Abdul Nazeer, J.
This appeal is directed against the judgment and decree in R.A.No.39/2002 dated 22.12.2009 on the file of the Fast Track Court-II, Dharwad, whereby the judgment and decree in O.S.No.80/1977 dated 25.9.2002 on the file of the Additional Civil Judge (Sr.Dn.) at Hubli has been set aside. The appellants were the defendants in the suit and the respondents were the plaintiffs. For the sake of convenience, the parties are referred to by their respective ranking before the Trial Court.
2. The plaintiffs filed the above suit for partition and separate possession of the suit schedule property. The genealogical tree of the family is as under:
Neelappa Havalappa Boli (Dead)
(D-1) (D-2) (P-1) (P-2) (P-3)
Yellappa DoddakoteppaSannokoteppaShankrappa
(D-3)(D-4) (Dead) (D-7)
Parvatevva
(D-5)
Mahantappa
(D-6)
It is contended that the suit properties are ancestral properties of the joint and undivided Hindu family of the plaintiffs grand father Neelappa. He died on 21.6.1955 leaving behind him his three sons, Ningappa, Basvanneppa and Mahadevappa. Mahadevappa was the genitive father of the plaintiffs. Mahadevappa was given in adoption to another family after the plaintiffs were born to him. The plaintiffs remained in their genitive family and became heirs and surviving co-parceners after the death of their grand father Neelappa. After the death of Neelappa, plaintiff Nos.1 to 3, Ningappa and Basavanneppa continued to be the members of Hindu coparcenery. Ningappa died on 30.3.1969. It is contended that though the plaintiffs are in joint and undivided possession and enjoyment of the suit properties along with the defendants, the property in question was divided into two sub-divisions. The first defendant’s name was entered in respect of RS No.5/1 and the name of defendant No.3 was entered in respect of RS No.5/2. It is contended that plaintiffs have 1/3rd share in the suit schedule property.
4. The defendants have filed their written statement contending that after the death of Neelappa, Ningappa, Basavanneppa and the wife of Yellappa were joint family members as Mahadevappa was given in adoption. The plaintiffs were living with Mahadevappa from the date of adoption itself. Ningappa and Basavanneppa continued to be the joint family members and each of them is entitled for share in the properties.
5. On the basis of the pleadings, the Trial Court had framed the issues. The relevant issues for the purpose of this appeal are as under:
“(i) Whether the plaintiffs prove that as the sons of Mahadevappa before his adoption are entitled to 1/3rd share in the suit properties?
(ii) xxxxxx xxxxx xxxxx
(iii) xxxxx xxxxx xxxxx]
(iv) Whether the plaintiffs are entitled to partition and possession of their share?”
6. The parties have let in their evidence. On consideration of the materials on record, the Trial Court has dismissed the suit. However, the Lower Appellate Court has allowed the appeal. Consequently, the judgment and decree in O.S.No.8/1977 dated 25.9.2002 on the file of the Civil Judge (Sr.Dn.), Hubli, was set aside. The Lower Appellate Court has held that the plaintiffs are entitled for 1/3rd share in R.S.No. 5/1, measuring 6 acres 21 guntas of Pashupathihal village, Kundagol Taluk.
7. While admitting the appeal, this Court has framed the following substantial question of law:
“Whether the plaintiffs whose father was given in adoption after their birth have right of inheritance in the family of their birth?”
8. Learned Counsel for the appellants/defendants would contend that when the father of the plaintiffs was given in adoption to some other family, he ceases to be a member of the genitive family for all purposes. Mahadevappa having gone in adoption in the year 1951, the children though born prior to his date of adoption cannot claim any share in the property of genitive family of Mahadevappa as the line of succession of Mahadevappa closes on the date of his adoption. It is further contended that having regard to Section 12 of the Hindu Adoption and Maintenance Act, 1956, 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 from such date all the ties of the child in the family of his/her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. Therefore, the Court below was not right in holding that plaintiffs have a right in the properties of their genitive family.
9. On the other hand, Learned Counsel appearing for the respondents/plaintiffs submits that a Hindu on his birth acquires interest in the joint family property of his grand father. This right is not extinguished. It is submitted that the father of the plaintiffs was given in Adoption in the year 1951. The Hindu Adoption and Maintenance Act, 1956 has come into force w.e.f. 21.12.1956. Therefore, the provisions of the said Act are not applicable to this case. It is contended that when the father of the plaintiffs went in adoption, he ceases to be the member of the family of the plaintiffs. However, the plaintiffs do not lose the gotra and right of inheritance in the family of their birth and do not acquire the gotra and right of inheritance of the family in which their father was adopted. Therefore, the plaintiffs continue to be the members of the genitive family and are entitled for a share in the suit schedule property.
10. I have carefully considered the arguments of the Learned Counsel made at the Bar and perused the materials placed on record.
11. The Lower Appellate Court has decreed the suit in the part. It has held that plaintiffs are entitled for 1/3rd share in R.S.No.5/1 measuring 6 acres 21 guntas of Pashupathihal village of Kundagol Taluk. The defendants have filed this appeal challenging the said decree. Therefore, the appeal is confined to aforementioned one item of the suit schedule property described in this paragraph only.
12. It is not in dispute that the property in question belonged to Neelappa Havalappa Boli, the grand father of the plaintiffs. Ningappa, Basavenneppa and Mahadevappa were the sons of Neelappa Havalappa Boli. Mahadevappa was given in adoption to some other family in the year 1951. Defendant Nos. 1 and 2 were the sons of Ningappa and defendant Nos.3 to 7 are the successors of Basavenneppa. The provisions of the Hindu Adoption and Maintenance Act, 1956, which has come into force w.e.f. 21.12.1956 has no application to the facts of this case because the father of the plaintiffs was given in adoption much earlier to the date of the said Act coming into force. The validity of adoption made prior to the said Act is not affected in any manner.
13. Adoption has the effect of transferring the adopted boy from his natural family into the adoptive family. It confers upon the adoptee the same rights and privileges in the family of the adoptor as the legitimate son. An adopted son acquires the rights of a son in the adoptive family. However, he loses all the rights of son in his natural family including the right of claiming any share in the estate of his natural father or natural relations or any share in the coparcenary property of his natural family. The wife passes with her husband into the adoptive family because according to the Shastras, husband and wife form one body. It is settled that when a married Hindu is given in adoption and at the time of his adoption, his wife is pregnant, and a son is born to him, the son on his birth passes into the adoptive family and is entitled to inherit in that family, the reason given being that such a son is born into the adoptive family and therefore, he is treated as a member of that family (see TARABAI BHIMAGONDA PATIL and OTHERS vs. BABGONDA BHAU PATIL AND OTHERS1). An adopted son ceases to be a member of his genitive family on adoption and becomes the member of the adoptive family. The question is where a married person is given in adoption, whether his sons born prior to the date of adoption have a share in the property of their genitive family.
14. In LEKHRAM and OTHERS vs. MT. KISHNO2, it has been held that an adoption under the Mitakshara law has the effect of transplanting the adopted boy from his natural family into the family of his adoptive father and by such adoption, the adoptee acquires the rights and privileges of a natural son in the family of the adopter. He ceases to be a coparcener in the family of his birth from the time of his adoption and becomes one with his adoptive family immediately. This is, however, not so with regard to the sons of the adoptee in existence before the adoption. The transplantation is restricted and confined to the adoptee and his wife because she is half of his body (Ardhangi) and does not extend to his sons born before he was taken in adoption. Such sons do not acquire the status of coparceners in the family in which their father is adopted and they do not like their father, lose their gotra and right of inheritance in the family of their birth and do not acquire the gotra and right of inheritance in the family in which their father has been adopted.
15. In BABURAO AMBURAO and OTHERS vs. BABURAO BUGAJI and OTHERS3, it has held that a Hindu on his birth, acquires an interest in the joint family property of his grandfather and this right is not extinguished when his natural father is adopted by latter’s uncle as his son. The natural father’s personal status as his father’s son is completely destroyed, but that does not affect the status of his pre-adoption son. His pre-adoption son continues to be the grand son of his grand father and his right to partition in that branch is not in any way affected. The fact that the adoption of the natural father was in the same coparcenary makes no difference to the applicability of the aforesaid principle and consequently the grand son’s right to claim a partition in the branch of his grand father cannot be negatived.
16. In JESA and ANOTHER vs. KUMBHA4, it has been held that where a married person is given in adoption and such person has a son at the date of adoption, the son does not, like his father, lose the gotra and right of inheritance in the family of his birth, and does not acquire the gotra and right of inheritance in the family into which his father is adopted.
17. From the discussion made above, it is clear that an adoption under the Mitakshara law has the effect of transplanting the adopted boy from his natural family into the family of his adoptive father. He ceases to be a coparcener in the family of his birth from the time of adoption and becomes one with his adoptive family immediately. This is however not so with regard to the sons of the adoptee in existence before the adoption. His pre-adoption son continues to be the grand son of his grand father and his right to partition in that branch is not in any way affected. I am of the considered view that even if the plaintiffs father was given in adoption after their birth, they would be entitled to a share in the property of the genitive family of their father. The substantial question of law framed as above is answered accordingly.
18. At this stage, Learned Counsel for the appellants contends that even if it is assumed that the plaintiffs continue to be the members of genitive family, they do not become Class I heirs. It is true that under Section 8 of the Hindu Succession Act, a son of pre-deceased son is entitled for a share in the property of his father. The said Section has no application to the facts of this case. Admittedly, the family of the plaintiffs and the defendants is a Joint Hindu Family. The plaintiffs are claiming a share in the Joint Hindu family property of their grand father and this right is not extinguished when their natural father was given in adoption to some other family in the year 1951. The appeal is devoid of merits and it is accordingly dismissed. Draw the decree accordingly. No costs.