Amar Nath alias Amar Chand vs Milkhi Ram and others

R.N. Mittal, J.—This is a second appeal by Amar Nath defendant No. 1 against the judgment and decree of the Senior Subordinate Judge, Bhatinda, dated 29th December 1972.

Briefly, the facts are that Rura was the owner of the property in dispute and he died on 18th September, 1966. Milkhi Ram plaintiff is the son of Gopi Ram brother of Rura. Amar Nath defendant No. 1 and the other defendants are the sons of Mansa Ram another brother of Rura It is alleged by the plaintiff that defendant No. 1 got mutation of the property of the deceased attested in his favour representing that he was the adopted son of the deceased. But, in fact, he was never adopted The plaintiff further averred that he represented himself to be the son of his natural father Mansa Ram even after the alleged adoption and inherited the properly of his father along with his brothers vide mutation No. 4852 dated 13th March, 1952. The case of the plaintiff further is that he was never treated as an adopted son by the deceased. It is also alleged that the parties were governed by customary law and the property was ancestral qua the plaintiff and, therefore, he has got a preferential right over the same.

The suit was contested by defendant No. 1 who inter alia pleaded that ha was validly adopted by the deceased and the latter also executed a deed of adoption dated 18th July, 1952, and got the same registered. He further pleaded that the parties were high caste Hindus and were governed by the Hindu Law and not by custom Several other pleas were also taken but they are not relevant for the purpose of decision of the appeal.

The learned trial Court held that the parties were governed by the Hindu Law and defendant No. 1 was duly adopted by the deceased. It was next held that in view of the subsequent conduct of defendant No. 1 in representing himself as the son of his natural father, the adoption cannot be said to be valid. Notwithstanding the above findings, it dismissed the suit On appeal by the plaintiff, the learned Senior Subordinate Judge affirmed the findings of the trial Court and in view of the said findings, he decreed the suit of the plaintiff to the extent of one seventh share Defendant No 1 cane up in second appeal to this Court He died and his legal representatives were brought on the record as appellants.

The only contention of the learned counsel for the appellants is that both the Courts have held that the parties were governed by the Hindu Law and adoption of Amar Nath was duly made According to him, in that situation, the plaintiff was not entitled to the decree for possession. On the other hand, the learned counsel for respondent No. 1 has submitted that the Courts below have held that Amar Nath had beed representing himself to be the son of his natural father after the adoption and, therefore, it would be presumed that no valid adoption took place. He has also submitted that as Amar Nath inherited the property of his father along with his brothers, it will be considered that he renounced his right of inheritance in the adoptive family.

I have considered the arguments of the learned counsel for the parties However I agree with the contention of the learned counsel for the appellants. Both the Courts have concurrently held that Amar Nath was duly adopted by the deceased. The counsel for the respondent has not challenged the aforesaid finding of fact arrived at by the Courts below. The Courts below have also held that the parties are governed by the Hindu Law. That finding is also unassailable Article 403 of Hindu Law by Mulla, 13th Edition, says that a valid adoption once made cannot be cancelled by the adoptive father or other parties thereto, nor can the adopted son renounce his status as such and return to his family of birth. The same view was taken by a Division Bench of this Court in Deoki Nandan Ajudhia Parshad and Others Vs. Rikhi Ram and Others, In that case also the adoption of a person was challenged on the ground of subsequent conduct. The learned Bench observed thus : --

Had the evidence with respect to the factum of adoption and the performance of requisite ceremonies not been as trustworthy as we actually find on the present record, the above documents might well have induced us to incline and to presume against the adoption having ever in fact taken place But in view of the registered document and the oral testimony of almost unimpeachable character, coupled with the school-leaving certificates, the authenticity of which has not been successfully challenged, it is not possible for us to hold that Rikhi Ram bad not in fact been adopted by Joti Parshad

Once this finding is arrived at, the subsequent conduct becomes wholly irrelevant, because it is well settled, and indeed has been conceded, that once a valid adoption takes place, it immediately becomes irrevocable and neither the adopter nor the adoptee can either cancel the adoption or renounce the status of the adopted son so as to restore his pre adoption position in his natural family, i.e. the family of his birth. Adoption once completed has, therefore, the effect of irrevocably transferring the adopted boy from his natural family to the adoptive family and to confer upon the adoptee the same rights and privileges in the family of the adopter as the natural legitimate son, except in certain cases like those relating to marriage, adoption, etc.

It is undoubtedly open to the adopted son to renounce hit right of inheritance in the adoptive family, but his status as adopted son can never be renounced by him.

Similar view was taken by a Division Bench of the Rajasthan High Court in Mst. Gulkandi and Others Vs. Prahlad and Another, I am in respectful agreement with the above observations. Therefore, after Amar Nath had once been formally adopted by the deceased the mere fact that the adoptee had been representing himself to be the son of his natural father will not make any difference as the adopted son cannot renounce his status as such.

The contention of the learned counsel for the respondents that as Amar Nath had inherited the property from his natural father along with his brothers he would be deemed to have renounced his title to the property of the adoption has also no merit. Once adopted, he will, for all intents and purposes, be treated as having been transplanted to the family of his adoptive father. If he inherits the property of his natural father, he cannot be deprived of inheriting the property of his adoptive father on that ground as he cannot renounce his status and return to his natural family. It will also not amount to renunciation of his right of inheritance in his adoptive family. The renunciation should be in unambiguous terms

The learned counsel for the respondent made a reference to Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, The facts of that case are different as no formal adoption could be proved there The Supreme Court, therefore, came to the conclusion that the adoption was in valid. The learned counsel cannot derive any benefit from the observations therein.

After taking into consideration all the aforesaid facts, I am of the opinion that Amar Nath was entitled to inherit the property of his adoptive father and the mutation was rightly attested in his name.

For the aforsaid reasons, I accept the appeal, set aside the judgment and decree of the appellate court and dismiss the suit of the plaintiff. No order as to costs.