Vijayalaxmamma v. B.T. Shankar, (2000) 4 SCC 538

VIJAYALAXMAMMA V. B.T. SHANKAR

ISSUE:

Is permission of the co-widow of a late Hindu male necessarily required for adoption?
Does a Sapinda need to give permission to the widow to adopt when the wish of the husband is not known?
What is the scope for a legal adoption when there’s more than one widow?

RULE:

Hindu Adoption and Maintenance Act, 1956-

Section 7- Capacity of a male Hindu to take in adoption
Explanation- “If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.”
Section 8- Capacity of a female Hindu to take in adoption.
Section 12- Effects of adoption: “…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”
Section 14(2)- “Where an adoption has been made with the consent of more than one wife, the senior-most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers.”

FACTS:

A.T. Nanjappa Rao had two wives- Smt. Sharadamma (first wife), and Smt. Neelamma (second wife). They became the senior widow and junior widow respectively on his death in 1968. He left also behind him a suit for properties dividing his estate in two equal parts for his wives.
In 1970, A.T Nanjappa Rao’s brother’s son- B.T Shankar (plaintiff) was adopted as per the customs belonging to Sharadamma’s community by means of an Adoption Deed. The adoption was said to be taken by both the widows as late Nanjappa Rao had no issues he had stated before.
The adoption was claimed to be acted upon when B.T Shankar’s name was put down as the son of late Nanjappa Rao who had been managing properties, on revenue records.
Disputes arose between B.T Shankar and the two widows. Sharadamma soon died in the year 1983.
Neelamma now claims that she adopted the daughter of another brother of Nanjappa Rao’s, called Vijayalakshmamma in the year 1970 itself which she, the brother and his wife affirmed through a registered deed in 1984. The act was also protected by a Will dated in 1984, jointly executed by late Sharadamma and Neelamma.
B.T Shankar then claimed for 3/4th of the property of Nanjappa Rao claiming that he is the only adopted child.
Neelamma (2nd defendant) claims that B.T Shankar’s (plaintiff) adoption deed was unregistered and without her consent and that he has no right to the property on the basis of such a document. She further says that on the matter of adoption, Vijayalakshmamma’s (1st defendant) adoption has evidence to prove it.
She pleads that if the plaintiff’s adoption is considered, she still hadn’t consented to the adoption and he should not have a claim to the property that was left behind by the husband, but only to Sharadamma’s as the consent of both the widows is required.
The plaintiff produced multiple witnesses to prove his adoption and the Trial Court decrees in his favour.
On appeal, The High Court agreed with the Trial Court on matters of questioning the authenticity of the signatures and registration of Vijayalakshmamma’s adoption, and agreed with the plaintiff’s adoption. They however gave a partial relief by saying that since Neelamma hadn’t consented to the adoption, the adoption is only through Sharadamma and only the property share inherited by her can be inherited by the plaintiff.
The matter is appealed further in the Supreme Court only for the legality of the adoption on basis of consent, and no other aspects.

HELD:

The Court was of the opinion that permission of a co-widow is not necessarily required, as Section 7 of HAMA and its explanation needs to be read into with Section 8 which gives the Hindu female her own right to adopt. The law does not compel the senior widow to take permission, nor will failure of it be sufficient grounds for holding the adoption invalid. It’s just suggestive for peace and good relations that she may consult the younger one.
In the absence of clear prohibition by the husband to adopt in a certain way, the widow or the senior widow has the authority to make an adoption. When a widow adopts, it is also under the capacity of her husband’s representation. The aspect of requiring a sapinda to assent to it is to prevent misuse. The assent and authority can be accepted or rejected, as that power of the widow is absolute and uncontrolled. However, absence of consent of a female sapinda doesn’t lead to invalidation.
The reason for the same is given that if we take the husband or sapinda’s assent to be necessary thinking that the woman/widow is not equipped to make a judgement regarding the adoption to be carried out, she won’t be fit to advise another widow for the same. Especially for this reason, the consent of junior widow isn’t compulsory as the presumed incapacity of the senior widow, also lies with the junior widow, and taking just each other’s aid won’t diffuse the issue. Relating it to the present case, the legality of the plaintiff’s adoption is thus solved and he does have a valid claim, despite the absence of Neelamma’s consent.
Section 12 of HAMA lays down the rights which an adopted child gets, and for proprietary aspects, the child will now be in line to the adoptive parents’ property. Considering that the ties to the birth family are replaced, the rights which the child has from the birth parents are also replaced- which includes succession. The female/widow also belongs to the family of the husband/deceased husband, and thus her family will also be the adopted child’s family- giving rights to the deceased husband’s property as well. So, in this case, the plaintiff will be the adopted son of late Nanjappa Rao (husband) too with respect to Sharadamma.
It was held that Sharadamma alone consented to it, and it would be unfair to link Neelamma and her property to this since she took no part in this decision, and thus only the property which Sharadamma inherited would be the plaintiff’s. The appeal is dismissed with awarding the plaintiff one half of the property.