Bilasini Vs. Aftabuddin Khan & Ors  INSC 692 (16 November 1995)
Sujata V. (J) Manohar Sujata V. (J) Punchhi, M.M. Sujata V. Manohar, J.
1996 AIR 591 1996 SCC (7) 13 JT 1995 (9) 364 1995 SCALE (6)459
APPEAL NO. 2462 OF 1977 Aftabuddin Khan & Ors. V. Amaresh Sarkar and Anr.
the parties before us have already settled their property dispute, the only
question which is left for us to decide is whether the respondent Amaresh Sarkar
in Civil Appeal No. 2462/1977 was the duly adopted son of Chandan Bilasini Dasi,
the original first-plaintiff.
Bilasini Dasi was married to one Kalikrishna Sarkar who died on 11.12.1905
leaving a will under which, inter alia, he had authorised his widow, the
original plaintiff No. 1 to adopt a son and in the event of the adopted son's
death to adopt a second son. The adoption had to be made with the consent of
the executors. Accordingly the first-plaintiff had adopted one Sudhanshu Mohan Sarkar
as per the directions contained in the Will of Kalikrishna. Sudhanshu Mohan Sarkar
died in an unmarried state on 7.3.65.
she adopted the said respondent Amaresh Sarkar on 24.8.65. By this time all the
executors were dead. She also executed a registered deed acknowledging the
adoption of Amaresh Sarkar which is dated 30.9.65. This deed, however, was not
counter-signed by the natural parents of the adopted child. The natural father
executed a deed acknowledging adoption which is dated 15.4.67. This deed is
also registered. Apart from these documents, evidence was led in order to prove
the ceremony of giving and taking in adoption. It is necessary to bear in mind
that this second adoption took place after coming into force of the Hindu
Adoptions and maintenance Act, 1956 under which the first- plaintiff Chandan Bilasini
Das being a widow was entitled to adopt a son even otherwise than under the
authority given to her under the Will of her deceased husband.
2 and 6 have given oral evidence relating to the adoption ceremony. PW1, who is
the natural father of the adopted son has given evidence to the effect that the
adoption took place on 24.8.65 and the ceremony of giving and taking in
adoption was performed. A priest was also present and Kalasa Pooja Homa, were
performed. PW2 is the priest who performed the adoption ceremony and PW6 is an
attesting witness to the deed of adoption which was executed by the adoptive
mother on 30.9.65. He was also present at the time of the adoption ceremony.
first appellate court on the basis of the oral evidence as well as the two
supporting documents held that there was a valid adoption of the respondent Amaresh
Sarkar by the original plaintiff No.1. The Division Bench of the High Court in
appeal, however, held that there was no valid adoption. It appears to have
drawn an adverse inference on the basis of the fact that the adoptive mother
who was alive at the time when the evidence was recorded by the trial court,
had not examined herself. It is accepted by both sides that at the time when
the evidence was recorded the adootive mother was a very old lady 86 years of
age and she was too old to be produced in court for giving evidence. The
Division Bench failed to take into account the fact that there were three other
witnesses who were present at the time of the adoption ceremony who were
examined -- one of them being the priest and the other one being a person who
was also present at the time when the deed of admission of adoption was
executed by the first plaintiff adoptive mother and was an attesting witness to
the deed. The mere fact that some other persons who were also present at the
adoption ceremony were not examined, cannot be considered as making the
adoption doubtful. There is clear testimony relating to the ceremony of taking
and giving the respondent Amaresh Sarkar in adoption as between the natural
parents and the adoptive mother. The registered document regarding this
adoption which was executed within a month of the adoption by the adoptive
mother should also be given its due weight as evidence of adoption. There is
also a second document executed by the natural father after a lapse of two
the natural father after would be interested in executed such a document which
would give an advantage to his natural son the same probative value may not be
attached to the second document. But the earlier document which is executed by
adoptive mother must be given its due weight. It has been properly proved and
is a registered document.
to the entire evidence which is on record which goes to establish that adoption
took place by the ceremony of giving and taking, we hold that there was a valid
adoption of the respondent Amaresh Sarkar by the original first-plaintiff Chandan
Bilasini Dasi. After the coming into force of the Hindu Adoptions and
Maintenance Act of 1956, this adoption was made in accordance with the
provisions of Hindu Adoptions and Maintenance Act.
adoption of the respondent Amaresh Sarkar by the widow of the deceased Kalikrishna
Sarkar, the adopted son Amaresh Sarkar sevared his ties with his natural family
and became a part of the adoptive family. As such, Chandan Bilasini Dasi became
his mother and Kalikrishan became his deceased father. Section 12 of the Hindu
Adoptions and Maintenance Act clearly provides that an adopted child shall be
deemed to be the child of his adoptive father or mother for all purposes with
effect from the date of the adoption and from such date all 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. As a consequence, when a
widow adopts a child, the child not merely acquires an adoptive mother but also
acquires other relationships in the adoptive family, unless there is anything
to the contrary in the Hindu Adoptions and Maintenance Act.
position is reinforced by Section 14(4) which sets out that where a widow or an
unmarried woman adopts a child, any husband whom she marries subsequently shall
be deemed to be the step-father of the adopted child. In other words, the
family relationship gets crystalised as at the date of adoption. The child will
be deemed to be the child of the parent who adopts the child and the existing
or deceased spouse of that parent (as the case may be), if any, will be
considered the child's father or mother. A spouse subsequently acquired by the
adoptive parent becomes the step-parent of the adopted child. The adopted
child, however, cannot divest any person of any property already vested in that
person (Section 12[c]).
premises, we set aside the impugned judgment in so far as it holds that Amaresh
Sarkar was not the validly adopted son of Chandan Silasini Dasi and Kalikrishna
appellants in Civil Appeal No. 2462/1977 have, through their counsel, agreed
that the status of the respondent Amaresh Sarkar as adoptive son of late Shri Kalikrishna
Sarkar and Chandan Dilasini Dasi is not disputed.
Civil Appeal No. 1245/1977 the parties through their counsel have agreed that
the appellant will not question the validity or the sale-deed which is the
subject-matter of this appeal and it is declared that the sale-deed is valid
and binding. Respondents will pay rupees five lakhs to the appellant in full
and final settlement of all his claims against the respondents. The respondents
have requested for some time for making payment of this amount. We direct that
50% of the amount will be paid on or before 30th of November, 1995 and the
balance amount will be paid on or before 31st of March, 1996.
appeals are disposed of accordingly. In the circumstances, there will be no
order as to costs.