Sawan Ram v. Kalawanti (1967)

Section 8 of the Hindu Adoptions and Maintenance Act allows a widow to adopt in her own right — she needs no one's consent, and the classical requirement that a widow could adopt only with her deceased husband's authority is gone. But the section says only that she "has the capacity to take a son or daughter in adoption". It does not say whose child the adopted son becomes. Is he the son of the widow alone, or of the widow and her deceased husband?

The answer decides succession, and this is the case that gives it.

"A died leaving a widow B. B alienated a part of the property of A. Sawan Ram a collateral, challenged and claimed as reversioner. B adopted D (Deep Chand). Then B died. D brought a suit."

Set the sequence out, because each step matters. A dies. His widow B holds his property. She alienates part of it. A collateral, Sawan Ram, challenges the alienation and asserts that on B's death the property will come to him as reversioner — that is, on the classical footing that a widow held only a limited estate which reverted to her husband's heirs. B then adopts Deep Chand. B dies. Deep Chand claims.

"the Supreme Court held that an adopted son was a preferential heir."

Two propositions carry it.

One: the adoption is to the deceased husband as well. The Court "held that Deep Chand became a member of the adoptive family of A, and, that the adoption was not only to herself but also to her deceased husband."

Two: the property had already ceased to be a limited estate. "The property was vested in the widow B, as per Sn. 14d. of the Hindu Succession Act, and hence, the adopted son succeeded to it".

The reversioner's claim depended on the widow holding a limited estate. Section 14(1) of the Hindu Succession Act destroyed that premise: "Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner." Once B was a full owner, there was no reversion to her husband's heirs at all, and Sawan Ram's claim as reversioner was gone before the adoption was even considered.

The adoption then decided who succeeded to B's absolute estate. Section 12 provides that 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 that all ties in the family of birth "shall be deemed to be severed and replaced by those created by the adoption in the adoptive family". Holding that the widow adopted to her husband as well as to herself puts the child in A's family, not merely in B's, and makes him the natural claimant against a collateral.

The result is reached without the doctrine of relation back. Deep Chand does not take because the adoption is deemed to date from A's death; the property is B's own, and he takes from B. That is precisely the point of the modern scheme, in which proviso (c) to section 12 forbids an adopted child to "divest any person of any estate which vested in him or her before the adoption." Nothing here was divested: the property was B's absolutely, and it passed on her death.

A widow's adoption is to the deceased husband as well as to herself. The child therefore enters the husband's family, with the consequences that follow for succession, for the prohibited degrees, and for the definition of the adoptive father.

Section 14 and section 12 work together. Where a widow holds property as full owner, an adopted son takes it by succession. Where she holds nothing, the adoption confers status without property, because section 13 leaves the adoptive parent free to dispose of her property "by transfer inter vivos or by will".

The reversioner is extinct. Any answer that reasons from a widow's limited estate to a reversionary right in the husband's collaterals is applying pre-1956 law.

• Section 14 of the Hindu Succession Act, and its sub-section (2) exception for property taken under an instrument prescribing "a restricted estate in such property".
• Section 8 of the Hindu Adoptions and Maintenance Act, under which a widow adopts in her own right, and section 14(4), under which a husband a widow later marries "shall be deemed to be the step-father of the adopted child."
• Amarendra Mansingh v. Sanatan Singh, for the doctrine of relation back that this case does not need, and that section 12's proviso (c) abolished.
• Section 15 of the Hindu Adoptions and Maintenance Act: a validly made adoption "can be cancelled" by no one, and the child cannot "renounce his or her status as such and return to the family of his or her birth."

A widow adopts for two — for herself and for her dead husband — and the son she takes succeeds to what section 14 has already made her own.