EFFECTS OF ADOPTION
The adopted child is deemed to have merged with the family of the adoptive
parents after severing all his or her relations with the natural family and he
acquires all the rights and privileges with respect to marriage inheritance,
partition, in the adoptive family. The assumption that all the ties of child with
the family of his or her birth shall be severed operates only from the day the
adoption takes place and from the day the ties are replaced by those created by
the adoption in the adoptive family1.
The introduction of a member into a family, by birth or adoption, may have the
effect of decreasing the share of the rest of the members of the Joint Hindu
Family. The adopted son will acquire an interest in the joint family property
immediately upon adoption. If the adoption is made by a widow in a Joint
Hindu Family, he also acquires an interest in the joint family property of her
in-laws. Also the moment she adopts a male child, her mother-in-law cannot
adopt a male child subsequently.
Section 12 of the Hindu Adoption and Maintenance Act lays down the
consequences of the adoption as under:
"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 who 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
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.
DOCTRINE OF RELATION BACK
The controversy regarding the principles governing adoption of a son by a
Hindu widow to her deceased husband can be traced back to Shastric law and
the controversy has been alive even after the emergence of the Hindu
Maintenance and Adoption Act, 1956.
1. The concept of son ship in Hindu law can be traced from the time of
Rigveda. Vedic literature is the mirror of the Aryan culture in India.
2. 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.
In the case of Veenabai v. Basudeo, the husband died after the passing of the
Hindu Succession Act, 1956 leaving behind his widow. The widow after some
time adopted a son and thereafter disposed of a part of the property inherited
by her. The adopted son challenged the validity of the sale. The court held that
the adoption will come into effect from the date of his actual adoption and he
would come into existence from that date but not prior to it, as the rule of
'Relation back' had provided under the old law2.
The adopted child could not divest his adoptive mother of any property which
had vested in her prior to the act of his adoption as laid down in the proviso (c)
to section 12. Hence the sale was held as valid. A child adopted by a widow
will be regarded as a natural born child not only of the widow but also of her
deceased husband.
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ESSAY ON THE DOCTRINE OF RELATION BACK UNDER THE
HINDU ADOPTIONS AND MAINTENANCE ACT
The idea underlying adoption is that the adopted child should be considered as
a child born in the adopted family, and not in the family in which the child was
actually born. The result of this theory is that, for all purposes -social, religious
or legal- the adopted child is to enjoy all the rights which it would enjoy if
actually born in the adoptive family.
The ground on which an adopted son is held entitled under Hindu Law to take
in defeasance of the rights acquired prior to his adoption is that, in the eyes of
the law, his adoption relates back by a legal fiction to the date of the death of
his adoptive father, he being put in the position of posthumous son.
The principle of relation back, however, applies only when the claim made by
the adopted son relates to the estate of his adoptive father. The doctrine of
relation back cannot be applied when the claim made by the adopted son
relates, not to the estate of his adoptive father, but to that of collateral.
The fiction of adoption operating as a civil death in the natural family and as a
new birth in the adoptive family cannot be literally applied in all cases, so as to
treat the adoptee as having been born in the adoptive family at the time he was
really born in his natural family.
Thus, if the ceremony of Upanayanam has been performed in the natural
family, it is not annulled on account of the adoption. So also, the natural tie, so
far as the prohibition of marriage is concerned, is not annulled, and the natural
relationship is recognised for the purpose of prohibiting a marriage within the
sapinda relationship in the natural family.
But an adopted son’s right to set aside an invalid alienation by the adopting
widow relates back to the death of her husband, so that all alienations effected
by the adopting widow after her husband’s death can be set aside by the
adopted son, provided they were unauthorised. But this does not mean, as
already stated, that his rights in all other respects also relate back to the death
of the adoptive father. Thus, for instance, if a man empowers his wife under a
will to make an adoption, and under the same instrument, makes certain
dispositions of property, the son subsequently adopted by the widow cannot
question such dispositions.
Thus, the doctrine of relation back has two exceptions:
(i) The doctrine does not apply to the case of succession to collateral’s
property.
(ii) The doctrine also does not divest a person who has taken the property, not
by intestate succession, but by transfer inter vivos or by will of the father or
other preferential heir, who had taken the estate in the meanwhile.
It has been held that when a sole surviving coparcener alienates family
property, a son subsequently adopted by the widow of a predeceased
coparcener cannot challenge that alienation. (Bab Gonda v. Anna Nem Gonda,
A.I.R. 1968 Bom. 8)
As regards transfer inter vivos or by will, it has been held that while the
adoption cannot displace the title of the transferee, it does not affect the rule of
relation-back of adoption to the father’s death. (Vijia Ram Raj v. Ananda,
A.I.R. 1952, All. 564)
In the case of coparcenary property, if on the death of one of two coparceners,
the other sole coparcener alienates the property, and subsequently the widow
makes an adoption, the adopted son is entitled to question that alienation as not
binding on him for want of necessity or benefit of the family. (Nandappa
Paramanna v. Siddagouda, A.I.R. 1964 Mys. 217)
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What is the Rule of Doctrine of Relation Back under Hindu Adoption
Laws?
According to this doctrine a son adopted by the widow under the authority of
her husband was deemed to have come into existence in the adoptive family on
the day the husband died, the adopted son was put in the position of
posthumous son and all his relations in the adoptive family related back to the
date of the death of his adoptive father by legal fiction.
This theory was based on a doctrine that there should be no hiatus in the
continuity of the line of adoptive father. The doctrine has got the relevance
with respect to succession of the property of the adoptive father.
The rule had two exceptions:—
(1) That any lawful alienation effected by a female heir since the death at the
adoptive father and before the date of adoption was binding on the adopted
son.
(2) That if the property by inheritance went to a collateral, the adoption could
not divest the property which was vested in the heir of the collateral.
In Sripad Gonjam v. Datta Rant Kashi Nath, Supreme Court has explained the
meaning of the doctrine of relation back in the following words, “when a
widow adopts a son to her husband, doctrine makes sonship retrospective from
the moment of the death of the late husband.”
The adopted son is deemed to have born on the date of the death of the
adoptive father. The proposition that emerge are that (1) a widow’s adoption
cannot be stultified by an anterior partition of the joint family and the adopted
son can claim a share as if he were begotten and was alive when the adoptive
father breathed last. In an old case, Sir Lionel, C.J., summerised the law as
follows:—
(1) It is a rule of Hindu law that an adoption dates back to the date of the death
of the father.
(2) There is no reason why an adopted son should be placed in position inferior
to that of the posthumous son, the heir of a disqualified person and the absent
coparcener.
(3) The right of the adopted son to demand partition, has been recognised.
(4) As adoption divests an estate of inheritence, it would be unjust to the
adopted son the right of claiming repartition when the rule of survivorship
applies. It is settled law that an adoption made by a widow to her deceased
husband after the death of the collateral does not entitle the adopted son to
come in as an heir of the collateral. In 1954, the Supreme Court took the
opposite view and held that property once vested in the collateral cannot be
divested by the subsequent adoption.
Further in Nivrutti Kushaba Binnar and others v. Sakhabai, Bombay High
Court has explained the meaning of the doctrine of relation back. According to
this doctrine when son was adopted by a female after husband’s death, as per
customs and tenets of the Hindu Law, than it must be held that he was born in
the adopted family at the time of death of male member.
Limitation:

The principles of Relationship Back applies only when the claim made by the
adopted son relates to the estate at his adoptive father and it is the interest of
the adoptive father with the adopted son is entitled to take as on the date of his
death. These principles does not apply when the claim made by the adopted
son relates to the estate at the collateral.
With respect to the estate of a collateral the governing principles is that
inheritance can never be in abeyance, and that one’s it devolves on a person
who is a nearest heir under the law; it is their after not liable to be divested.
The principle of Relation Back is subject to limitation by which if the property
by inheritance goes to a collateral and a son is adopted after the death of the
collateral, the adoption does not divest the property which has vested in the
heir of the collateral.