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Hindu Adoption and Maintenance Act, 1956: s.7, proviso – Consent of wife is a condition precedent for adoption by a male Hindu – Consent should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her – Presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent – Wife’s silence or lack of protest on her part also would not give rise to an inference that she had consented to the adoption – In the instant case, Ghisalal claimed right in properties of Gopalji on the ground that Gopalji had adopted him with the consent of his wife Dhapubai – All the courts below held that the consent of Dhapubai could be presumed because she was present in the ceremonies of adoption – High Court went a step further and observed that failure of Dhapubai to challenge the adoption deed was a strong circumstance to show that she had consented to the adoption of Ghisalal by her husband – Courts below completely ignored that presence of Dhapubai in the ceremonies of adoption was only as a mute spectator and not as an active participant – Neither Ghisalal nor any of the witnesses examined by him stated that before taking Ghisalal in adoption, Gopalji had consulted Dhapubai or taken her in confidence and that the latter had given her consent or agreed to the adoption or that she had taken prominent part in the adoption ceremonies – All of them made a parrot like statement that Dhapubai was sitting with other women below the chabutra – No evidence was produced by Ghisalal to prove that Dhapubai was a signatory to the adoption deed or was present at the time of its execution and/or registration – Therefore, the contents of adoption deed could not be made basis for assuming that Dhapubai was a party to the adoption – Testimony of Kishanlal, the natural father of Ghisalal was most crucial and yet he was not examined – The concurrent finding recorded by the courts below that Gopalji had adopted Ghisalal with the consent of Dhapubai was perverse inasmuch as the same was based on unfounded assumptions and pure conjectures – Dhapubai had succeeded in proving that the adoption of Ghisalal by Gopalji was not valid – Therefore, the suit filed by Ghisalal for partition of properties belonging to Gopalji was not maintainable. s.7, proviso – Interpretation of the term `consent’ used in the proviso – Held: The term `consent used in the proviso to s.7 and the explanation appended thereto has not been defined in the Act – Therefore, while interpreting the provision, the court has to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that is done, it would be reasonable to say that the consent of wife envisaged in the proviso to s.7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her – Interpretation of statutes – Purposive interpretation. Hindu law: Old and present law relating to adoption – Comparison between – Hindu Adoption and Maintenance Act, 1956. The case of the appellant was that one Gopalji had taken him in adoption at the age of 5-6 years in 1959. He gave description of the adoption ceremonies by stating that his natural father, Kishanlal had made him to sit in the lap of Gopalji and the latter accepted him as the adopted son. The deed of adoption was executed and got registered on 25.6.1964. Dhapubai, the wife of Gopalji had consented to the adoption. The appellant filed a suit for partition with a prayer that he should be given one half share in the properties belonging to Gopalji. In the said suit, he challenged gift deed dated 22.10.1966 executed by Gopalji in favour of Dhapubai and sale deed dated 19.1.1973 executed by the latter in favour of one Sunderbai in respect of one parcel of land. Later on, an amendment was also made in the plaint that gift deed dated 29.11.1944 was invalid, inoperative and ineffective and did not affect his right to get share in the ancestral properties. He alleged that the gift deeds were obtained by fraud. In her written statement, Dhapubai not only disputed the adoption of Ghisalal by Gopalji, but categorically averred that she had not consented to the adoption. She also questioned the locus standi of Ghisalal to challenge the gift deeds. The trial court held that the suit properties were ancestral properties of Gopalji and the appellant was validly adopted son of Gopalji and the consent of Dhapubai could be presumed from her presence in the adoption ceremonies; and the gift deeds and Will were not valid. The first appellate court upheld the order of the trial court. The High Court confirmed the findings recorded by the two courts on the legality of Ghisalal’s adoption by Gopalji and that Ghisalal was not entitled to challenge the gift deed dated 29.11.1944 but held that Will Dated 27.10.1975 could not be treated to have been validly executed by Gopalji. Ghisalal and Dhapubai filed instant appeals before this Court. =Disposing of the appeals, the Court HELD: 1. Section 6 of the Hindu Adoptions and Maintenance Act, 1956 lays down that no adoption shall be valid unless the person adopting has the capacity as also the right to take in adoption; the person giving in adoption has the capacity to do so; the person adopted is capable of being taken in adoption, and the adoption is made in compliance with the other conditions mentioned in Chapter II. Section 7 lays down that any male Hindu who is of sound mind and is not minor has the capacity to take a son or a daughter in adoption. This is subject to the rider enshrined in the proviso which lays down that if the male Hindu has a wife living then he shall not adopt except with the consent of his wife unless she is incapacitated to give the consent by reason of her having completely and finally renounced the world or her having ceased to be a Hindu or she has been declared by a court of competent jurisdiction to be of unsound mind. The explanation appended to Section 7 lays down that if a person has more than one wife living at the time of adoption, then the consent of all the wives is sine qua non for a valid adoption unless either of them suffers from any of the disabilities specified in the proviso to Section 7. Section 12 deals with effects of adoption. It declares that from the date of the adoption, an adopted child is deemed to be a child of his/her adoptive father or mother for all purposes and his ties in the family of his or her birth shall stand severed and replaced by those created in the adoptive family. Clause (b) of the proviso to Section 12 saves the vested right of the adopted child in the property subject to the obligations, if any, attached to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth. Likewise, clause (c) to the proviso lays down that the adopted child shall not divest any person of any estate vested in him or her before the date of adoption. Section 16 which embodies a rule of presumption lays down that whenever any document registered under any law for the time being in force evidencing adoption and signed by the person giving and person taking the child in adoption is produced before any court, then it shall presume that the adoption has been made after complying with the provisions of the Act unless proved otherwise. [Para 17] [673-C-H; 674-A-C] 2.1. In Indian society, a male spouse enjoyed the position of dominance for centuries together. This was particularly so in Hindu families. Under the old Hindu Law, a Hindu male had an absolute right to adopt a male child and his wife did not have the locus to question his right or to object to the adoption. A wife could adopt a son to her husband but she could not do so during her husband’s lifetime without his express consent. After his death, she could adopt a son to him, in certain parts of India, only if he had expressly authorized her to do so. In other parts of India, she could adopt without such authority. However, in no case a wife or a widow could adopt a son to herself. An adoption by a woman married or unmarried of a son to herself was invalid and conferred no legal rights upon the adopted person. A daughter could not be adopted by a male or a female Hindu. The physical act of giving was a prime necessity of the ceremonial requirements relating to adoption. As to datta homam, that is, oblations of clarified butter to fire, the law was not finally settled and there was divergence of judicial opinion. After India became a sovereign, democratic republic, this position has underwent a sea change. The old Hindu Law was codified to a large extent on the basis of constitutional principles of equality. The Hindu Marriage Act, 1955 codifies the law on the subject of marriage and divorce. The Hindu Succession Act, 1956 codifies the law relating to intestate succession. The Hindu Minority and Guardianship Act, 1956 codifies the law relating to minority and guardianship among Hindus. The 1956 Act is also a part of the scheme of codification of laws. Once the Hindu Succession Act was passed giving equal treatment to the sons and daughters in the matter of succession, it was only logical that the fundamental guarantee of equality of a status and equality before law is recognized in the matter of adoption. The 1956 Act now provides for adoption of boys as well as girls. By virtue of the proviso to Section 7, the consent of wife has been made a condition precedent for adoption by a male Hindu. The mandatory requirement of the wife’s consent enables her to participate in the decision making process which vitally affects the family. If the wife finds that the choice of the person to be adopted by the husband is not appropriate or is not in the interest of the family then she can veto his discretion. A female Hindu who is of a sound mind and has completed the age of eighteen years can also take a son or daughter in adoption to herself and in her own right. A female Hindu who is unmarried or a widow or a divorcee can also adopt a son to herself, in her own right, provided she has no Hindu daughter or son’s daughter living at the time of adoption [Sections 8, 11(1) and 11(2)]. However, if she is married, a female Hindu cannot adopt a son or a daughter during the lifetime of her husband unless the husband is of unsound mind or has renounced the world. By incorporating the requirement of wife’s consent in the proviso to Section 7 and by conferring independent right upon a female Hindu to adopt a child, Parliament has tried to achieve one of the facets of the goal of equality enshrined in the Preamble and reflected in Article 14 read with Article 15 of the Constitution. [Paras 18, 19] [674-D- H; 675-A-G] 2.2. The term `consent’ used in the proviso to Section 7 and the explanation appended thereto has not been defined in the Act. Therefore, while interpreting these provisions, the court shall have to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that is done, it would be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. If the adoption by a Hindu male becomes subject matter of challenge before the Court, the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing document evidencing her consent in writing or by leading evidence to show that wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption. The presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent. In other words, the Court cannot presume the consent of wife simply because she was present at the time of adoption. The wife’s silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption. [Para 20] [675-H; 676-A-E] 3.1. This Court is extremely loath to interfere with the concurrent finding of fact recorded by the courts below more particularly when such finding has been approved by the High Court. In such matters, interference is warranted only when this Court is convinced that the finding is ex facie perverse. A finding of fact can be treated as perverse if it is based on no evidence or there is total misreading of pleadings and/or evidence of the parties or the finding is based on unfounded assumptions or conjectures. [Para 23] [680-A-B] 3.2. In support of his claim that he had been adopted by Gopalji, Ghisalal appeared in the witness box as PW-1 and examined PW-2, PW-3 and PW-4. He produced copy of the deed of adoption (Exhibit P-1), the plaint (Exhibit P-21) of Suit No.76A of 1964 filed by one Pannalal in which he and Gopalji were impleaded as defendant Nos.1 and 2 and copies of the written statements (Exhibits P-2 and P-3) filed in that suit. He also examined witnesses to prove these documents. In the cross-examination, Ghisalal disclosed that his father Kishanlal had got him admitted in the school and in the school records, the name of his natural father Kishanlal was entered. In the cross-examination, he stated that at the time of registration, Gopalji, his father Kishanlal and Dhapubai had come along with him but he did not know whether Dhapubai had signed on the registry. He also stated that there was no talk of obtaining signature of Dhapubai in his presence but volunteered to say that she was agreeable. The other three witnesses also spoke about the ceremonies of adoption. According to them, Dhapubai was sitting below the platform (chabutra). In her statement, Dhapubai categorically stated that Gopalji had not obtained her consent for the adoption of Ghisalal and that she had not gone to tehsil for the purpose of registry. Dhabubai also stated that she did not know whether Gopalji had gone to tehsil and got the registry of adoption deed. She expressed ignorance about the adoption of Ghisalal by Gopalji. She then stated that she did not want to take anyone in adoption. She also spelt reasons for some of the PWs deposing in favour of Ghisalal. The other witnesses examined by Dhapubai, namely, DW-2, DW-3, DW-4 and DW-5 also expressed their ignorance about the adoption of Ghisalal by Gopalji. [Paras 25, 27] [680-G-H; 681-C-G; 682-A-C] 3.3. The trial court, the lower appellate court and the High Court misdirected themselves in deciding the issue relating to Dhapubai’s consent to the adoption of Ghisalal by Gopalji. All the courts held that the consent of Dhapubai could be presumed because she was present in the ceremonies of adoption. The High Court went a step further and observed that failure of Dhapubai to challenge the adoption deed is a strong circumstance to show that she had consented to the adoption of Ghisalal by her husband. Unfortunately, all the courts completely ignored that presence of Dhapubai in the ceremonies of adoption was only as a mute spectator and not as an active participant. Neither Ghisalal nor any of the witnesses examined by him stated that before taking Ghisalal in adoption, Gopalji had consulted Dhapubai or taken her in confidence and the latter had given her consent or agreed to the adoption of Ghisalal or that she had taken prominent part in the adoption ceremonies. All of them made a parrot like statement that Dhapubai was sitting with other women below the platform (chabutra). By no stretch of imagination, this could be equated with her active participation in the adoption ceremonies so as to enable the courts to draw an inference that she had given consent for the adoption of Ghisalal. [Para 30] [684-C-G] 3.4. Another grave error committed by all the courts was that they had presumed the consent of Dhapubai by relying upon the contents of the deed of adoption (Exhibit P-1) in which Gopalji was said to have recorded that it was his and his wife’s esteemed desire to take Ghisalal in adoption. It was neither the pleaded case of Ghisalal nor any evidence was produced by him to prove that Dhapubai was a signatory to Exhibit P-1 or that she was present at the time of execution and/or registration of Exhibit P-1. Therefore, the contents of Exhibit P-1 could not be made basis for assuming that Dhapubai was a party to the adoption of Ghisalal. The so called failure of Dhapubai to challenge Exhibit P-1 cannot be used against her because Ghisalal did not adduce any evidence to show that after execution of the deed of adoption, Dhapubai was made aware of the same or a copy thereof was made available to her. In the absence of such evidence, it cannot be assumed that Dhapubai was aware of the execution and registration of the deed of adoption and she deliberately omitted to challenge the same. [Paras 31, 32] [684-H; 685-A-D] 4.1. While analyzing and evaluating the evidence of the parties, the courts below failed to notice an important lacuna in Ghisalal’s case, that is, non examination of Kishanlal who, as per Ghisalal’s own version had not only taken active part in the ceremonies of adoption but was also a signatory to the deed of adoption. The statements of PW-7, Advocate and his clerk PW-8 would show that the written statement in the suit filed by Pannalal was drafted under the instructions of Kishanlal and he had signed the same as guardian of Ghisalal. This would show that Kishanlal had played the most pivotal role in the adoption of Ghisalal by Gopalji. Therefore, he was the best person who could support Ghisalal’s plea that he was taken in adoption by Gopalji and Dhapubai had given consent for the same. No explanation was given why Kishanlal was not examined despite the fact that he was not only actively involved at various stages of the adoption but was also instrumental in Ghisalal’s admission in the school and defending the case filed by Pannalal. If the statements of Ghisalal and PW-3 are read in conjunction with the fact that written statement in Suit No.76A of 1964 Pannalal v. Ghisalal and another was filed by Kishanlal in February, 1966, there remains no doubt that testimony of Kishanlal was most crucial and yet he was not examined. The trial court did take cognizance of this omission but brushed aside the same with a cryptic observation that no objection was raised from the side of the defendants that Ghisalal was not given in adoption by his natural father. The lower appellate court and the High Court did not even advert to this important lacuna which would have made any person of reasonable prudence to doubt the bonafides of Ghisalal’s claim that he was adopted by Gopalji with the consent of Dhapubai. [Para 33] [685-D-H; 686-A-C] 4.2. The concurrent finding recorded by the trial court and the lower appellate court, which was approved by the High Court that Gopalji had adopted Ghisalal with the consent of Dhapubai was perverse inasmuch as the same was based on unfounded assumptions and pure conjectures. Dhapubai had succeeded in proving that the adoption of Ghisalal by Gopalji was not valid because her consent was not obtained as per the mandate of the proviso to Section 7 of the 1956 Act. Therefore, the suit filed by Ghisalal was not maintainable and the findings recorded by the trial court, the lower appellate court and/or the High Court on the validity of gift deeds dated 29.11.1944 and 22.10.1966, Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai and sale deed dated 19.1.1973 executed by her in favour of Sunderbai are liable to be set aside. [Para 34] [686-C-F] K. Laxmanan v. Thekkayil Padmini (2009) 1 SCC 354; Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91; Kashibai v. Parwatibai (1995) 6 SCC 213; Brajendra Singh v. State of M.P. (2008) 13 SCC 161; Moolchand Chhotalal v. Amritbai Manji Khoda Bhai and others (1976) MPLJ 382 – referred to. Case Law Reference: (2009) 1 SCC 354 referred to Para14 (2003) 2 SCC 91 referred to Para 14 (1995) 6 SCC 213 referred to Para 15 (2008) 13 SCC 161 referred to Para 15 (1976) MPLJ 382 referred to Para 29 CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6373-6374 of 2002 From the Judgment & order dated 12.09.2000 of the High Court of Madhya Prades at Jabalpur in Second Appeal Nos. 25 & 61 of 1978. With C. A. Nos. 6375-6376 of 2002 Puneet Jain, Pretibha Jain for the Appellant. Nikhil Majithia, Rameshwar Prsad Goyal for the Respondent

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.6373-6374 OF 2002 Ghisalal … Appellant Versus Dhapubai (Dead) by L.Rs. and others … Respondents With CIVIL APPEAL NOS. 6375 – 6376 OF 2002. Dhapubai (Dead) Widow of Gopalji … Appellants through L.Rs. Versus Ghisalal and others … Respondents J U D G … Continue reading

withdraw of suit = it cannot be held that sufficient grounds have not existed for him to file a fresh suit after withdrawing the present suit, as earlier suit was filed only for an injunction simplicitor, while the proposed suit is for grant of multiple reliefs. Even if the observation of the Court below that the mosque was demolished and a foundation was laid at the time of filing the suit was correct, that by itself would not constitute a ground to reject the request of the petitioner to file a comprehensive suit by withdrawing the present suit.

THE HON’BLE MR JUSTICE C.V.NAGARJUNA REDDY Civil Revision Petition No.327 of 2011 15-04-2011 Mohammad Gaffur Uppada Madayya and another Counsel for the Petitioner: Sri K.Manik PrabhuCounsel for respondents:Sri P.Ponna Rao for Sri K.S.Murthy:ORDER: This civil revision petition arises out of order, dated 30.12.2010, in I.A.No.172 of 2010 in O.S.No.9 of 2005 on the file of … Continue reading

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