**SANTOSH KUMAR JALAN ALIAS KANHAYA LAL v. CHANDRA KISHORE JALAN AND ANOTHER** **Patna High Court — Division Bench** **S.N. Jha and B.N. Singh “Neelam”, JJ.** **Second Appeal No. 158 of 1993 — Decided on 11 August 2000** **AIR 2001 Pat 125** **Hindu Law — Adoption — Effect of adoption on coparcenary interest in family of birth — Hindu Adoptions and Maintenance Act, 1956, S. 12, proviso (b) — Meaning of “property which vested in the adopted child before the adoption” — Undivided Mitakshara coparcenary interest — Whether protected by proviso (b) — Held, no.** Under S. 12 of the Hindu Adoptions and Maintenance Act, 1956, an adopted child is deemed to become the child of the adoptive parents for all purposes from the date of adoption, and the ties with the family of birth stand severed and replaced by those created in the adoptive family. Proviso (b), which preserves property vested in the adopted child before adoption, does not preserve an undivided coparcenary interest in the ancestral property of the family of birth. Although a Mitakshara coparcener acquires an interest in joint family property by birth, that interest fluctuates with births and deaths in the family, and the extent of the coparcener’s share cannot be determined while the family remains undivided. Before partition, the coparcener has a right to joint possession and enjoyment, but no exclusive ownership of any specified property. Such an interest does not constitute “property which vested” in the adopted child within the meaning of proviso (b). The proviso protects property that had already vested in the adoptee in his individual capacity, such as property acquired by inheritance, partition, bequest or transfer, subject to the obligations attaching to it. The contrary view expressed by the Andhra Pradesh High Court in *Yarlagadda Nayudamma v. Government of Andhra Pradesh*, AIR 1981 AP 19, was not accepted. The view taken by the Bombay High Court in *Devgonda Raygonda Patil v. Shamgonda Raygonda Patil*, AIR 1992 Bom 189, was preferred. (Paras 6–12) **Hindu Law — Joint family — Coparcenary property — Vesting and fluctuating interest — Distinction between joint possession and ownership of specific property.** A coparcener’s right by birth in joint family property must be distinguished from ownership of a definite item or share of property. The ownership of undivided coparcenary property vests in the body of coparceners collectively; an individual coparcener’s interest is liable to fluctuation and cannot, before partition, be treated as property exclusively vested in him for purposes of S. 12, proviso (b), of the Hindu Adoptions and Maintenance Act, 1956. (Para 9) **Hindu Law — Adoption — Construction of S. 12, provisos (b) and (c) — Effect of adoption not to be nullified.** The provisos to S. 12 must be construed consistently with the principal provision and not so as to defeat the legal consequences of adoption. The principle stated by the Supreme Court in *Vasant v. Dattu*, AIR 1987 SC 398, concerning proviso (c), supports the distinction between a change in the composition or interests of a joint family and the divesting of an estate already vested in an individual. (Paras 13–14) **Facts:** The appellant and the plaintiff were full brothers by birth. The appellant was given in adoption to another person on 17 February 1966. After the death of their natural father, the plaintiff claimed that the appellant, having been validly adopted, could no longer claim a share in the estate of the natural family. The appellant contended that his coparcenary interest in the Mitakshara joint family property had vested in him by birth and was protected by S. 12, proviso (b), of the Act. The courts below upheld the adoption and rejected his claim to a share in the property. (Paras 2–4, 16) **Held:** The appellant’s undivided coparcenary interest in the family of birth was not property protected by S. 12, proviso (b). The adoption was held valid, and the appellant could not claim a share in the suit property on the basis of his former membership of the natural family. The second appeal was dismissed with costs. (Paras 16–17) **Cases referred to:** 1. *Sawan Ram v. Mst. Kalawanti*, AIR 1967 SC 1761. 2. *Vasant v. Dattu*, AIR 1987 SC 398. 3. *Devgonda Raygonda Patil v. Shamgonda Raygonda Patil*, AIR 1992 Bom 189. 4. *Yarlagadda Nayudamma v. Government of Andhra Pradesh*, AIR 1981 AP 19.

advocatemmmohan

SANTOSH KUMAR JALAN ALIAS KANHAYA LAL v. CHANDRA KISHORE JALAN AND ANOTHER

Patna High Court — Division Bench

S.N. Jha and B.N. Singh “Neelam”, JJ.

Second Appeal No. 158 of 1993 — Decided on 11 August 2000

AIR 2001 Pat 125

Hindu Law — Adoption — Effect of adoption on coparcenary interest in family of birth — Hindu Adoptions and Maintenance Act, 1956, S. 12, proviso (b) — Meaning of “property which vested in the adopted child before the adoption” — Undivided Mitakshara coparcenary interest — Whether protected by proviso (b) — Held, no.

Under S. 12 of the Hindu Adoptions and Maintenance Act, 1956, an adopted child is deemed to become the child of the adoptive parents for all purposes from the date of adoption, and the ties with the family of birth stand severed and replaced by those created in the adoptive family. Proviso (b), which preserves property vested in the adopted child before adoption, does not preserve an undivided coparcenary interest in the ancestral property of the family of birth. Although a Mitakshara coparcener acquires an interest in joint family property by birth, that interest fluctuates with births and deaths in the family, and the extent of the coparcener’s share cannot be determined while the family remains undivided. Before partition, the coparcener has a right to joint possession and enjoyment, but no exclusive ownership of any specified property. Such an interest does not constitute “property which vested” in the adopted child within the meaning of proviso (b). The proviso protects property that had already vested in the adoptee in his individual capacity, such as property acquired by inheritance, partition, bequest or transfer, subject to the obligations attaching to it. The contrary view expressed by the Andhra Pradesh High Court in Yarlagadda Nayudamma v. Government of Andhra Pradesh, AIR 1981 AP 19, was not accepted. The view taken by the Bombay High Court in Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189, was preferred. (Paras 6–12)

Hindu Law — Joint family — Coparcenary property — Vesting and fluctuating interest — Distinction between joint possession and ownership of specific property. A coparcener’s right by birth in joint family property must be distinguished from ownership of a definite item or share of property. The ownership of undivided coparcenary property vests in the body of coparceners collectively; an individual coparcener’s interest is liable to fluctuation and cannot, before partition, be treated as property exclusively vested in him for purposes of S. 12, proviso (b), of the Hindu Adoptions and Maintenance Act, 1956. (Para 9)

Hindu Law — Adoption — Construction of S. 12, provisos (b) and (c) — Effect of adoption not to be nullified. The provisos to S. 12 must be construed consistently with the principal provision and not so as to defeat the legal consequences of adoption. The principle stated by the Supreme Court in Vasant v. Dattu, AIR 1987 SC 398, concerning proviso (c), supports the distinction between a change in the composition or interests of a joint family and the divesting of an estate already vested in an individual. (Paras 13–14)

Facts: The appellant and the plaintiff were full brothers by birth. The appellant was given in adoption to another person on 17 February 1966. After the death of their natural father, the plaintiff claimed that the appellant, having been validly adopted, could no longer claim a share in the estate of the natural family. The appellant contended that his coparcenary interest in the Mitakshara joint family property had vested in him by birth and was protected by S. 12, proviso (b), of the Act. The courts below upheld the adoption and rejected his claim to a share in the property. (Paras 2–4, 16)

Held: The appellant’s undivided coparcenary interest in the family of birth was not property protected by S. 12, proviso (b). The adoption was held valid, and the appellant could not claim a share in the suit property on the basis of his former membership of the natural family. The second appeal was dismissed with costs. (Paras 16–17)

Cases referred to:

1. Sawan Ram v. Mst. Kalawanti, AIR 1967 SC 1761.

2. Vasant v. Dattu, AIR 1987 SC 398.

3. Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189.

4. Yarlagadda Nayudamma v. Government of Andhra Pradesh, AIR 1981 AP 19.