Adopted Child Doesn't Retain Right To Claim Share In Birth Family’s Property, Telangana High Court Full Bench Rules In 46-Year-Old Dispute

A Full Bench of the Telangana High has ruled that a child upon adoption ceases to be a coparcener of his or her birth family and consequently gives up any right or interest in the family ancestral property.The bench of Justice P. Naveen Rao , Justice B. Vijaysen Reddy and Justice Nagesh Bheemapaka in the judgment dated June 27 said only if a partition has taken place before the adoption and property is allotted to the adopted person, he or share can carry that property to the adoptive family."Only if a partition has taken place before the adoption and property is allotted to his share or self acquired, obtained by will, inherited from his natural father or other ancestor or collateral which is not coparcenary property held along with other coparceners and property held by him as sole surviving coparcener, he carries that property with him to the adoptive family with corresponding obligations," said the court.The bench passed the ruling while answering a reference from a division bench that whether "the undivided interest in the property of a coparcener will not, on his adoption, be divested, but will continue to vest in him even after his adoption."Case HistoryThe dispute before the court dated back to 1977 when a suit was filed before the civil court for partition and separate possession. The plaintiff was adopted by his maternal uncle and upon finding out about his adoption, he filed the suit seeking share in the property of his birth family. The trial court, while following the law laid down by Andhra Pradesh High Court in Yaralagada Nayudamma vs. The Government of Andhra Pradesh, rep. By the Authorised officer, Land Reforms, Ongole, held that the plaintiff had share in the ancestral property of his birth family even after adoption. An appeal was filed against the order, which was dismissed and subsequently, when a revision was preferred against the appeal, that too was dismissed.Being aggrieved by the orders, the Defendant in the original suit, preferred the appeal, arguing that the judgement passed in Nayudamma by the Division Bench of Andhra Pradesh High Court is bad in the eyes of law, and also contended that upon adoption, a child’s rights in the ancestral property of his/her birth parents is divested. In Nayudamma, Section 12 (b) of the Hindu Adoption and Maintenance Act, 1956 was interpreted to hold that since succession starts “at birth” in a Mitakshara family and a child, even after being adopted, will have rights and share in the ancestral property of his birth parents.The division bench, before which the appeal came to be listed did not agree with the reasoning in Nayudamma and requested the Chief Justice to refer the matter to a Full Bench for an authoritative pronouncement.ReferenceThe questions framed where:“ Whether the rights of a coparcener in the joint possession and enjoyment of the property is clear vesting of title in the coparcener even before partition and can he be said to be short of rights of a full owner or whether his rights would get crystallized into definite share only on actual partition; andWhether by virtue of the proviso (b) to section 12 of the Adoption Act, the undivided interest in the property of a coparcener will not, on his adoption, be divested, but will continue to vest in him even after his adoption? “ArgumentsSenior counsel Vedula Srinivas, representing the appellant, contended that the Nayudamma judgement did not consider the issue in a right perspective and ignored precedents of the Supreme Court. He further contended that no person can be a coparcener of two families, Section 12(b) applies only when the property is already vested with the child before adoption and that understanding the scope of the provision in any other manner would amount to violating the effect of the main provision.However, the respondent side contended that the property did vest with a child from birth, even before adoption.RulingAfter considering various judgements passed by the Supreme Court, and referring to texts of exponents of Hindu Law, the full bench said that Section 12 of the Act envisages severance from birth parents and creating new rights with adoptive parents. The meaning of the word “vested” was also looked into, and the bench explained that the word means anything which means already fixed, settled and which gives absolute right of ownership and then went on to say although in Mitakshara Law coparceners acquire right at birth, the right is not definite and the share of a coparcener becomes absolute only when partition opens and held:“In Hindu Mitakshara law a coparcener acquires right in a joint farely property as soon as he was born. But, such right is unspecified. A coparcener acquires interest in the ancestral property by birth, but has no definite share in the coparcenary property. A coparcener does not have exclusive rights on any specific property of the family. All the coparceners enjoy the ancestral property jointly. The right to interest changes from time to...

Adopted Child Doesn't Retain Right To Claim Share In Birth Family’s Property, Telangana High Court Full Bench Rules In 46-Year-Old Dispute

Fareedunnisa Huma

Tags