The will to make an adoption, and

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.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!

order now

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)