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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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Essay on the Doctrine of Relation Under the Hindu Adoptions and Maintenance Act
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Essay On The Doctrine Of Relation Under The Hindu Adoptions And Maintenance Act

Words: 616    Pages: 2    Paragraphs: 10    Sentences: 32    Read Time: 02:14
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              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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