married, she
belongs to the family of her husband. The child adopted by her must also, therefore, belongs to the
same family. On adoption by a widow, therefore, the adopted son is to be deemed to be a member of
the family of the deceased husband of the widow. Further still, he loses all his rights in the family of
his birth and those rights are replaced by the rights created by the adoption in the adoptive family. The
right, which the child had, to succeed property by virtue of being the son of his natural father, in the
family of his birth, is, thus, clearly to be replaced by similar rights in the adoptive family, and,
consequently, he would certainly obtain those rights in the capacity of a member of that family as an
adopted son of the deceased husband of the widow, or the married female, taking him in adoption.
This provision in Section 12 of the Act, thus itself makes it clear that, on adoption by a Hindu female
who has been married, the adopted son will, in effect, be the adopted son of her husband also. This
aspect was ignored by the Andhra Pradesh High Court when dealing with the effect of the language
used in other parts of this Section.91
The other very important case in which the Supreme Court gave effect to the doctrine of filial
relation back by filially relating the adopted son by a widow to her deceased husband is Sitabai v.
Ramchandra.92 In this case the facts were :
Dulichand and Bhagirath were brothers and the properties concerned are, according
to the written statement of the defendant himself, ancestral. Plaintiff Sitabai is the
widow of Bhagirath, who pre-deceased Dulichand, his elder brother sometime in
1930. It is the admitted case of both the parties that after Bhagirath died, the plaintiff
Sitabai was living with Dulichand as a result of which connection an illegitimate
child defendant Ramchandra was born in 1935. Dulichand died on March 13, 1958.
Sometime before his death Sitabai adopted plaintiff No.2 Suresh Chandra and an
adoption deed was executed on March 4, 1958. After the death of Dulichand,
Ramchandra took possession of the joint family properties. The plaintiff therefore

91. Supra n. 85, p. 1765.

92. AIR 1970 SC 343.

13
 brought the present suit for ejectment of the defendant Ramchandra, the illegitimate
son of Dulichand from the disputed properties.93
The High Court held that plaintiff No.2 became the son of Plaintiff No.1 in 1958 from the
date of adoption and did not obtain any coparcenary interest in the joint family properties. The High
Court thought that on the date of adoption Dulichand was the sole coparcener and there was nobody
else to take a share of his property and plaintiff No.2 had no concern with the coparcenary property in
the hand of Dulichand.94
The Supreme Court considered first the question whether the High Court was right in holding
that plaintiff No.2 Suresh Chandra at the time of his adoption by Plaintiff No.1 did not become a
coparcener of Dulichand in the joint family properties. The Supreme Court negatived the High Court's
approach and referring to the Gowli Buddanna v. Commissioner of Income - Tax, Mysore,95 observed :
That under the Hindu system of law a joint family may consist of a single male
member and widows of deceased male members and that the property of a joint
family did not cease to belong to a joint family merely because the family is
represented by a single coparcener who possesses rights which an absolute owner of
property may possess. In that case, on Buddappa, his wife, his two unmarried
daughters and his unmarried son, Buddanna, were members of a Hindu undivided
family. Buddappa died and after his death the question arose whether the income of
the properties held by Buddanna as the sole surviving coparcener was assessable as
the individual income of Buddanna or as the income of the Hindu Undivided Family.
It was held by this Court that since the property which came into the hands of
Buddanna as the sole surviving coparcener was originally joint family property, it did
not cease to belong to the joint family and income from it was assessable in the hands
of Buddanna as income of the Hindu undivided family.96
The Supreme Court fortified its observation by referring to the decision of the Judicial
Committee of the Privy Council in Attorney General of Ceylong v. A.R.Arunachalam Chettiar.97
In that case one Arunachalam Chettiar and his son constituted a joint family governed by the
Mitakshara School of Hindu law. The father and son were domiciled in India and had trade and other
interests in India, Ceylon and far Eastern Countries. The undivided son died in 1934 and Arunachalam
became the sole surviving coparcener in the Hindu undivided family to which a number of female
members belonged. Arunachalam died in 1938, shortly after the Estate Ordinance No.1 of 1938 came
into operation in Ceylon. By Section 73 of the Ordinance it was provided that property passing on the
death of a member of the Hindu undivided family was exempted from payment of estate duty. On a
claim to estate duty in respect of Arunachalam's estate in Ceylon, the Judicial Committee held that
Arunachalam was at his death a member of the Hindu undivided family, the same undivided family of
which his son, when alive, was a member and of which the continuity was preserved after
Arunachalam's death by adoption made by the widows of the family and since the undivided family
continued to persist, the property in the hands of Arunachalam as a single coparcener was the property
of the Hindu undivided family. The Judicial Committee observed :
…….. though it may be correct to speak of him as the 'owner', yet it is still correct to
describe that which he owns as the joint family property. For his ownership is such
that upon the adoption of a son it assumes a different quality; it is such, too, that
female members of the family (whose members may increase) have a right to
maintenance out of it and in some circumstances to a charge for maintenance upon it.
And these are incidents which arise, notwithstanding his so-called ownership, just
because the property has been and has not ceased to be joint family property.
The basis of the decision was that the property which was the joint family property of
the Hindu undivided family did not cease to be so because of the temporary reduction

93. Ibid, p. 345.

94. Ibid, p. 345.
95. 60 ITR 293: AIR 1966 SC 1523.
96. Ibid, pp. 345-46.
97. (1957) AC 540.

14
 of the coparcenary unit to a single individual. The character of the property, viz. that
it was the joint property of a Hindu undivided family, remained the same. Applying
the principle to the present case, after the death of Bhagirath the joint family property
continued to retain its character in the hands of Dulichand as the widow of Bhagirath
was still alive and continued to enjoy the right of maintenance out of the joint family
properties.98
On the second question whether Suresh Chandra, plaintiff No.2, when he was adopted by
Bhagirath's widow became a coparcener of Dulichand in the Hindu joint family properties. The
Supreme Court reversed the view of the High Court that Suresh Chandra could not become the
adopted son of Bhagirath in view of the provisions of HAMA 1956. The Supreme Court referring to
the implications of Sections 5, 6, 7, 8, 12 and 1499 held :
It is clear on a reading of the main part of Section 12 and sub Section (vi) of Section 11
that the effect of adoption under the Act is that it brings about severance of all ties of the
child given in adoption in the family of his or her birth. The child altogether ceases to
have any ties with the family of his birth. Correspondingly, these very ties are
automatically replaced by those created by the adoption in the adoptive family. The legal
effect of giving the child in adoption must therefore be to transfer the child from the
family of its birth to the family of its adoption. The result is, as mentioned in Section
14(1) namely, where a wife is living, adoption by the husband results in the adoption of
the child by both these spouses; the child is not only, the child of the adoptive father but
also of the adoptive mother. In case of there being two wives, the child becomes the
adoptive child of the senior-most wife in marriage, the junior wife becoming the step-
mother of the adopted child. Even when a widower or a bachelor adopts a child, and he
gets married subsequent to the adoption, his wife becomes the step-mother of the
adopted child. When a widow or an unmarried woman adopts a child, any husband she
marries subsequent to adoption becomes the step-father of the adopted child. The
scheme of Sections 11 and 12, therefore, is that in the case of adoption by a widow the
adopted child becomes absorbed in the adoptive family to which the widow belonged. In
other words, the child adopted is tied with the relation of sonship with the deceased
husband of the adoptive widow. The other collateral relations of the husband would be
connected with the child through that deceased husband of the widow. For instance, the
husband's brother would necessarily be the uncle of the adopted child. The daughter of
the adoptive mother (and father) would necessarily be the sister of the adopted son, and
in this way, the adopted son would become a member of the widow's family, with the
ties of relationship with the deceased husband of the widow as his adoptive father. It is
true that Section 14 of the Act does not expressly state that the child adopted by the
widow becomes the adopted son of the husband of the widow. But it is a necessary
implication of Sections 12 and 14 of the Act that a son adopted by the widow becomes a
son not only of the widow but also of the deceased husband. It is for this reason that we
find in sub-Section (4) of Section 14 a provision that where a widow adopts a child and
subsequently marries a husband, the husband becomes the "step-father" of the adopted
child. The true effect and interpretation of Sections 11 and 12 of Act No.78 of 1956
therefore is that when either of the spouses adopts a child, all the ties of the child in the
family of his or her birth become completely severed and these are all replaced by those
created by the adoption in the adoptive family. In other words the result of adoption by
either spouse is that the adoptive child becomes the child of both the spouses. This view
is borne out by the decision of the Bombay High Court in Ankush Narayan v. Janabai
Rama Sawat.100 It follows that in the present case plaintiff No.2 Suresh Chandra, when
he was adopted by Bhagirath's widow, became the adopted son of both, the widow and
that of her deceased husband Bhagirath and, therefore, became a coparcener with

98. Ibid, p. 346.

99. For detail see Sections 5, 6, 7, 8, 12 and 14, the Hindu Adoptions and Maintenance Act 1956.
100. 67 Bom LR 864: AIR 1966 Bom 174.

15
 Dulichand in the joint family properties. After the death of Dulichand, Plaintiff No.2
became the sole surviving coparcener and was entitled to the possession of all joint
family properties.101
The Bombay High court in H.P.Veeresh v. Channabasamma102 distinguished the Sitabai v.
Ramchandra103 case on factual grounds and held that where a widow of a sole surviving coparcener
succeeded the property of her husband and later on if she adopted a son that son undoubtedly be the
adopted son of her husband but such a son cannot have joint ownership with his adoptive mother.
This decision is undoubtedly in line with the principle that a woman cannot be a coparcener
and therefore, the property which she inherited from her husband became the wife's property.
However, life of law is not logic but it is experience, as Justice Holmes has said.104 The Andhra
Pradesh High Court in Jupudi Venkata v. Jupudi Kesava Rao105 has rightly held that a sole surviving
coparcener so long he remains the sole surviving coparcener can dispose of his coparcenary property
like his separate property and any alienation made by him cannot be challenged by a son born to him
or adopted by him but he cannot make any alienation after the adoption in the family is made. The
Supreme Court decision in D.S.Agalawe v. P.M.Agalawe106 was followed.
The Supreme Court in the 1987 decision in Vasant v. Dattu107 very clearly spelt out the
operation of the doctrine of filial relation back.
The Supreme Court did not agree with the suggestion that on the death of a member of joint
family the property must be considered to have vested in the remaining members by survivorship. The
Supreme Court held "the property, no doubt, passes by survivorship, but there is no question of any
vesting or divesting in the sense contemplated by Section 12 of the Act. To interpret Section 12 to
include cases of devolution by survivorship on the death of a member of the joint family would be to
deny any practical effect to the adoption made by the widow of a member of the joint family. We do
not think that such a result was in the contemplation of Parliament at all."108 To steer clear a
distinction between vesting and divesting of property by succession on the one hand and acquiring an
interest in the property by survivorship on the other hand, the adopted son can acquire interest in the
property by survivorship on the basis of the fiction of the doctrine of filial relation back. The Supreme
Court explained the law on this point as follows :
We are concerned with proviso (c) to Section 12. The introduction of a member into a joint
family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of
the joint family, but it certainly does not involve any question of divesting any person of any estate
vested in him. The joint family continues to hold the estate, but, with more members than before.
There is no fresh vesting or divesting of the estate in any one.109
The Supreme Court thus in this case has confirmed the view of the Bombay High Court in
Ankush Narayan v. Janabai110 and its own view in Sitabai's111 case that a son adopted by a widow will
also become the adopted son of her deceased husband who shall become coparcener in the joint
family. The Bombay High Court in Hirabai v. Babu Manika Ingale112 seems to have given full effect
to the adoption made by a widow of sole surviving coparcener by allowing the adopted son to take
interests in the joint family property. "It is not predicated of a Hindu joint family that there must be a
male member in existence. Even after the death of the sole male member, so long as the property

101. Ibid, pp. 347-48.

102. AIR 1992 Kant 95.
103. Supra n. 92.
104. Holmes, COMMON LAW, p.1.
105. AIR 1994 AP 134.
106. AIR 1988 SC 845.
107. AIR 1987 SC 398.
108. Ibid, p. 399.
109. Ibid, p. 399.
110. AIR 1966 Bom 174.
111. Supra n. 92.
112. AIR 1980 Bom 315.

16
which was originally of the joint Hindu family remains in the hands of the widows of the members of
the family and is not divided among them, the joint family continues."113
The Bombay High Court further held that notwithstanding the fact that the property comes in
the hands of the Hindu widow, it does not lose its character as the one that belongs to the Hindu joint
family. This is more so when the Hindu widow can be the prospective mother because of the legal
capacity to adopt a child to herself and to her deceased husband. That capacity involves, as we have
indicated earlier, to have an adoptive child to herself and to her husband and to confer him with the
similar status as one that of the natural born child, which event has the legal effect of creating interest
in the joint family property if such a property exists at the date when the adoption takes effect and it
begins to operate on the principles of prospective-furthering. The entire process is voluntary. Once the
event is achieved the effect follows. Only because a particular legal effect ensues, the initial character
of voluntary act does not cease to be so and has to be continued even for the purpose of the result
from that perspective.114
The Bombay High Court further stated its conclusion in unequivocal words : We have already
indicated the other decisions of the Supreme Court, being Sawan Ram v. Kalawanti,115 Sitabai v.
Ramchandra116 and Commr.of Income-Tax v. RM.AR.AR.Veerappa Chettiar,117 which was followed
by the Supreme Court in Krishna Prasad v. C.I.T.Bangalore.118 We have, therefore, come to the
conclusion, on the authority of these pronouncements coming from the highest court and interpreting
the terms of the enactment as we find that the character of coparcenary and its property is not affected,
that its inalienable attributes are retained notwithstanding the declaration by which a Hindu female is
placed in the same position as any other Hindu male would be with regard to such property. Such a
view does not run counter, nor does it conflict with the express statement of law available in Section
14(1) of the Succession Act.119
The Bombay High Court in Krishnabai Shivram v. Ananda Shivram120 held that Section 12 of
HAMA 1956 could not have the effect of divesting a person of his property which vested in a last
surviving coparcener. In this case the court distinguished its own judgment given by Division Bench
in Y.K.Nalavade v. Ananda G.Chavan121on the ground that the ratio of the judgment would have no
application to the facts of the Krishnabai's122 case. In Y.K.Nalavade123 case the Bombay High Court
had held that the incidents of joint family properties and interest of the incoming and outgoing
members therein have not been altered in the least by the recent enactments.
It is submitted that the decision of the Bombay High Court in Krishnabai's124 case is not in
conformity with the rule of survivorship as understood by the Bombay High Court in
Y.K.Nalavade's125 case. Further also the decision is not in line with the decision of the Supreme Court
in Sitabai v. Ramchandra126 wherein the Supreme Court had accepted the claim of Suresh as a
coparcener of Dulichand on his adoption. Diwan also criticised Krishnabai's127 decision. And his
opinion is not only correct but it also conforms to the decision of the Supreme Court in Vasant v.
Dattu.128

113. Commar. of Income-Tax v. Veerappa Chettiar (1970) 76 ITR 467, 470.

114. Supra n. 112, p. 329.
115. Supra n. 85.
116. Supra n. 92.
117. Supra n. 113.
118. AIR 1975 SC 498.
119. Supra n. 112, pp. 331-32.
120. AIR 1981 Bom 240.
121. AIR 1981 Bom 109.
122. Supra n. 120.
123. Supra n. 121.
124. Supra n. 120.
125. Supra n. 121.
126. Supra n. 92.
127. Supra n. 120.
128. AIR 1987 SC 398. See Paras Diwan, MODERN HINDU LAW, 8 th ed.1990, pp. 233- 234.

17
 Further where the child adopted is a coparcener in joint Hindu family his coparcenary interest
will not migrate with him in the family of his adoption because coparcenary interest is not within the
perview of vesting and divesting of property, as held by the Supreme Court in Vasant v. Dattu.129
But the Andhra Pradesh High Court in Y.Nayudamma v. Govt.of A.P.130 held that the
coparcener has got every right under Section 30 of the Hindu Succession Act to will away his
property or to dispose of or alienate in whichever way he desired, which he is entitled by birth. It may
be, that at a time when he alienated or willed away, there may not have been a definite demarcation of
the sons; but certainly he would be entitled to a particular share along with other coparceners which
could be given effect to by various modes of disposition. That presupposes that he had got an
independent right by birth which might be dormant in certain cases and patent in other cases. From
the foregoing what becomes apparent is that notwithstanding the adoption, a person in Mitakshara
family has got a vested right even in the undivided property of his natural family which on adoption
he continues to have a right over it. This, in our judgment, is the undivided interpretation which has to
be placed upon the provisions enacted in the proviso (b) to Section 12 of the Act; and to construe
otherwise, would be causing violence to the explicit expression given in the language of the said
proviso.131
It is submitted that this decision of A.P. High Court is in conflict with the decision of the
Supreme Court in Vasant v. Dattu132 and in Dharma Shamrao Agalawe v. Pandurang Miragu
Agalawe133 in which the vesting and divesting of property is held not to be applicable to the
coparcenary interest in the joint Hindu family. Hence, the Y.Nayudamma134 decision of the A. P. High
Court is not the correct law now after the Supreme Court's decision in Vasant135 and Dharma cases.136
The Supreme Court has clarified the legal position as to the operation and scope of Section 12
clause (c) in D.S. Agalawe v. P.M Agalwe.137 In this case the Supreme Court has scanned the judicial
opinions expressed in various decisions of the High Courts and the Supreme Court. The Supreme
Court clarified that the Sawan Ram's138 case only decided the relevant question that the adopted son of
a Hindu Widow was in fact the adopted son of her deceased husband. As to the observation regarding
provisions of Section 12 (c) the Supreme Court said that these observations were not necessary for
deciding the case which was before the court they have to be held obiter dicta.
The Supreme Court overruled the A.P. High Court decision in N. Hanumantha Rao v. N.
Hanumayya139 in which the A.P. High Court had taken the view that the vesting and divesting aspect
contained in Section 12 (c) have to be taken to apply to the case of survivorship also. The Supreme
Court further approved the Bombay High Court decision given in Y.K. Nalavade's140 case, because
that case was in conformity with the opinion of the Supreme Court in Vasant's141 case, in which the
Supreme Court had observed as to the operation of proviso (c) of Section 12 that the vesting and
divesting of joint family property is not covered by proviso (c) of Section 12, because introduction in
the joint family of a coparcener either by birth or adoption does not involve fresh vesting and
divesting of estate. The joint family property in a family governed by Mitakshara is always in the state
of flux. Therein the interests of the coparceners increase by death of a coparcener and decrease by
birth or adoption in the family.
The Supreme Court also relied on the dictum in Sitabai v. Ramchandra142 that the property
which was the joint family property of the Hindu undivided family did not cease to be so because of

129. Supra n. 107.

130. AIR 1981 AP 19.
131. Ibid, pp. 21-22.
132. Supra n. 107.
133. Supra n. 106.
134. Supra n. 130.
135. Supra n. 107.
136. Supra n. 106.
137. Supra n. 106.
138. Supra n. 85.
139. Supra n. 88.
140. Supra n. 121.
141. Supra n. 107.
142. Supra n. 92.

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the "temporary reduction of the coparcenary unit to a single individual". The character of the property,
viz., that it was the joint property of a Hindu undivided family, remained the same.143
The Karnataka High Court relying on Sitabai's144 case held that when on adoption the adopted
child becomes a member of the adoptive family and all ties of the child in the family of his birth
become completely severed and those are all replaced by those created by the adoption in the adoptive
family, necessarily it follows that the plaintiffs 1 and 2 would be entitled to the share which the
adoptive father, if he were to be alive would have been entitled to. The question of vesting and
divesting does not arise as the joint family has continued and the properties are also continued to be
joint family properties.145
Evaluation
The Hindu Adoptions and Maintenance Act 1956 has introduced a welcome reform in Hindu
law, but it contains, some anomalies and infirmities which have come to light after its operation. The
first, infirmity which was partially corrected by the Supreme Court while construing the effect of
adoption made by a widow in Sawan Ram v. Kalawanti146 and Sitabai v. Ram Chandra147 line of
cases. The Supreme Court rightly held that when a widow adopts a son, the son shall be related to her
deceased husband also. The main question which the Supreme Court had to decide was the
determination of the family of the adoptive child who is adopted by a widow, or by a married woman
whose husband has completely and finally renounced the world or has been declared to be of unsound
mind even though alive. The Supreme Court decided this question on well recognised social
principles and policies that a married woman belongs to the family of her husband, and naturally the
adopted child would also belong to the same family. The natural conclusion, therefore, was that the
adopted child shall become the adopted son of the deceased husband of the widow. The criticism of
this approach of the Supreme Court in the academic circles overlooks the essential principles of
interpretation. It is an elementary rule that construction is to be made of all the parts together and not
of one part only by itself.148 In reaching the conclusion that the adopted son by a widow or a married
female would be the son of the husband of the widow, the Supreme Court had examined the entire
provisions of the Act. The Supreme Court did not take out the Hindu 'widow' or 'married female' on a
pin point but considered the Hindu female, who was a widow or married as belonging to the family
she was married in. Therefore, when the adoption is made by a widow she brings in a member in the
family, who becomes the member of the family and all rights are replaced in the family of his
adoption which have been lost in the family of his birth by virtue of his adoption. Thus all the ties of
the child in the family of his or her birth shall be deemed severed and replaced by those created by
adoption in the adoptive family.
The adopted child becomes the child of the widow and that of her deceased husband from the
date of adoption and such child does not divest any person of property already vested in a person. This
interpretation does not revive the doctrine of relation back. The doctrine of relation back restricts the
rights of the adopted son and the restriction as placed by Section 12 (c) is not displaced by the
decisions of the Supreme Court. About clause (c) of Section 12 the Supreme Court observed :
It appears that, by making such a provision, the Act has narrowed down the rights of
an adopted child as compared with the rights of a child born posthumously. Under
the Shastric law, if a child was adopted by a widow he was treated as a natural-born
child and, consequently, he could divest other members of the family of rights vested
in them prior to his adoption. It was only with the limited object of avoiding any such
consequence on the adoption of a child by a Hindu widow that these provisions in
clause (c) of the proviso to Section 12, and Section 13 of the Act were incorporated.
In that respect, the rights of the adopted child were restricted. It is to be noted that this
restriction was placed on the rights of a child adopted by either a male Hindu or a
female Hindu and not merely in a case of adoption by a female Hindu. This

143. Supra n. 92, p. 346.

144. Supra n. 92.
145. Ramanna Gowda v. Shankarappa AIR 1988 Kant 248, 50-51.
146. Supra n. 85.
147. Supra n. 92.
148. Tusquand v. Board of Trade (1886) 11 App. Cas 286 per Lord Blockburn.

19
 restriction on the rights of the adopted child cannot, therefore, in our opinion, lead to
any inference that a child adopted by a widow will not be deemed to be the adopted
son of her deceased husband.149
The critics even twisted the judgment in Sawan Ram's150 case just to emphasis that the
approach of the Supreme Court in Sawan Ram's151 case is in flagrant breach of Section 12 of the Act.
Gupte states that in Sawan Ram's152 case the Supreme Court has held that the adoption of a son by a
widow after HAMA 1956 is not only to herself but also to her deceased husband and that it relates
back to the death of the husband for the purpose of determining the rights of the adopted son to
succeed to the estate of the deceased husband whether vested in her or others : the Court so held
notwithstanding the express language of Section 12 which abolishes the doctrine of relation back. 153
In fact, the Supreme Court did not use the underlined words, rather the Supreme Court gave the
rational interpretation to clause (c) of Section 12 by recognising the restriction in respect of the rights
of adopted child which are equally applicable whether the adoption is by a male or a female. These
restrictions do not lead to any conclusion that a child adopted by a widow would not be deemed to be
the adopted child of her deceased husband. It should be remembered that the law relating to the joint
Hindu family has not been amended by the statutes.
A correct appreciation of the law laid down in Sawan Ram line of cases is not grasped
properly by the critics. In Akhay Kumar v. Sarada Dai,154 the High Court observed :
In spite of decision of Supreme Court reported in Sawan Ram v. Kalawanti155 which
holds the field, jurists have expressed that son adopted by a widow though member of
family of her husband, it may not be correct to say that he is son of her husband. This
view is expressed in view of language of Section 5 of the Hindu Adoptions and
Maintenance Act, 1956. However, till the decision of Supreme Court reported in
Sawan Ram v. Kalawanti156 holds the field, it is binding on me and son adopted by
widow after death of her husband is also son of her husband. As such he is entitled to
all the rights of a son.157
It is, therefore, suggested that a proviso should be added to Section 7 of the Act that when a
widow or a married female makes an adoption, the adoption will also be filially related to her
deceased husband or to the husband of the married female, whose husband either finally renounced
the world or has ceased to be a Hindu or has been declared by a competent court of jurisdiction to be
of unsound mind. These changes, if made, would ensure a safer home for the child to be adopted. A
female Hindu who is married and whose husband becomes incapacitated, if chooses, not to remarry,
she would remain a member of the family of her husband. If she desires to make an adoption the
adopted child must be ensured full relationship in the family of his/her adoption and such a child must
be related to the husband of the female making the adoption. This would be in consonance with the
words and spirit of the Act.

***************

149. Supra n. 85, p. 1765.

150. Supra n. 85.
151. Supra n. 85.
152. Supra n. 85.
153. S.V. Gupte, HINDU LAW OF ADOPTION, MAINTENANCE, MINORITY AND GUARDIANSHIP, 1 st
ed. 1970, p. 11.
154. AIR 1995 Ori. 212.
155. Supra n. 85.
156. Supra n. 85.
157. Supra n. 85, p. 213.

20