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TMI Blog1985 (3) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the above order, the Assistant Controller has made a fresh assessment order, dated 11-12-1981. In this order, he held that the adopted child would be taken into the family fold from the date of adoption and not earlier. He also held that the decision of the Supreme Court in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum AIR 1978 SC 1239, has no application since the deceased in the instant case is governed by Mitakshara Hindu law and that too by the Madras school of law where lady members are not entitled to any share at the time of partition. Thus, the entire property in the instant case passed on the death of the deceased and is liable to duty. On appeal, the Appellate Controller held that the son who was adopted was not only for the widow but for her deceased husband and, hence, the adopted son was automatically entitled to a share in the joint family property and the deceased's share would be reduced to that extent. He followed the decision of the Supreme Court in Smt. Sitabai v. Ramchandra AIR 1970 SC 343. In the view he has taken, he did not consider the other contention that the widow of the deceased had half share in the estate of the deceased during his lif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to the obligations, if any, attaching to 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." Under the above provision, it is clear that the adoption takes place with effect from the date of adoption. Under clause (c) of the proviso the adopted child shall not divest any person of any property vested in him or her before the adoption. In view of the above provision and section 14(1) of the Hindu Succession Act the doctrine of relation of the adoption back to the date of the death of the deceased no longer holds good. Under section 14(1), any property possessed by a female Hindu, whether acquired before or after the commencement of the said Act, shall be held by her as full owner thereof and not as a limited owner. In the instant case the widow was in possession of the property after the death of her husband on 28-4-1972. She has been the absolute owner since then. Since the property has vested in her with absolute powers, the adopted child as per clause (c) of the proviso to section 12 shall not div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Supreme Court in Sitabai's case, it was observed that the Supreme Court had no occasion therein to consider whether the adopted son divests the adoptive mother of the properties of which she is the absolute owner and/or whether the adopted son gets a share in the properties in the hands of the adoptive mother by virtue of the adoption. 8. In Kanduru Venkata Somaiah v. Kanduru Ramasubbamma AIR 1984 AP 313, the Andhra Pradesh High Court held that it is very difficult to hold that the title once vested in a person on the death of a testator will be divested on adoption. The disposition by a will is not affected, by adoption, for, the will speaks as at the death of the testator and the property is carried before the adoption takes place and the adopted son shall take subject to the provisions of the will. 9. In N.R. Raghavachariar's Hindu Law, 1980 edn. Vol., 2, it was observed as under : '5 Position when the adopter is a woman : Under the Hindu Succession Act a woman who inherits her husband's estate or who has acquired property in any other way except under decrees or documents which confer on her only a life or restricted estate, becomes an absolute owner of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson of any estate which vested in him or her before the adoption. Under section 12 the adoption takes effect from the date of adoption. Thus, prior to the adoption, the adopted child has no right in the property. The doctrine of relation back of the adoption to the date of death of the adoptive father no longer holds good in view of the above authorities and the provisions of the Hindu Succession Act as well as the provisions of the Hindu Adoptions and Maintenance Act. Thus, on the date of the death of the adoptive father, the adopted son in the instant case had no right in the family property. The Appellate Controller was wrong in holding that the adopted son gets half share in the family property. 11. The decision of the Supreme Court in Sitabai's case is clearly distinguishable. In that case the facts are, Dulichand and Bhagirath were brothers. Sitabai was the widow of Bhagirath who predeceased Dulichand. Before the death of Dulichand, Sitabai adopted Suresh Chandra. Sitabai was entitled to maintenance out of the properties in the hands of Dulichand which remained to be joint family properties. Since the adoption took place before the death of Dulichand, the adopted son beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case as in that case Khandappa died in 1960 leaving his wife and two sons and a suit was filed after his death in 1962 for partition. It was held that in determining the share of the wife, the proviso to section 6 and Explanation 1 thereto of the Hindu Succession Act would apply and a partition will be deemed to have taken place during the lifetime of Khandappa. That decision has no application to the instant case as the deceased here was the sole surviving coparcener and there was no claim for any partition in which a share could be allotted to the wife. 15. The decision of the Madhya Pradesh High Court in the case of Smt. Ramkunwar Bai v. CED [1983] 142 ITR 852 was rendered on the concession of the parties that wife of the deceased had half share. This decision was noticed by the Full Bench of the same High Court in CED v. Smt. Rani Bahu [1983] 142 ITR 843 and it was held that the decision in C. Krishna Prasad v. CIT [1974] 97 ITR 493 (SC) does not support the conclusion that in a family consisting of the deceased and his wife, where the deceased was the only coparcener and owner of the entire coparcenary interest, the property passing on his death is only half the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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