# Triloki Nath v. J.D.C. & Ors

- **Citation:** (2024) 5 ILRA 2085
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** Writ B No. 3587 of 1985
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/triloki-nath-v-j-d-c-ors-52046
- **Pages:** 6

## Headnote

Law
-
Hindu
Adoptions
and
Maintenance
Act,
1956-Section
7Uncle(Naval Kishore) of Petitioner was the
original tenure holder -died issueless-after his
demise-Petitioner being nephew -succeededduring
consolidation
proceedings-opposite
party filed a case u/s 12 of the Act, 1953claiming his co-tenancy rights on the said
chak being an adopted son on the basis of
registered adoption deed-rejected-Appealallowed-Revision
by
Petitioner-dismissedimpugned-Hindu male can adopt a childconsent of wife is necessary-adoption deed
had sign of Naval Kishore, the adopted child
and his wife-sign of wife of Naval Kishore was
not there-no reason for his wife not signing itconsent should not necessarily be in writingcan be done by producing evidence -since no
consent of wife of late Naval Kishore nor in
writing nor in inference- impugned orders
quashed.

W.P. allowed. (E-9)

List of Cases cited:

## Text

5 All. Triloki Nath Vs. J.D.C. & Ors.
2085
real and substantial justice for which the
court alone exists.

26. Accordingly in view of the above
discussions and observations made, this
application
is
allowed,
the
entire
proceeding
of
Complaint
Case
No.281/2022; Smt. Pooja vs. Kaushar and
Others, under Sections 323 and 504 I.P.C.
and Section 3(1) (S) of Schedule Caste and
Schedule Tribes (Prevention of Atrocities)
Act, 1989, Police Station-Bilgram, DistrictHardoi as well as summoning order dated
09.04.2024 are hereby quashed so far it
relates to the present applicants.
---------
(2024) 5 ILRA 2085
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ B No. 3587 of 1985

Triloki Nath ...Petitioner
Versus
J.D.C. & Ors. ...Respondents

Counsel for the Petitioner:
S.P. Shukla, Arvind Kr. Shukla, B.B. Singh,
S.N. Goswami, S.P. Shukla, Shitla Prasad
Tripathi

Counsel for the Respondents:
C.S.C. Sri Ashok Kr. Baladiha, D.C.
Mukherjee, Raj Mani Dubey

Civil
Law
-
Hindu
Adoptions
and
Maintenance
Act,
1956-Section
7Uncle(Naval Kishore) of Petitioner was the
original tenure holder -died issueless-after his
demise-Petitioner being nephew -succeededduring
consolidation
proceedings-opposite
party filed a case u/s 12 of the Act, 1953claiming his co-tenancy rights on the said
chak being an adopted son on the basis of
registered adoption deed-rejected-Appealallowed-Revision
by
Petitioner-dismissedimpugned-Hindu male can adopt a childconsent of wife is necessary-adoption deed
had sign of Naval Kishore, the adopted child
and his wife-sign of wife of Naval Kishore was
not there-no reason for his wife not signing itconsent should not necessarily be in writingcan be done by producing evidence -since no
consent of wife of late Naval Kishore nor in
writing nor in inference- impugned orders
quashed.

W.P. allowed. (E-9)

List of Cases cited:

1. Ghisalal & ors.. Vs Dhapubai (Dead) by LRs.
& ors.[AIR (2011) SC 644]

2. Uttam Chandra & ors. Vs St. of U.P & ors. -
Writ B No. 3822 of 2023

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Shri Shitla Prasad Tripathi,
learned counsel for petitioner, learned
counsel for respondent as well as Shri
Hemant Kumar Pandey, learned State
Counsel.

2. During the pendency of the
present writ petition, the petitioner has
expired and in his place his legal heirs
have been substituted and they will be
referred to as petitioner. Similarly, during
the pendency of the present writ petition,
respondent nos. 3, 4 and 5 have also
expired and their legal heirs have been
substituted and they will be referred to as
respondent.

3. The present writ petition has
been preferred for quashing of the
impugned
revisional
order
dated
25.05.1985 and the appellate order dated
07.01.1985.
2086 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Learned counsel for petitioner
has submitted that the uncle of the
petitioner Naval Kishore was the original
tenure holder of the Chak no. 32 situated at
village Gumwa, District Sultanpur and he
died issueless, hence after his demise, the
petitioner being the nephew, would succeed
the rights over Chak No. 32 as successors
of late Naval Kishore.

5. During the consolidation
proceedings, respondent no. 3 Ram Ujagir
(now deceased) had filed a case under
Section 12 of the Consolidation of
Holdings Act, 1953 for claiming his cotenancy rights on Chak No. 32 being an
adopted son of late Naval Kishore, on the
basis of the registered adoption deed dated
30.09.1972. The said case preferred by
respondent no. 3 was dismissed by
judgment
and
order
dated
26.10.1983.Against which the respondent
no. 3 had preferred an appeal under Section
11(1) of the Act, 1953 which was decided
in his favour by judgment and order dated
07.01.1985. Against which, the petitioner
preferred a revision under Section 48(1) of
the Act, 1953 which was dismissed by
judgment and order dated 25.05.1985 and
feeling aggrieved by the appellate order and
the revisional order, the present writ
petition has been preferred.

6. It is further submitted that the
issue which was to be decided by the
appellate court as well as the revisional
court was whether the adoption was in
accordance with proviso to Section 7 of the
Hindu Adoptions and Maintenance Act,
1956 (hereinafter referred to as 'the Act,
1956') which provides that the consent of
the wife of the person adopting the child
shall be necessary and the same was not
there at the time of adoption and the
registration of the adoption deed. So, the
adoption of the respondent no. 3 is invalid
and no right could be given to the
respondent no. 3 in pursuance of the
adoption deed which is invalid. In support
of his submission, learned counsel for the
petitioner has relied upon the judgment of
Hon'ble Supreme Court in the case of
Ghisalal and Ors. vs. Dhapubai (Dead) by
LRs. and Ors. [AIR (2011) SC 644].

7. It is further submitted that the
respondent no. 3 had not adduced either any
documentary evidence or oral evidence to
establish that there was a consent of the
wife of Late Naval Kishore at the time of
adoption of respondent no. 3 and in absence
of the same, the adoption of the respondent
no. 3 is not valid in the eyes of law.

8. On the other hand, learned
Standing Counsel and the counsel for the
respondents have submitted that it is not
necessary that the consent should be in
writing.

9. It is further submitted that the
statement of the marginal witness (Indrajeet
Tiwari)
was
recorded
before
the
Consolidation Officer wherein he had
stated that the adoption was with the
consent of the wife of Late Naval Kishore
and she was present at the time of adoption.

10. It is further submitted that even
respondent no. 3 had also given his
statement that he was adopted with the
consent of wife of Late Naval Kishore. It is
further submitted that the petitioner has not
challenged the adoption deed till date and
as per Section 16 of the Act, 1956, it would
be presumed that the adoption deed is valid
being a registered document.

11. It is further submitted that the
wife of Late Naval Kishore pre-deceased
5 All. Triloki Nath Vs. J.D.C. & Ors.
2087
her husband i.e. Late Naval Kishore, so this
issue is of no relevance now at all in the
present case.

12. After hearing the learned
counsel for the parties, going through the
record of the case, in the present case, the
issue which is to be adjudicated that
whether there was any consent in writing or
tacit consent of the wife of Late Naval
Kishore was there at the time of adoption or
not in the light of proviso to Section 7 of the
Act, 1956 and the judgment of the Hon'ble
Supreme Court relied by learned counsel
for the petitioner in the case of Ghisalal
and Ors. (supra). For convenience, the
proviso to Section 7 of the Act, 1956 is
quoted hereinbelow:-

"7. Capacity of a male Hindu to
take in adoption.- Any male Hindu who is
sound mind and is not a minor has the
capacity to take a son or a daughter in
adoption:

Provided that, if he has a wife
living, he shall not adopt except with the
consent of his wife unless the wife has
completely and finally renounced the world
or has ceased to be a Hindu or has been
declared
by
a
court
of
competent
jurisdiction to be of unsound mind.

Explanation: If a person has
more than one wife living at the time of
adoption, the consent of all the wives is
necessary unless the consent of any one of
the them is unnecessary for any of the
reasons specified in the preceding proviso."

13. From perusal of the proviso to
Section 7 of the Act, 1956, wherein it is
provided that a Hindu male can adopt a
child but if he has a wife living then her
consent is necessary unless the wife has
completely and finally renounced the world
or is ceased to be a Hindu or has been
declared
by
a
court
of
competent
jurisdiction to be of unsound mind.

14. In the present case, the
adoption deed which was read by learned
counsel for respondent no. 3 to establish
that there was consent of wife of late Naval
Kishore for adoption, but he has failed to
show even a single line that his wife
consented for adoption, rather he has
addressed himself only everywhere i.e. 'I' in
place of 'We'. The adoption deed was
signed bearing thumb impression of late
Naval Kishore, the biological parents of
respondent no. 3, the adopted child i.e. Ram
Dev Pandey and his wife. If these persons
could sign or put their thumb impression on
the adoption deed at the time of its
registration then the wife of late Naval
Kishore could have signed or given her
thumb impression on the same. There
seems to be no reasons as to why the wife
of late Naval Kishore could not have signed
or put her thumb impression on the
adoption deed while others had done so.

15. It is not necessary that the
consent should be in writing. This can be
done either by producing documentary
evidence showing her consent in writing or
by leading evidence to show that wife had
actively participating in the ceremonies of
adoption with an affirmative mindset to
support the action of her husband. For that
learned counsel for the respondent no. 3 has
submitted that the statements of Ram
Ujagir i.e. the person who had been adopted
and one Shri Indrajeet, the marginal witness
of adoption deed were recorded and both of
them in their statement had submitted that
the adoption was made with the consent of
the wife of late Naval Kishore. But both
these persons whose statements have been
relied by learned counsel for the respondent
no. 3 are interested witness to support and
2088 INDIAN LAW REPORTS ALLAHABAD SERIES
protect the validity of the adoption deed, for
the reason one is the person himself who
was adopted and second is the marginal
witness of the adoption deed. They did not
state as to in what manner the wife of late
Nawal Kishore expressed her consent for
adoption except that she had participated.
Except
them no
other
person was
adduced/produced to state that wife of late
Naval Kishore had consented for the
adoption though it was the case of the
respondents throughout that after the
ceremonies and following rituals in
presence of the villagers, Pandit, Nau
(barber) the adoption was made. But none
of these persons were produced in support
of their submissions by respondent no. 3.
Even those witnesses namely Indrajeet
Tiwari and Ram Ujagir have not stated that
wife of late Naval Kishore had actively or
otherwise participated in any of the rituals
or in the proceedings of adoption, much
less with mindset of having given the
consent for adoption. As discussed earlier
also mere her presence at the time of
adoption of little consequence.

16. The Hon'ble Supreme Court in
the case of Ghisa Lal (supra) has
interpreted the term "consent" used in
proviso to Section 7 of the Act, 1956. The
relevant
paragraph
are
quoted
hereinbelow:-

"20. 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.
 21. At this stage, we may notice
some precedents which have bearing on the
interpretation of proviso to Section 7 of the
1956 Act. In Kashibai v. Parwatibai
(supra), this Court was called upon to
consider whether in the absence of the
consent of one of the two wives, the
adoption by the husband could be treated
valid. The facts of the case show that
Plaintiff No. 1 and Defendant No. 1 were
two widows of deceased Lachiram. Plaintiff
No. 2 was daughter of Lachiram from his
first wife Kashibai and Defendant No. 2
was the daughter from his second wife
Parwati. Defendant No. 3, Purshottam son
of Meena Bai and grandson of Lachiram.
The Plaintiffs filed suit for separate
possession by partition of a double storey
house, open plot and some agricultural
lands. The Defendants contested the suit.
5 All. Triloki Nath Vs. J.D.C. & Ors.
2089
One of the pleas taken by them was that
Purshottam son of Meena Bai had been
adopted by deceased Lachiram vide
registered
deed
of
adoption
dated
29.4.1970, who had also executed deed of
Will in favour of the adopted son
bequeathing the suit properties to him and
thereby denying any right to the Plaintiffs
to claim partition. The trial Court decreed
the suit for separate possession by partition
by observing that the Defendants have
failed to prove the adoption of Purshottam
by Lachiram and the execution of Will in his
favour. The High Court reversed the
judgment of the trial Court and held that the
Defendants had succeeded in proving
execution of the deed of adoption and the
deed of Will in accordance of law and as
such the Plaintiffs were not entitled to any
share in the suit properties. On appeal, this
Court reversed the judgment of the High
Court and restored the decree passed by the
trial Court. On the issue of adoption of
Purshottam, this Court observed:
 It is no doubt true that after
analysing the parties' evidence minutely the
trial court took a definite view that the
Defendants had failed to establish that
Plaintiff 1, Defendant 1 and deceased
Lachiram
had
taken
Defendant
3,
Purshottam in adoption. The trial court
also recorded the finding that Plaintiff 1
was not a party to the Deed of Adoption as
Plaintiff 1 in her evidence has specifically
stated that she did not sign the Deed of
Adoption nor she consented for such
adoption of Purshottam and for that reason
she did not participate in any adoption
proceedings. On these findings the trial
court took the view that the alleged
adoption being against the consent of Kashi
Bai, Plaintiff 1, it was not valid by virtue of
the provisions of Section 7 of the Hindu
Adoptions and Maintenance Act, 1956.
Section 7 of the Act provides that any male
Hindu who is of sound mind and is not a
minor has the capacity to take a son or a
daughter in adoption. It provides that if he
has a wife living, he shall not adopt except
with the consent of his wife. In the present
case as seen from the evidence discussed by
the trial court it is abundantly clear that
Plaintiff 1 Kashi Bai the first wife of
deceased Lachiram had not only declined
to participate in the alleged adoption
proceedings but also declined to give
consent for the said adoption and,
therefore, the plea of alleged adoption
advanced by the Defendants was clearly hit
by the provisions of Section 7 and the
adoption cannot be said to be a valid
adoption."

17. The said judgment has been
followed by this Court very recently in the
case of Uttam Chandra and two others
versus State of U.P and ten others in Writ
B No. 3822 of 2023, judgment dated
30.11.2023.

18. The other submission of
learned counsel for the respondent no. 3 is
that the petitioner had not adduced any
evidence to disprove that the adoption was
without the consent of the wife of late
Naval Kishore, the onus was upon them.
The said submission of leanred counsel for
the respondent no. 3 is not acceptable as the
Hon'ble Supreme Court in the case of Ghisa
Lal (supra) has held, that if the adoption
deed by a hindu male becomes subject
matter 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. Here it is the
respondent no. 3 who had failed to adduce
any independent evidence to show that the
adoption of respondent no. 3 was with the
consent of the wife of late Naval Kishore.
Even the participation if any, of the wife of
2090 INDIAN LAW REPORTS ALLAHABAD SERIES
late Naval Kishore in the rituals of
adoption, even that cannot be said that it
was a consent by the wife of late Nawal
Kishore as per the law settled in the case of
the Ghisa Lal (supra).

19. The appellate and revisional
Court for treating the adoption deed proved
had relied upon section 6, 11 and 16 and
other sections of the Act, 1956 but no
plausible and reasonable finding has been
given as far as the objection raised by the
petitioners in pursuance to proviso to
Section 7 of the Act, 1956 i.e. the consent
of the wife of the late Naval Kishore. But
merely on the basis of statement of
Indrajeet Tiwari, the marginal witness
treating the adoption deed valid despite the
finding that there was no consent of the
wife of late Nawal Kishore in writing.

20. In view of the facts,
circumstances
and
discussion
made
hereinabove, it is clear that the adoption
was not in accordance with the proviso to
Section 7 Act, 1956, since there was not
consent of the wife of late Nawal Kishore
for the adoption in writing nor it could so
inferred by merely her presence during the
adoption ceremonies, more particularly,
there is affirmative mindset of her consent,
as held by the Hon'ble Supreme Court in the
case of Ghisa Lal (supra) that such a
presence would be as an spectator in the
assembly of people.

21. In the result, the writ petition is
allowed.

22. The impugned revisional order
dated 25.05.1987 and appellate order dated
07.01.1985 are hereby quashed.
----------
(2024) 5 ILRA 2090
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ C No. 2967 of 2024

Satya Narayan Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dinesh Kumar Singh

Counsel for the Respondents:
S.C., Vineet Kumar Singh

U.P. Revenue Code, 2006-Petitioner is a
complainant -on his instance proceedings u/s 67
of U.P. Revenue code, 2006 were initiated
against the Respondent no.5-on report being
called-the proceeding u/s 67 were droppedAppeal-rejected- Writ is maintainable-cannot be
left remedy-less where no other statutory
remedy is provided-entire case of Petitioner is
based upon the report-report was submitted
without proper survey-upon objection by
Respondent-alleged
constructions
existedPetitioner not been able to demonstrate how the
report is bad-no ground to interfere.

W.P. dismissed. (E-9)

List of Cases cited:

1. Rahul Kumar Vs St. of UP & ors. reported in
2023 (9) ADJ 614

2. Ghanshyam Verma & ors. Vs St. of UP & ors.
reported in 2021 (7) ADJ 67

3. Rahul Kumar Vs St. of UP & ors. reported in
2023 d(9) ADJ 614

4. Shambhunath Pandey Vs St. of UP & ors.

5. Writ C No. 29440 of 2021,decided on
10.11.2021
Neutral
Citation
No.
2021:AHC:134861