# 1 S.C.R. 651 GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS - **Citation:** [2011] 1 S.C.R. 651 - **Court:** Supreme Court of India - **Decided:** 2011-01-12 - **Case number:** Civil Appeal Nos.6373-6374 of 2002 - **Bench:** G.S. Singhvi, Asok Kumar Ganguly - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-s-c-r-651-ghisalal-v-dhapubai-dead-by-lrs-and-ors-27231 - **Pages:** 36 ## Headnote Hindu Adoption and Maintenance Act, 1956: A B s. 7, proviso - Consent of wife is a condition precedent c . 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 . 0 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 E 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 Dhaplibai 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 F 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 G - 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 651 H " 652 SUPREME COURT REPORTS [2011] 1 S.C.R. A 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 B 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 c 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. · D s. 7, proviso - Interpretation of the term 'consent' used in the proviso - Held: The term 'consent used in the proviso to '-f' 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 E 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 F done by her - Interpretation of statutes - Purposive interpretation. Hindu law: Old. and present law relating to adoption - Comparison between - Hindu Adoption and Maintenance Act, G 1956. -j... 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 H GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 653 that his natural father, Kishanlal had made him to sit in A ,.,,. 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 8 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 ·· .. ## Text _Characters 0–39,721 of 74,221. This is a partial read: ask again with offset=39721 for what follows._ y [201) 1 S.C.R. 651 GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. (Civil Appeal Nos.6373-6374 of 2002) JANUARY 12, 2011 [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.] Hindu Adoption and Maintenance Act, 1956: A B s. 7, proviso - Consent of wife is a condition precedent c . 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 . 0 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 E 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 Dhaplibai 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 F 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 G - 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 651 H " 652 SUPREME COURT REPORTS [2011] 1 S.C.R. A 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 B 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 c 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. · D s. 7, proviso - Interpretation of the term 'consent' used in the proviso - Held: The term 'consent used in the proviso to '-f' 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 E 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 F done by her - Interpretation of statutes - Purposive interpretation. Hindu law: Old. and present law relating to adoption - Comparison between - Hindu Adoption and Maintenance Act, G 1956. -j... 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 H GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 653 that his natural father, Kishanlal had made him to sit in A ,.,,. 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 8 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 c 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 D gift deeds were obtained by fraud. In her written y statement, Dhapubai not only disputed the adoption of Ghisalal by Gopaiji, but categorically averred that she had not consented to the adoption. She also questioned the locus stahdi of Ghisalal to challenge the gift deeds. E 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 F 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 G ' -Jr' 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 H 654 SUPREME COURT REPORTS • (2011) 1 S.C.R. A 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 B 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 c is subject to the rider enshrined in the proviso which lays down that if the male Hindu has a wife living then he s'l)all not adopt except with the consent of his wife unless slle is incapacitated to give the consent by reason of her having completely and finally renounced the world or hel'I 0 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 f!'lom E 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 F 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 G maintain relatives in the family of his or her birth. H 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 GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 655 whenever any document registered under any law for the A - ""' 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 otherwis.e. [Para 17) B [673-C-H; 674-A·C) ~ 2.1. In Indian society, a male spouse enjoyed the -J position of dominance for centuries together. This was " particularly so in Hindu families. Under the old Hindu Law, c 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 D death, she could adopt a son to him, in certain parts of r 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 E conferred no legal rights upon the adopted person. A daugMer 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, F 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 G ·~ 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. H 656 SUPREME COURT REPORTS [2011] 1 S.C.R. A 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 B 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 c 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 0 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 E 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 F 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·· G 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 H provisions, the court shall have to keep in view the legal - r'".; • r._ t. . , i - L - .JI 1 i , . . 1 •. ~ • :_• , •• I . ~ r- • : ;·.~ ! GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 657 ~'~ I ! : l.'f 1 • ' ~ · • II . ' , .. I " '; l - • f'"' • . ~' 1 position obtam1~g ~efore enac~men~ of ~~~ .19~~ Aft., tl],e A object of the hew legislation arid apply the rule of purposive interpretation and if that is done, it woulCJ be reasonable to say that the consent of wife envisaged in the proviso t() Section 7 should either be in writing or :.,.., . . · · · -··. 1;"'. ·u~ ··r , •, ,. · .._,.,..., .• ,,. -.r .'' . '·1 r. refl~cted -~y -~n, affJrm~tive/p~si~ive act ,yolunt~rily a~d 8 willingly done by her •. If the adoption by a Hindu male ' ~ f • • •... j J ' . . : ,_.. I becor1es subJ~f,~ ~?~~~r r '!f. ch~!~~,n~~, b~fore ~he ~ourt; _the party supporting the adoption· has to adduce evidence to prove ,that. the same .was done with the consent ,of ti is' wife. t~is l ~~ii ~e ~one either, by c producing doc~ijle~t l!Videhc!ilg h~r consent iri _writing or by leading. evidence to sHow that wife had actively participated iri tile cereiTionie~ 8i adoption .witti an t' • ~ ~···"·,·'.- ··.~_;; -1 il'fo' J" ~·I ·:1-:I~] ,._j, • ' "L" 11.,,_ affirmative mmdsetto support the action of the husband to take a son or a daughter in adoption: The presence of D wife as a spectatoHii the assembly of people who gather at the place. whefe Hie ceremonies of adoptiOri are -~ -ii.•.· . ' - - ; ~. ~ ~ ' ' t.1 . i:-,,... J • J - performed cannot be treated as her consent. In otHer · .'·-~1·f~ .. r1·- ,_.,. J.,~.~, .f".-: ,, - .~ ... words, the Cou11_c~nnot pre!"ume the _con~ent of wife simply, because she .~as _pre~ent at the ,thtie of adoptio"!. E !h~. wife';; silence or .la~_k of protest.pn her P.art also cannot give rise to an inference ttiat she tlad consented fo the adoption: [Pata 20] [675-H; G7£~:A-E] - . - . . . - ! 1 - - - ' . - - 3.1. This Court is extremely loath to interfere with the coilc-urrent finding of fact recorded by the _courts beiow F inore particularly when such finding has been approved by the High Court. In such matter~; !~terf.erence is warranted only When this Court is convi~~ed t~at the finding is ex lacie p~rverse. A find!ng .of fact can be ,.,,_ treated as perverse if it is based on no evidence or there G is to~al misreading of pleadings and/or evidence of the p-arties or - the findlng is based on unfounded assumptions or conjectures. [Para 23] [680-A-B] '' H 658 SUPREME COURT REPORTS [2011) 1 S.C.R. A 3.2. In support of his claim that he had been adopted by Gopalji, Ghisalal appeared in the witness box as PW1 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 B 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 crossexamination, Ghisalal disclosed that his father Kishanlal c had got him admittect 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 0 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, E 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 sh~ 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 F 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, G D'JV-3, DW-4 and DW•S 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. H High Court misdirected themselves in deciding the issue .; GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS .. 659 relating to Dhapubai's consent to the adoption of Ghisalal A by Gopalji. AU the courts held that the consent of Dhapubai could be presumed because she was present in the ceremonies of adoption. The H.igh Court went a step further and observed that failure of Dhapubai to challenge the adoption deed is a strong circumstance to B 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 · c 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 0 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) [684E 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 F (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 tile 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 G 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 E~hibit P-1 cannot be H 660 SUPREME COURT REPORTS [2011) 1 S.C.R. A 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 B . 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 C the parties, the courts below failed to notice an impo,rta"!t 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 D show that the written statement in the s~it 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 E 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 F of the adoption but was also instrumental in Ghisalal's admission in the school and defending the case flied 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 196:4 Pannalal v. GhisaiaJ and another was filed G by Kishanlal in February, 1966, there remains no doubt that testimony of Kishanlal was most crucial and yet tie was not examined. The trial court did take cognizance of this omission but brushed aside the same with a cry,pth:: observation that no objection was raised from the sidEt H of the defendants that Ghisalal was not given in ad.npt.10.n + -+ ~Y ~is ~a~!.lral f~~~~f · ThE7 !~~~r ~RPe!l!ite ~gurt an~ ~~e ~ High' Court did not· even ~advert fo"this important lacuna which would. have'' made' any 'person' of reaso'n'aille prudence to; ao'ubt the· bonafides 'o( Ghis,alal'-s' claim that tie' was a'dopted by Gopalji with the' consent ·of Dhapubai: [Para 33r£685~D!H; ~6,86-A~cr' 1 1' • : • ·· · - )• ; :. ~ ~' 8 •• ~ .... J-1 -~·_ •. ~.,, •. '" .. ,_~ 'J . 4.2. The concurrent finding rec9rded by the trial court . rl. ' - l - •I . I > } -• ! • 1 ~; r·~ "f and the lower·a·ppellate court, which was approved by the t . · f ,. t-,, ' '~ . · _ I • ~ t . r' ~ , , :_ _ _ • :-, ., High Court that·Gopalji had adopted Ghisalal with the ••• : ! I ' I l .. -1- •• I r"":l'~, {''~ >1lLt I: .... ! 1-' . ··n r'lrl consent of Dhapuba1 was perverse inasmuch as the s~me was' based' o'n urifOunded 'as~umptions' and' pure ~ d>tijectJres.' DhapubalJhiid succeeded iii' proving that' the t .. : · 1, ' .-i.··•. • 1 -.fl 1:·•..--,-Q·~""t'llP·(1 1r .!rr·:··~ c - , . 1.- -r adoption of Ghisalal by Gopalji was not valid because her d . .. ~· , ' J ' • • . - I -y., ··~ ..__, ,.I.I• I . . .• : consent was not obtained as per the mandate of the ·. ' . ' r ' , . ' ' ~ r .. - ·-· , r proviso to Section 7 of the 1956. Act. Therefore, the suit filed by Ghisalal' was ·'not 'maintainable 'and the findings D ,·- ll '- ··- •. -.-· • ·' l» - - "' .,.;, ~ "f .a::~~ ••.. , . K. Laxmanan v. Thekkayil Padmini (2009) 1 SCC 354; Janki Narayan Bhoir v. Narayan Namdeo'kadanf (2oo3) 2 S~p 91; Kashibai v. Pa'rwati~af (1'995) ·s s·cc 21 ~; F Brajendra Singh v. State of M;P. (2008) 13 SCC 161; I ' • • I J " " ~ · • ' · • ·, ' I •i • ; Moo/chand Chhota/al v. Amritbai Manji Khoda Bhai and others (1976) MPlJ"382 - refei"red''to.·/ ',. J·•·· 4 ,,... .,_c '' - ;-, .,O•t'°r:'l!J Case Law Reference: l. ~ ·...; G~' ;,~~LI J, ;t..,t;. Para14 {. 1.L" (2009) ~ sec 354 Ir • .1 1 ~ -\.. _, ..,, • referred to r•-· f:._ . I l.l.' ~·J Para 14 (2003) 2 sec 91 , ' • . - ~' ' •. 1 j referred to ' .. , .·b--~ ·~ ... ~ara 15 « (1995) 6 sec 213 J - . .,. : ~ referred to ' ''J " ~ ~ f L G H A B c 662 SUPREME COURT REPORTS c2008) 13 sec 161 (1976) MPLJ 382 referred to . referred to [2011) 1 S.C.R. Para 15 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 D Respondents. The Judgment of the Court was delivered by G.S. SINGHVI, J. 1. Whether mere presence of Dhapubai E in the ceremonies performed by her husband Gopalji for adoption of Ghisalal amounted to her co.nsent as contemplated by the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956 (for short, 'the 1956 Act') is the main question which arises for consideration in these appeals filed F against judgment dated 12.9.2000 of the learned Single- Judge of the Madhya Pradesh High Court, Indore Bench whereby he partly allowed the second appeals filed by the parties and modified the decree passed by the lower appellate Court, which had substantially reversed the decree passed by the trial Court in a suit for declaration, partition and possession. -G 2. Although, Gopalji, Dhapubai and Sunderbai who were impleaded as defendant Nos.1to3 in Suit No.54A of 1973 filed by Ghisalal died during the pendency of litigation, for the sake of convenience, we shall refer to them by their names and not H by the description given in the suit and the appeals. I / GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 663 [G.S. SINGHVI, J.J 3. The pleaded case of Ghisalal was that in Baisakh of A Samvat2016 (1959) his father, Kishanlal gave him in adoption to Gopalji; that ceremonies like putting of tilak on his forehead · and distribution of sweets were performed; that registered deed of adoption was executed by Kishanlal and Gopalji on 25.6.1964; that Gopalji had inherited certain agricultural lands B of villages Jeeran, Arnya Barona, Kuchrod, a two storeyed house and one court-yard from his father Roopji; that after · adoption, he became coparcener in the family of Gopalji and thereby acquired right in the suit properties; that Gopalji executed three Gift Deeds dated 22.10.1966 whereby he c transferred lands of villages Jeeran, Amya Barona and Kuchrod to his wife Dhapubai and the . latter sold a portion of land in survey No.945 of village Kuchrod to Sunderbai vide Sale Deed dated 19.1.1973; that the gift deeds executed by Gopalji in favour of Dhapubai were fraudulent and were intended to D depriv~ him of his right in the an.cestral properties and that even in his capacity as karta of the family, Gopalji could not have gifted more than 1/3rd of his share. On the basis of these pleadings, Ghisalal prayed that a decree of partition be passed, and he be given one half share in the suit properties. He further prayed that Gopalji may be directed to give an account of the E agricultural produce and pay him his share. 4. In the written statement filed by him, Gopalji pleaded that he had not adopted Ghisalal ~nd no ceremony was performed; that the so called adoption deed was obtained by F playing fraud and the same was not binding on him; that the suit properties were not ancestral and that he was entitled to execute gift deeds in favour of his wife. In her separate written statement, Dhapubai also denied the. factum of the adoption of Ghisalal by Gopalji and claimed that she had not given G · consent for the same. She then pleaded that if by taking advantage of .the simplicity of Gopalji, the plaintiff obtained some writing or deed, the same is not binding on them. She further pleaded that the gift deeds were valid and Ghisalal has no right to challenge the alienation of property by her husband. H 664 SUPREME COURT REPORTS [2011) 1 S.C.R. A 5. After filing of the written statement, Dhapubai sought and was granted leave to amend the written statement whereby she pleaded that Gopalji had earlier executed registered Gift Deed dated 29.11.1944 in her favour in respect of the lands comprised in Survey Nos.2097, 2763 and 3170 (old Survey B Nos.2856, 3042/2 and 3528) of village Jeeran and she was in possession of the same. As a sequel to this, Ghisalal amended the plaint and pleaded that Gift Deed dated 29.11.1944 was not valid because the land of village Jeeran was not capable of being gifted and, in any case, the same was not binding on c him. He further pleaded that Gift Deed dated 29.11.1944 was not acted upon inasmuch as the property had not been transferred in the name of Dhapubai. 6. During the pendency of the suit, Gopalji executed registered Will dated 27. 10.1975 purporting to bequeath the D suit properties to- his wife Dhapubai. After some time, Gopalji died. E F G H 7. In the light of the pleadings of the parties, the trial Court framed the following issues: (1) Whether the suit properties mentioned in Para-6 of the plaint are the property of Joint Hindu Family? (2) Whether the plaintiff is the legally adopted son of defendant No.1 and 2? (3) Whether the Gift Deed dated 22.10.66 is illegal and void? (4) (5) (6) Whether the sale deed dated 19 .1. 73 has no effect on the plaintiff? Whether the court fee has been properly paid? Whether the statement made by the defendant in Suit No. 76 of 1964 is binding on the defendants as per the law of estopple? • -+ ~tl!S,.A.LA, .. L ~· D!-1,1\P,L/~~I (D!=~P> 8-Y LLB~· ~,~P R~~· ~R~ ' . " ' ' . [G.$.' SINGHVI, J.] '~ . - ' (7) • (8) Relief and expenses. ,v, 1·,,_.1•',_ 1 u11u _.,....fJ~I ·-.e···· 8. After considering the pleadings and evidence produGed by the parties: the tri~l'Courfheid'as"'uhder:· '"--"' "' ,; ur "'-t:u ~ • ._· ._1 d .:J LI it:: ...... 1 ....... vu~ 1 •• ch • ..! _ !). U! 1 , - (1) I (2) '~ r (3) _..,, (4) (5) The suit properties were ancestral properties of Gopatji. - •• - 1 ' '. ,.:-. --.!;. t; " '' .. - - d' ,.,, -_.,__··. '.•l j u' 'J ' Will dated 27.10.1975 executed by Gopalji in favour of'bila'pub~i WaS 1 invalid. '-'" 1 < y - ' < I' II l.!VUI..• t l . l ... '' • ' ! I l ""'"'!n~ 1~1 Gift Deed dated 29.11.1944 executed by Gopalji . I I ~--·'l, ·-· I I , ... ,,.Lt t--<:Y"-"I'' ·:.--..! u ':il -· in favour of Dhapubai was not valid inasmuch as '" • I~· ·I,.. ~. ' ·3 : ''.'· v·_ 1''1j It .1 .• ~J i 11l,.t • rt!:"- there was no acceptance by the donee anC1 alienation of ancest~alproperty by'Gopalfi ln'favour I' , 1 u~ . • f Ip L 1 • 'j ';f,J,_l ·f t Ill '.;.;t'.l()'J; of his wife was not for a pious purpose.' .. 1-, ·- .i.....~ 11,_,~ "'..ii , 'J'..i.4 ·Jl..ff"'V.;,)t"' 9. Dhapubai challenged the judgment and decree of the trial Court by tilih 1g an"ap~eal under'section'96'rela& with '6rl:ler XLI Rule 1 of the Code'Of Civil Procedure.' The lower ·a'pp'eiiate Court Jag reed with 'the triai Cburt ithat' the suit. properfiesr-were ancestral; that the adoptio 1n of Ghisalal byGopalji'was'vilid'and that the gift deeds" ·executed 'in' favour' of Dtla'pulJai were 'H6t valid·. However, 'the findings recorde·d on' tlie'fegality"of Gift • · f · · · , '' ~- ·~ "'•' I 11 \._"•1• ~ Deed dated 29.11.1944 and Will dated 27.10;1975. (both ' Jt:- . ~ - f. -J 1 ' ' · ~ l t. l - w ' £. I ' \ J • • f • \ l( H · executed by Gopalji ih favour of Dhapubai) were set aside" and ~R·: .. ,. -., L • 'Jf'' -··· ...• · ·, I J' ~' ·; 't ·r•,, "'·'•.._. tr. ''">H •. :1--"' .::11 '' B u c ' D u E [. F I' G l'J H I I 666 SUPREME COURT REPORTS [2011] 1 S.C.R. A it was declared that Ghisalal is entitled to 1/3rd share in the suit properties except the land covered by Gift Deed ,dated 29.11.1944. The lower appellate Court also. directed that whole of the land situated at village Kuchrod may be given to Ghisalal as his 1/3rd share so that there may not be any dispute B between the parties in future. 10. Both, Ghisalal and Dhapubai challenged the judgment of the lower appellate Court by filing Second Appeal Nos.25 of 1978 and 61 of 1978. During the pendency of the second + C appeals, ·Dhapubai died and her.legal representatives were brought on record. D e. F G 11. While admitting the second appeal filed by Ghisalal, the High Court framed the following substantial questions of law: (1) What would be the respective shares of the plaintiffappellant and defendant No.1 Dhapubai in the suit properties according to law in case the Will Ex.D.2 is held to have been proved and what would be their shares in case it were to be held otherwise? (2) Whether the execution and attestatio'1 of the Will Ex.D/2 have been proved in accordance with law? (3) Whether there is legal evidence to prove the gift of the properties comprised in Ex.D/1 by Gopal in . favour of Dhapubai? (4) Whether the lower Court has acted without jurisdiction or erroneously in. giving directions with respect to the apportionment of the plaintiffs share in the suit land? 12. In the second appeal filed by Dhapubai, the High Court framed the following substantial questions of law: · (1) Whether there is any legal evidence on record to prove H the consent of Mother Dhapubai as required by Section 7 .GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 667 [G.S. SINGHVI, J.] . of theHindu Adoption and Maintenance Act, 1956 for the A --< vali.d adoption of plaintiff Ghisalal? (2) Whether the court below had jurisdiction to impose a condition that Dhapubai will not get the lands situated in · village Kuchhdod? B (3) Whether the finding of the Court below that suit -f properties are ancestral is perverse? 13. The learned Single Judge confirmed the finding recorded by the two Courts on the legality of Ghisalal's adoption c , ' by Gopalji. The learned Single Judge also agreed with the lower : appellate Court that Ghisalal was not entitled to challenge Gift Deed dated 29.11.1944 but held that Will dated 27 .10.1975 cannot be treated to have been validly executed by Gopalji. T-he learned Single Judge further held that the lower appellate Court D y was not justified in issuing a direction that Ghisalal be given land in village Kuchrod and Dhapubai would not get any share in that land. He finally disposed of the second appeals with the following directions: "The appeal filed by each of the party is partly allowed. It E is directed that each of the party is entitled to half share in the agricultural lands of village Jeeran, Kuch rod and Amya Barona, barring the lands already given to Dhapubai under gift ·deed dated 29.11.1944. Each of the party i.e. Ghisalal and Dhapubai through her successors have half share in F the house property situate at Village Jeeran. The property, already. sold by Dhapubai to the defendant No.3 Sundarbai shall be brought back to the hotchpot. If the . plaintiff agrees that land survey No.347 admeasuring 0.375 .:..,(' hectare of village Kuchrod can be given to the defendant G ' No.3 Sundarbai then the said property can be given to her and that much of the property shall stand reduced from the share of Dhapubai, but if the plaintiff does not agree to it then survey No.947 of village Kuchrod shall be brought to the hotchpot and the property shall be partitioned in H • 668 SUPREME COURT REPORTS I [2011) 1 S:C.R. A accordance with the provisions of law. Sundabai shall be entitled to 0.375 hectares of land from the share of ~ ,• Dhapubai which property could be given to her may be m!Jtually settled and agreed between the successors of Dhapubai and Sundarbai. On such an agreement particular B land falling in share of Dhapubai may be' given to Sundarbai but in case such an agreement cannot be arrived at then the officer competent to partition the property shall give 0.375 hectare land to Sundarbai from -+- the share of Dhapubai, after firstly effecting the partition c between Ghisalal and successors of Dhapubai. The parties shall be at litierty to make an application to the trial court to refer the matter to the Collector for effecting partition or in the alternative with the permission of the trial court the party/parties may make necessary application for D partition to the Collector or the competent Officer. Regarding partition of the house ttie party/parties may 'Y make an application to the trial Court for appointment of Commissioner. The terms of the commission and the fees of the Commissioner shall be fixed by the trial court." E 14. Shri Puneet Jain, learned counsel for Ghisalal argued that Dhapubai's challenge to the adoption of Ghisal~I by G~palji was rightly negatived by the trial Court, the lower appellate Court and the High Court and in exercise of power under Article 136 of the Constitution, this Court is not entitled to interfere with the F concurrent finding of fact. He pointed out that the trial Court and the lower appellate Court had concurrently held that Ghisalal was taken in adoption strictly in ·accordance with law and a registered deed of adoption was also executed by the natural a.nd adoptive fathers and argued that the High Court rightly G declined to upset the said finding. Learned counsel emphasized ~ that the consent of Dhapubai was rightly presumed by the Courts below because she was present in the ceremonies of adoption and did not question the adoption till the stage of filing written statement in the suit filed by Ghisalal. Shri Jain also H referred to the averments contained in the written statement filed <3HlsAL~L v. oH.i\P.U?Ai (D~{\R> ~y u~s: AND oRs. 5g9 [G.S. SINGHVI, J.) - ~' 1n;qi •• ~' ·I'~- .. ,~ .. ·.1. 1_ .... 1:v ,.,_ .. by Gopalji in Civil Suit No.76A of 1964 - Parinalal v; Ghisalal A. · (1., . ,1 • ~ · - , · t ' ' = ·. · ' · ~t_. ., I L ~--r! ;l. and another wherein he aamitted the adoption of Ghisalal ana ,~ •1(11 .. ,, ..... ~•·•~·-· . (-,~· ·~. 0 1 '-~jl ;', -.~ 1,·•~ .' ·'1'. l','I argued that the contrary assertion made in the.written statement filed in the suit of Ghisafal was rightly discarded oy the courts •I ~f'·~· t• ' _ • J ,-- J.1, _ L.• lJ 1~ 0 ··'' ·•i1••~ ~ , ·f _.,'.. _ ' ·.-'~ below and the High.Court. Learned counsel furtlier argued tliat ~fte~~ ~i~. a~cjpt\o~. ¢,_His~.i~I ~~c~m.~. -~ ~~parc~nerJn 'theJ~ryi~y B ?f 9.9J?~lji. a,n~:- wa~"en_ti.tle~ -~~£~~-1~.,~~a_r~e 1jnJ~e, pr_o~ert!es m~~f~t~p l?,Y 1P)s . 1~dop~X~f~~t-~~f- ~.~.9·~ ~~ :;~p~;_. me. f1,l"!d1pg r7cor~e;a. by, the;_ 19i.ye~ ~ppe.llat~S~oH~,~pd ,the ~1gh fourt .on -+ his locus to challenge Gift Deed dated 29.11: 1944, which , • ..... ,- t- . ·, - -~ "" ~' -· - ' 1W11.·1'"'' adversely affected. his right in the suit properties is legally r 1. • ' ' ' .,, ~ • ,. •• ·'. ·.•· • ~ - • ''. c unsu~tainable. Learned _coun~el ~~bmi~~d th~t ~y~n tho1;1gb po spei::ific prayer was made in.the suit tor setting aside Gift Dee9 dated 29.11.1944, the triai Court had rightly declared the same to be invalid, ineffective aria inop~rative bec~use Ghisai~i i-ia~ · -- - : ~ ·1~.,;,·t H • • 'IL. .. ·'~ ••• ~ 1i.! 1_ 1 •'rl 0•.· ·uh~ 1 ••••• challenged vahd1ty. tliereof by amending ttje plaint ana th~ 1 • parties Jlad adduced evidence kRowing fully wail ,that the legallfy D P· f' I .· ,..._ ·. • .J 1··. '' - , ..... ~ 1 j ·" ( • -J · .'' , I • '· 1 '-f' of the gift deed of ~944 i~,:;ubj~