# SA WAN RAM & OTHERS v. KALA WANTI & OTHERS

- **Citation:** [1967] 3 S.C.R. 687
- **Court:** Supreme Court of India
- **Decided:** 1967-04-19
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sa-wan-ram-others-v-kala-wanti-others-4010
- **Pages:** 8

## Headnote

A
B
c
D
SA WAN RAM & OTHERS
v.
KALA WANTI & OTHERS
April 19, 1967
687
(K, N. WANCHOO, C.1., V. BHAllGAVA AND 0. K. MITTBR, J.1,]
Hindu A.doptlon.r and Malntenanc. A.ct, 1956 (78 of 1956) S1. ·9(2)
and 12-D11d mltu adoption 6'v1n by f/111'11118 and con.r1111 by motlilr,
If v1111d-Adop1lon by widow, If allo to h111bandA. widow, whole hmband had died before the Hindu Succealon A.ct
Clllll Into force, ~od
respondent 2 after the lllforcement of the Act.
Oii the widow\ du
the a~t, the -t
menloner of her hmbllld, flied I ault
Ill the adC?Ption, The
trial c:ourt dl1ml-'
the llllt. whlob, In apptll, the Hlab court uphelcl, In appeal, to thla
CoUrt the a~t oontended that (I) the adoption was- illvalld Wider
oL (II) of s. 6 read with s. 9(2) ol the Hllldu Mc>Ptlona 111d MalnteDllllle Act 11 tho ion wu slven In idoPtlon bY his mOther even thouah
Illa father wu alive; and (ii) under the Rindu Adoptions and Maintenance
Aat, 111 Independent rlaht of adoption Is slven to Hilldu female and If a
wldOw adopti a ion, hi becomes the adoPtecl 1011 of the widow only and
wu DOt dffmed to be the 1011 of her dlCeued huiband.
HBLD : The appeal muit be d!trnl.....,,
<lfun The evidence Oii record atablilhed that the
IOll waa t;i ID
='had t?.!1v:'~1t ~~~:n~r t
a1Udll the falhii'. The foUOwlna Hlltace lllath!I that the mother o tile
E
bor had .'put her thumbomlrk hereunder In tom of her COJ11111t,' wu
puf In the deed, becauae 1. 9(2) of the AdOl)lion~ end Melntena"c• Act
-tlom that the father Is not to elordN hla rlaht ·Of slvlna his child lo
adoDtlon, Ave with the OOllHllt of the mother. ''The COllHllt of the
mother" havlna been Uled Ill the Act which wu applicable, the drafts.
men of the deid Included ill It the f11t that the boy'1 mother had actual·
ly alven hll' conaeat and obtained her thumb-lmprelllon In token thenof,
F
[~D·HJ
(Ii) The provision In 1. 12 of the Act, mak11 It clear that, on adoDtloll bY a Hilldu female who has been married, the adopted aoa will, In
~t, be. the adopted ~
of her hmband also. Under the Shutrlc Law,
if a child wu aCIOplld bY a widow he wu treated u a natural-born
child 111d; comequently, he could ht other members of the family
of rlahts v11ted ID them prior to his adoption. It waa onlY with. the
G
limited object of avoldlna any such oo~nce on the adoption of a
cblld by a Hindu widow that the provislomi In clauae (c) of the proviso
to a. ~2, and section 13 of the AC! were Incorporated
In that !'9IPICt.
the rlahts of the. :C~tecl child were reitrlcted. It Is to' be noted that this
m::cllon was pl
on the rights Of a child idopted by either 1 male
u or a female Hindu and not r; Ill a cue of acloptfon by a
~~!_~nleaddu. This reitrlcllo11 on tho rl ta of the i!IOPted cb11d ca1111ot
um&WRI,
tO Illy Inference that I C
adopted by I widow will noi
H - ~B1eemed to be the adopted son of her deceased huiband. [694B.C.
And~':i
0
w!"k1~R:'~,,~ais6; Cs~:'lnumayya and another, [1964) 1
688
SUPREME COURT REPORTS
(1967]38.C.R.
CIVIL APPELLATE JurusmcnoN: Civil Appeal No. 728 of
1964.
Appeal by special leave from the judgment and decree dated
September 25, 1961 of the Punjab High Court in Civil Regular
Second Appeal 343 of 1961.
S. K. Mehta and K. L. Mehta, for the appellant.
A. [). Mathur, for the respondents.

## Text

A
B
c
D
SA WAN RAM & OTHERS
v.
KALA WANTI & OTHERS
April 19, 1967
687
(K, N. WANCHOO, C.1., V. BHAllGAVA AND 0. K. MITTBR, J.1,]
Hindu A.doptlon.r and Malntenanc. A.ct, 1956 (78 of 1956) S1. ·9(2)
and 12-D11d mltu adoption 6'v1n by f/111'11118 and con.r1111 by motlilr,
If v1111d-Adop1lon by widow, If allo to h111bandA. widow, whole hmband had died before the Hindu Succealon A.ct
Clllll Into force, ~od
respondent 2 after the lllforcement of the Act.
Oii the widow\ du
the a~t, the -t
menloner of her hmbllld, flied I ault
Ill the adC?Ption, The
trial c:ourt dl1ml-'
the llllt. whlob, In apptll, the Hlab court uphelcl, In appeal, to thla
CoUrt the a~t oontended that (I) the adoption was- illvalld Wider
oL (II) of s. 6 read with s. 9(2) ol the Hllldu Mc>Ptlona 111d MalnteDllllle Act 11 tho ion wu slven In idoPtlon bY his mOther even thouah
Illa father wu alive; and (ii) under the Rindu Adoptions and Maintenance
Aat, 111 Independent rlaht of adoption Is slven to Hilldu female and If a
wldOw adopti a ion, hi becomes the adoPtecl 1011 of the widow only and
wu DOt dffmed to be the 1011 of her dlCeued huiband.
HBLD : The appeal muit be d!trnl.....,,
<lfun The evidence Oii record atablilhed that the
IOll waa t;i ID
='had t?.!1v:'~1t ~~~:n~r t
a1Udll the falhii'. The foUOwlna Hlltace lllath!I that the mother o tile
E
bor had .'put her thumbomlrk hereunder In tom of her COJ11111t,' wu
puf In the deed, becauae 1. 9(2) of the AdOl)lion~ end Melntena"c• Act
-tlom that the father Is not to elordN hla rlaht ·Of slvlna his child lo
adoDtlon, Ave with the OOllHllt of the mother. ''The COllHllt of the
mother" havlna been Uled Ill the Act which wu applicable, the drafts.
men of the deid Included ill It the f11t that the boy'1 mother had actual·
ly alven hll' conaeat and obtained her thumb-lmprelllon In token thenof,
F
[~D·HJ
(Ii) The provision In 1. 12 of the Act, mak11 It clear that, on adoDtloll bY a Hilldu female who has been married, the adopted aoa will, In
~t, be. the adopted ~
of her hmband also. Under the Shutrlc Law,
if a child wu aCIOplld bY a widow he wu treated u a natural-born
child 111d; comequently, he could ht other members of the family
of rlahts v11ted ID them prior to his adoption. It waa onlY with. the
G
limited object of avoldlna any such oo~nce on the adoption of a
cblld by a Hindu widow that the provislomi In clauae (c) of the proviso
to a. ~2, and section 13 of the AC! were Incorporated
In that !'9IPICt.
the rlahts of the. :C~tecl child were reitrlcted. It Is to' be noted that this
m::cllon was pl
on the rights Of a child idopted by either 1 male
u or a female Hindu and not r; Ill a cue of acloptfon by a
~~!_~nleaddu. This reitrlcllo11 on tho rl ta of the i!IOPted cb11d ca1111ot
um&WRI,
tO Illy Inference that I C
adopted by I widow will noi
H - ~B1eemed to be the adopted son of her deceased huiband. [694B.C.
And~':i
0
w!"k1~R:'~,,~ais6; Cs~:'lnumayya and another, [1964) 1
688
SUPREME COURT REPORTS
(1967]38.C.R.
CIVIL APPELLATE JurusmcnoN: Civil Appeal No. 728 of
1964.
Appeal by special leave from the judgment and decree dated
September 25, 1961 of the Punjab High Court in Civil Regular
Second Appeal 343 of 1961.
S. K. Mehta and K. L. Mehta, for the appellant.
A. [). Mathur, for the respondents.
The Judgment of the Court was delivered by
Bhargava, J.
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 alionations were without legal necessity and were not 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,
resoondent 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
res,.,ondent No. 2, Deep Chand, the son of Brahmanand and his
wife, res.,ondent 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 divest-
·ed 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 Deep 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 proper!J: under
the Hindu Succession Act, 1956, Deep Qtand was entitled to
succeed to the property of Ramji Dass in preference to the appel·
!ant, so that the appellant could not elaim possession of these proA
B
c
D
'
G
H
D
E
(1
;
ff
SAWAN RAM v. KALA WANT! (Bhargava, J.)
<iSV
perties.
That order was upheld by the High Court of Punjab,
and the appellant has now com~ up to this Court in appeal by
special leave.
In this appeal before us, only two points have been urged
by learned counsel for the appellant.
The first point taken is
that, even though the appellant did not challenge the finding of
fact that respondent No. 2 was, in fact, adopted by Smt. Bhagwani,
that adoption was invalid under clause (ii) of section 6 read with
sub-s. (2) of s. 9 of the Hindu Adoptions and Maintenance Act,
1956 (No. 78 of 1956) (hereinafter referred to as "the Act").
It is urged that, under s. 9(2) of the Act, if the father of a child
is alive, he alone has the right to give in adoption, though the right
is not to be exercised, save with the consent of the mother. In
this case, reliance was placed on the language of the deed of
adoption dated 24th August, 1959, to urge that Deep Chand was,
in fact, given in adoption to Smt. Bhagwani by his mother, respondent No. 1, even though his father, Brahmanand, was alive.
This point raised on behalf of the appellant is negatived by
the evidence on the record. There is oral evidence of the adoption which has been accepted by the lower courts, and it shows
that Deep Chand was given in adoption by both the parents to
Smt. Bhagwani. Even the deed of adoption dated. 24th August,
1959, on which reliance was placed on behalf of the appellant in
support of this argument, does not bear out the suggestion that
Deep Chand was given in adoption by his mother and not by his
father.
The deed clearly mentions that "the parents of Deep
Chand have, of their own free will, given Deep Chand to me, the
exccutant, today as my adopted son." This recitation is followed
by a sentence which states : "Mst. Kala Wanti, mother of Deep
Chand, has put her thumb-mark hereunder in token of her consent" It was from this solitary sentence that infe.rence was sought
to be drawn that Deep Chand had been given in adoption .by his
mother, Kala Wanti and not by the father.
The deed, in the
earlier sentence quoted above, clearly mentions that Deep Chand
had been given in adoption by his "parents" which necessarily
includes the father.
This later sentence, it appears, was put in
the deed, because s. 9 ( 2) of the Act mentions that the father
is not to exercise his right of giving his child in adoption, save
with the consent of the mother.
"The consent of the mother"
having been used in the Act which was applicable, the draftmen
of the deed included in it the facl that Deep Chand's mother had
actually given her consent and obtained her thumb-impression in
token thereof. This mention of the consent cannot, in these circumstances, be held to show that it was the mother who, in fact,
gave the child in adoption and not the father.
The second point and the one, on which reliance is mainly
placed by learned counsel for the appellant, is that, according
690
SUPREME COURT Rl!PORTS
(1967] 3 S.C.R.
to him, under the Act, an independent right of adoption is given
A
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. Under the Shastric Hindu Law, no
doubt, if a Hindu widow made an ado~tion after the death of. her
husband on the basis of collSllllt obtamed from him in his lifetime, the adopted son was deemed to be the soil of the deceased
husband also; but it is urged that the Act lias completely changed
this policy. In support of this rroposftian:, learned c9unsel dicw
our attention to the provisions o s. 8 of the Act; under which any
female Hindu, who is of sound mind, who i$ not a minor, and
who is not married, or if married, whose marriage has been dis·
solved or whose husband is dead or has completely and finally c
renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of μnsound
mind, has been granted the capacity to take a son or a daughter
in adoption. Then .reference was made to s. 12 of the Act, which
runs as follows :-
"12. An adopted child shall be deemed to be the
child of his or her adoptive father or mother.for all pur·
poses with effect from the date of adoption and from
such date all the :tics 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 marey 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 owner·
ship of such property, Including the obligation to main·
tain 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 adop·
tion."
I)
'
Reliance was also placed on sections 13 and 14 of the Act
G
which are reproduced below:-
"13. Subject to any agreement to the contrary, an
adoption does not depnve the adoptive father or mother
of the power to dispose of his or her property by trans·
fer inter vivos ot by will.
14. (1) Where a Hindu who has a wife living
adopts a child, she shall be deemed to be the adoptive
mother.
B
c
D
E
F
G
H
SAWAN RAM v. KALA WANTI (Bhargava, I.)
691
( 2) Where an adoption has been made with the
consent of more than one wife, the seniormost in mar·
rlage among them shall be deemed to be the adoptive
mother and the others to be step-mothers.
( 3) Where a widower or a bachelor adopts a child,
any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child.
( 4) Where a widow or an unmarried woman adopts
a child, any husband whom she marries subsequently
shall be deemed to be the step-father of the adopted
child.''
On the basis of these provisions, it was urged that the scheme
of the Act is that, when a Hindu female adopts a child, he becom~ the adopted son of the Hindu female only and does not
necessarily become the son of the deceased husband, if the Hind11
female be a widow.
Emphasis was laid on the fact that even
an unmarried female Hindu is permitted to take a son or daughter
in adoption and in such a case, naturally, no question would arise
of the adopted child becoming the adopted son of a Hindu male
also. In this connection, reliance was placed on a decision of the
High Court of Andhra Pradesh in Nara Hanumantha Rao v.
Nara Hanumayya and Another(1 ). For convenience, the facts of
that case may be briefly reproduced as given in the head-note to
indicate the question of law that fell to be decided. A and his
two sons B and C were members of a Hindu joint family.
B
died on 26th August, 1924 leaving behind his widow D. A died
in the year 1936. On 17th June, 1957, D adopted E, and E
filed the suit against C and his son F for partition and separate
possession of a half share in the properties. The trial court held :
( 1) that there is a custom among the members of the Kamma
caste, to which the parties belonged, whereby the adoption of a
boy more than 15 years old is valid; and (2) that the adoption
of E could not have the result of divesting the interest of B that
had vested in C long prior to the date of the adoption, having re·
gard to the provisions of the Act. In appeal, the High Court upheld the decision of the trial court on both the points that were
raised. The existence of the caste custom, by which boys aged
more than 15 years could be adopted, was held to be sufficiently
proved by evidence. Then the High Court proceeded to consider
the provisions of the Act to find out whether E could claim a
share in the property of B, the deceased husband of D who had
adopted him. The learned Judges of the High Court enumerated
the contents of the various relevant sections of the Act and then
proceeded to consider whether E could claim a right in the pro·
perty left by B. The Court, after reproducing the provisions of
s. 12 of the Act held :
(I} [1964] I Andhra Weekly Reporter, 156.
692
SUPREME WURT .Klll'URTS
LI~o/J :J' s.<.:.K.
"Under the terms of the above section, an adopted
child is deemed to be the child of his or her adoptive
father or mother for all purposes with effect from the
date of the adoption. Relying on the words "for all
purposes", it is argued that the adopted child has the
same rights and privileges in the family of the adopter
as the legitimate child.-From the language of the section,
it is manifest that an adopted child is deemed to be the
child of his or her adoptive father or mother. The use
of the word "or" between the words "father" and
"mother" makes this abundantly clear. The use of the
expression "with effect from the date of adoption" as
also the language of clause ( c) of the Proviso are important. The expression_ "with effect from the date of
adoption" introduces a vital change in the pre-existing
law.
Under the law as it stood before the Act came
into operation, the ground on which an adopted son was
held
entitled to
take in
defeasance of
the
rights
acquired
prior
to
his
adoption
was
that, in the eye of law, his adoption related back, by a
legal fiction, to the date of death of his adoptive father.
The rights of the adopted son, which were rested on the
theory of "relation back", can no longer be claimed by
him. This is clear from the specific provision made in
s. 12 that the rights of the adoptee are to be determined
with effect from the date of adoption. Clause ( c) of the
Proviso to s. 12 lays down the explicit rule that the
adoption of a son or daughter by a male or female
Hindu is not to result in the divesting of any estate
vested in any person prior to the adoption."
When finally expressing its opinion on the question of law, the
Court said:
"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 pQ§ition clear,
by providing that an adoption does not deprive the
adoptive father or mother of the powers 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 the ordinary rule of Mitakshara Jaw
that, as a result of the adoption made by the widow, the
adoptee acquires rights to the share of his deceased
C'
D
E
F
G
H
A
B
c
D
E
F
G
H
SAWAN RAM v. KALA WANT! (Bhargava, !.)
adoptive father which has passed by survivorship to his
father's brothers."
We are unable to accept this interpretation of the provisions
of the Act by the Andhra Pradesh High Court as it appears to us
that the High Court ignored two important provisions of the Act
and did not consider their effect when arriving at its decision. The
first provision, which is of great significance, is contained in
s. 5 ( 1) of the Act which lays down : "No adoption shall be made
after ~
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 o.f two kinds. One is adoption by a Hindu, and
the other is adoption to a Hindu. H 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 casei.
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 Andbra
Pradesh High Court, is one contained in s. 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-recognized that, after a female is married, she belon2s to
the family of her husband. The child adopted by her must also,
therefore, belong to the same family. On adoption by a widow.
therefore, the adomed son is to be deemed to be a member of
the family of the deceased husband of the widow. Further ~till,
he loses all his rights in the family of his birth and those rights
694
SUPREME COURT REPORTS
[1967] 3 S,C,R,
are replaced by the rights created by. the adoption in the adoptive
family.
The right, which the child had, to succeed to 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 decell$Cd husband of the widow, or the married
female, taking him in adoption. This provision in s. 12 of the
Act, thus, ttself 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.
It may, however, be mentioned that the conclusion which we
have arrived at does not indicate that the ultimate decision given
by the Andhra Pradesh High Court was in any way incorrect. Ni
we have mentioned earlier, the question in that ca.Se was whether
E, after the adoption by D, the widow of B, could divest C of the
rights which had already vested in C before the adoption. It is
significant that by the year 1936 C was the sole male member of
the Hindu joint family which owned the disputed property.
B
died in the year 1924 and A died in 1936. By that time, the
Hindu Women's Rights to Property Act had not been enacted and,
consequently, C, as the sole male survivor of the family became
full owner of that property. In these circumstances, it was clear
that after the adoption of E by D, E could not divest C of the
rights already vested in him in view of the special provMon contained in clause (c) of the proviso to s. 12 of the Act. It appears
that, by making such a provision, tlie 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, con!lequently, 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 s. 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 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 nClt be deemed to be the adopted son of her deceased husband. The second
ground taken on behalf of the appellant also, therefore, fails.
The appeal is, consequently, dismissed with costs.
Y.P.
Appital dismissed.
A
B
c
D
E
F
G
H