# DWARKANAm v. SBRI LAL CHAND AND OTOE~

- **Citation:** [1965] 3 S.C.R. 27
- **Court:** Supreme Court of India
- **Decided:** 1965-02-10
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dwarkanam-v-sbri-lal-chand-and-otoe-3484
- **Pages:** 7

## Headnote

A
DWARKANAm
v.
SBRI LAL CHAND AND OTOE~
February 10, 1965
B [P. B.
GAJENDRAGADKAR, C.J., M. HIDAYATULLAH, J. c. SHAH
AND S. M. SIKRI, JJ.]
c
n
E
F
G
U.P. Court of Wards A~, 1912 (Aot 4 of 1912), ss. 37, 53-Scope
of-Consent of Court of Wards for AdOl>tion-Jf adoption can be
challenged in Civil Court.
A widow whose estate was under the charge of the Court of
Wards, made an adoption and applied under s. 37 of the U.P. Court
of Wards Act, 1912. for permission to make the adoption. The Collector refused the permission as the grant of authority to adopt,
by the husband who died in 1901, was not proved. The 1st respondent's father, the nearest reversioner, filed a suit challenging the
adoption as contrary to s. 37 of the Act and the suit was decreed.
The widow. thereafter, applied to the Court of Wards for permission to adopt the appellant. Fresh enquiries about grant of
authority by the husband to adopt, were made, and permission was granted ·and the appellant was adopted in 1929. Immediately
after the adoption of the appellant the Court of Wards, released the
estate and assumed charge of it again on behalf of the appellant
who was a minor. On the death of the widow in 1943, the 1st respondent's father filed a suit, challenging the validity of the appellant's adoption on the ground that the widow had no authority from
her husband to adopt. The Trial Court decreed the suit and the High
Court, on appeal. affirmed the decree. In appeal to this Court it was
contended that the conclusion of the Court of Wards to grant permission and the reasons for the decision could not be questioned in
a civil suit.
HELD : The Civil Court was competent to reconsider the question
nf the authority given by the husband, even after the consent of th.e
Court of Wards.
Section 37 of the U.P. Court ·of Wards Act affects the competence
of the wards to make an adoption, and as the consent of the Court
of Wards is a pre-requisite, any adoption made without such consent must be ineffective. The section, however, does not make the
sanction of the Court of Wards cure illegalities or breaches of Personal law. Nor does the sanction make up for incompetence arising
under the personal law. Those matters would have to be determined
according to the personal law in a Civil' Court of competent jurisdiction. f30E-G]
·
~ction 5~ also is not a bar to such a suit. The section only
provides that if the Court of Wards gave or refused its consent· to a
proposed adoption a suit would not lie to cancel the consent or to
compel it. It does not go to the length of saying that after the consent of the Court of Wards, the adoption itself cannot be questioned
at all. f30Hl
In deciding the question of authority, the statements made by
witnesses at the second enquiry by the Court of Wards for giving
its consent to adopt, could not be considered by the Civil Court as
they were not relevant or admissible either under s. 32(7) or s. 157
of the Indian Evidence Act. f32 D-F; 33 A-Cl
28
SUPREME
.COURT
REPORTS
[1965] 3 s.c.R.
As the 1st respondent's father never llccepted the appellant's
A
adoption it could not be said that the suit, filed more than 15 years
after the adoption during which time the appellant had been con-
>idered by everyone to be legally and validly adopted, ought to !Je·
dismissed. f33E-G l
ClVIL APPELLATE JURISDICTION: Civil Appeal No. 195 of
1%3.
B
Appeal from the judgment and decree dated March 24, 1959
of the Allahabad High Court in First Appca!No. 76/47.
C. B. Agarwa/a and J. P. Goyal, for the appellant.
S. T. Desai, M. V. Goswami and B. C. Misra, for the respondent No. I.
M. V. Goswami and B. C. Misra, for respondents Nos. 2, 7.
and 8.
R. S. Gupta, S. S. Klianduja and Ganpat Rai, for respondent
No. 9.

## Text

A
DWARKANAm
v.
SBRI LAL CHAND AND OTOE~
February 10, 1965
B [P. B.
GAJENDRAGADKAR, C.J., M. HIDAYATULLAH, J. c. SHAH
AND S. M. SIKRI, JJ.]
c
n
E
F
G
U.P. Court of Wards A~, 1912 (Aot 4 of 1912), ss. 37, 53-Scope
of-Consent of Court of Wards for AdOl>tion-Jf adoption can be
challenged in Civil Court.
A widow whose estate was under the charge of the Court of
Wards, made an adoption and applied under s. 37 of the U.P. Court
of Wards Act, 1912. for permission to make the adoption. The Collector refused the permission as the grant of authority to adopt,
by the husband who died in 1901, was not proved. The 1st respondent's father, the nearest reversioner, filed a suit challenging the
adoption as contrary to s. 37 of the Act and the suit was decreed.
The widow. thereafter, applied to the Court of Wards for permission to adopt the appellant. Fresh enquiries about grant of
authority by the husband to adopt, were made, and permission was granted ·and the appellant was adopted in 1929. Immediately
after the adoption of the appellant the Court of Wards, released the
estate and assumed charge of it again on behalf of the appellant
who was a minor. On the death of the widow in 1943, the 1st respondent's father filed a suit, challenging the validity of the appellant's adoption on the ground that the widow had no authority from
her husband to adopt. The Trial Court decreed the suit and the High
Court, on appeal. affirmed the decree. In appeal to this Court it was
contended that the conclusion of the Court of Wards to grant permission and the reasons for the decision could not be questioned in
a civil suit.
HELD : The Civil Court was competent to reconsider the question
nf the authority given by the husband, even after the consent of th.e
Court of Wards.
Section 37 of the U.P. Court ·of Wards Act affects the competence
of the wards to make an adoption, and as the consent of the Court
of Wards is a pre-requisite, any adoption made without such consent must be ineffective. The section, however, does not make the
sanction of the Court of Wards cure illegalities or breaches of Personal law. Nor does the sanction make up for incompetence arising
under the personal law. Those matters would have to be determined
according to the personal law in a Civil' Court of competent jurisdiction. f30E-G]
·
~ction 5~ also is not a bar to such a suit. The section only
provides that if the Court of Wards gave or refused its consent· to a
proposed adoption a suit would not lie to cancel the consent or to
compel it. It does not go to the length of saying that after the consent of the Court of Wards, the adoption itself cannot be questioned
at all. f30Hl
In deciding the question of authority, the statements made by
witnesses at the second enquiry by the Court of Wards for giving
its consent to adopt, could not be considered by the Civil Court as
they were not relevant or admissible either under s. 32(7) or s. 157
of the Indian Evidence Act. f32 D-F; 33 A-Cl
28
SUPREME
.COURT
REPORTS
[1965] 3 s.c.R.
As the 1st respondent's father never llccepted the appellant's
A
adoption it could not be said that the suit, filed more than 15 years
after the adoption during which time the appellant had been con-
>idered by everyone to be legally and validly adopted, ought to !Je·
dismissed. f33E-G l
ClVIL APPELLATE JURISDICTION: Civil Appeal No. 195 of
1%3.
B
Appeal from the judgment and decree dated March 24, 1959
of the Allahabad High Court in First Appca!No. 76/47.
C. B. Agarwa/a and J. P. Goyal, for the appellant.
S. T. Desai, M. V. Goswami and B. C. Misra, for the respondent No. I.
M. V. Goswami and B. C. Misra, for respondents Nos. 2, 7.
and 8.
R. S. Gupta, S. S. Klianduja and Ganpat Rai, for respondent
No. 9.
The Judgment of the Court was delivered by
Hidayatullah, J. This appeal arises from a suit filed by respondents 1 and 2 for declaration of their rights to the Phulpur Estate,
c
D
for possession of properties belonging to the Estate and for mesne
profits. The Phulpur Estate is situated in Allahabad District. One E
Rai Bahadur Rai Pratap Chand who died on January 23, 1901,
was the Zamindar of this Estate. After his death, his widow Rani
Gomti Bib; succeeded to the Estate. Rani Gomti Bibi was considerably ilnfiuenoed by her brother Gaya Prasad and priests belonging to some temples. In the years following the death of her
husband, Rani Gomti Bibi made many endowments
involving
F
vast properties and in July 1920, the Court of Wards assumed
charge of the Estate which the Rani was mismanaging. On Feb·
ruary 21. 1923, the Rani adopted one Bindeshwari Prasad and then
applied to the Court of Wards under s. 37 of the U.P. Court of
Wards Act for permission to make the adoption. The Collector
(Mr. Knox) made an enquiry and ')n April 3, 1923, made a report
G
Ex. 79 stating that the evidence tendered before him was so conflicting and unreliable that he had come to the conclusion that the
authority of Rai Pratap Chand to adoption by his widow was not
proved. He, therefore, recommended that Rani Gomti Bibi be
declined "permission to make the adoption and the Board of
RevenuP- accordingly refused permission. Rani Gomti Bibi, how· H
ever, executed a deed of adoption on November 6, 1924 in favour
of Bindeshwari Prasad. A suit was filed by Parmeshwar Dayal
(who was the first plaintiff in the. persent suit) in 1925 · against
Rani Gomti Bibi, Bindeshwari Prasad and the Court of Wards
challenging the adoption made by the Rani. On August 21, 1926,
the suit was decreed, and it was held that the adoption was contrary to s. 37 of the U.P. Court of Wards Act, 1912 and was thus
DWARKA NATH V. LAL CHAND (Hido!Nluilah, J.)
29
A invalid inasmuch as permission to take the adoption was not
obtained from the Court of Wards..
Rani Gomti Bibi then apphd to the Court of Wards for permission to adopt Bindeshwari Prasad's brother's son Dwarka Nath
who is the present appellant. Fresh enquiries, about the authority
B of the husband were made by the then Collector Mr. Thompson.
He examined witnesses from a fat filed by Gaya Prasad in the earlier suit of" 1925. After considering the evidence, the Collector re·
commended grant of permission under s. 37 of the U.P. Court of
Wards Act and permission was accordingly granted by the Board
of Revenue. On November 28, 1929, the Rani adopted Dwarka
c Nath at Phulpur. Immediately after th;s
adoption the Court of
Wards released the Estate and assumed charge of it again on behalf of Dwarka Nath who was a minor.
On January 5, 1943, Rani Gomti Bibi died and the present
suit was filed by Parmeshwar Dayal and one Amarrrath Agarwal
D to whom Parmeshwar Dayal had assigned 6/16th share in the
Estate. This suit was decreed by the Civil 'Judge of Allahabad who
held inter alia that Parmeshwar Dayal was the nearest reversioner
of Rai Partap Chand and was entitled to succeed him, and further
that the adoption was invalid as there was .no proof of authority
given by Rai Pratap Chand to Rani Gomti Bibi to make the adopE
tion. The suit for declaration and possession was decreed with
mesne profits amounting to Rs. 88,000 against Dwarka Nath and
the Collector and the Court of Wards who was also made a party
to the suit. Three appeals were filed against the judgment and by
a common judgment dated March 24, 1959, the High Court affirmed the decree except in respect of mesne profits. The High Court
p
certified the case as fit for appeal to his Court and the present appeal
results.
At the hearing, Mr. C. B. Agarwala stated on behalf of the
appellant that he did not challenge that Parmeshwar Dayal was
the nearest reversioner of Rai Pratap Chand. We are also not
G now concerned with the endowments. Mr. Agarwala contended
that the findings about authority by Rai Pratap
Chand to the
adoption were erroneous an required to
be
reconsidered.
In
seeking reconsideration of this finding, Mr. Agarwala relied both
on facts and law. In so far as his claim is to have the evidence
reconsidered, it may be stated at once that it is not the practice
H
of this Court to examine the evidence at large specially when the
High Court and the Court below have drawn identical conclusion
from it. In this case, the evidence about the authority, such as it
was, was considered both by the Trial Judge and the High Court
and they could not persuade themselves to accept it. Followin~
the settled practice of this Court we declined to look into the evidence for the third time, but we permitted Mr. Agarwala to raise
arguments of law and wt shall deal with tho'c arguments now.
LIB(D)2S0[-4
SUPREME
COURT
REPORTS
(1965] 3 8.C.B.
Mr. Agarwala relies upon ss 37 and 53 of the U.P. Court of A
Wards Act, 1912 and contends that inasmuch as the Court of
Wards made an enquiry into the truth of the allegat;ons that Rai
Pratap Chand had given express authority to Rani Gomti Bibi
to make an adoption after his death and found in favour of autho·
rity, the conclusion of the Court of Wards to grant permission
an? the. reasons for !he dec!sion cannot be questioned· by a civil B
suit. This argument, m our Judgment, cannot be accepted. Section
37, of the U.P. Court of Wards Act, in so far as it is material.
reads as follows: -
"37. pisabilities of wardsA ward shall not be competent-
(a) ...................... ..
(b) to adopt without the consent in writing of the
Court of Wards;
(c) ...................... ..
Provided, first, that the Court of Wards shall not
0
withhold its consent under clause (b) .. .. .. . .. . .. if the
D
adoption .. .. .. . .. .. . is not contrary to the personal or
special law applicable to the ward . "" .......... ".
The section obviously places a hurdle in the way of adoptions
by the wards which must be removed before the adoption can be
valid. The section affects the competence of the ·wards to make
the adoption and as the consent is a pre-requisite, any adoption B
made without such consent must be ineffective. The section, however, does not make the sanction of the Court of Wards to cure
illegalities or breaches of the personal law. Nor does the sanction
make up for incompetence arising under the personal law. It is
obvious that if the adoption is void by reason of the personal
law of the person adopting, tbe consent of the Court of Wards
1'
cannot cure it. Nor would the consent take the place of the essential ceremonies or the religious observances where necessary. Those
matters would have to be determined according to the personal
law in civil court of competent jurisdiction.
Mr. Agarwala argues that s. 53 is a bar to any suit questioning the adoption made after the consent of the Court of Wards to
11
the adoption has been given. That section cannot be used in this
manner. It reads :
"53. (i) The exercise of any discretion conferred on the
State Government or the Court of Wards by this Act ·
shall not be questioned in any Civil Court.
H
(2) ..................... ".
The section merely puts the exercise of discretion by officers
acting under the Court of Wards Act beyond question. Thus if thd
Court of Wards gave or refused its consent to a proposed adoption
a suit would not Ee either to cancel the consent or to compel it.
This section. however, does not go to the length that after the consent of the Court of Wards the. adoption 1tsel! cannot be question-
.
~
DWARKA NATH v. LAL CHAND (Hidayatullah, J.)
3L
A ed at all. There are no words in the section to this effect nor can.
such a result be implied. If the Court of Wards gave its concurrence to a proposed adoption, the bar created by s. 37 of the Act
would be removed, but it would not make the adopt'on immune
from attacks in a Civil Court on any ground on which adoptions
are usually questioned there. Mr. Agarwala claims that the reaB sons for the consent of the Court of Wards are a part of the consent and are within s. 53(1). This cannot be accepted, No doubt,
the Court of Wards reached its own conclusion for purpose of
s. 37 that Rai Pratap Chand had accorded authority to Rani
Gomti Bibi to adopt a son, but if the adoption was questioned in
a civil court, the civil court would not be ousted of its jurisdict;on
C to decide the question. All that the civil court would be compelled hold would be that the requirements of the Court of Wards
Act as to the consent of the Court of Wards were fulfilled. In our
judgment, the legal argument that after the consent of the Court
of Wards the Civil Court was incompetent to reconsider the ques.
tion of the authority given by the husband cannot be accepted.
D
In deciding the question of authority, the High Court rejected the oral evidence led before it and affirmed the conclusions of
the tr;al Judge. The High Court considered this evidence both intrinsically and in the light of the attending circumstances and
found it unacceptable. The trial Judge pointed out that as lawE
yers. were present when Rai Pratap Chand 'is alleged to have given
authority to his widow. and as it was also suggested that that fact
should be recorded, it was unbelievable, if the statements were
true, that written authority would not have been prepared then
and there. The High Court did not content itself with accepting
the opinion of the tr.ial Judge but discussed the evidence de nova
F and rejected it. The High Court pointed out that Rai Pratap
Chand was only 30 years old at the time of his death and his wife
was 25 years old and he could not have abandoned the hope of
having an issue. Evidence shows that the writ;ng was put off because it was not thought that Rai Pratap Chand was dying. The
High Court also pointed out that Rani Gomti Bibi executed betG ween November 24, 1901 and August 19, 1904 4 documents making d.ifferent endowments. In none of these documents, she mentioned that she had been asked by her husband to make them.
The High Court pertinently pointed out that the oral evidence
showed that the declaration of the authority to his wife and the
H
oral will to make the endowments, were made by Rai Pratap
Chand at the same tim:: ~nd these facts would have figured as
the reason for the endowments in these documents. Mr. Agarwala
contends that even if the reasons for the endowments might be
expected to be expressed, it is not logical to say that the deeds
11hould have recited the irrelevant fact that authority was given
to Rani Gomti Bibi to make the adoption. This is perhaps right,
but the fact remains that the two directions of Rai Pratap Chand·
went hand in hand; and even if the fact of authority was not
SUPREME
COURT
REPORTS
(1965] 3 8.C.R.
recited in the documents, one would expect at least the oral wiU
A
to make the endowments to be menti9ned. This shows that the ·
whole story about oraLdir.ections to Rani Gomti Bibi was untrue.
Mr. Agarwala then seeks to ii'se · the statements made by
Gaya Prasad and the witnesses before Mr.
Thompson. In the
High Court this claim was based upon ss .. 11, 32 and 157 of the
Indian Evidence Act. The High Court rejected these statement9
B
and declined to attach any value to them.
Section 11 was not
relied up<>n before us; but the other two sections were referred to
in an effort to have that evidence read. Section 157 of the Indian
Evidence Act lays down:
"157. Former statements of witness may be proved to
c
corroborate later testimony as to same fact:
Jn order to corroborate the testimony of i1 w;tness, any
former statement made by such witness
relating to the
same fact at or about the time when the fact took place,
or before any authority legally competent to investigate
the fact, may be proved."
D
Two circumstances, which are alternative, are conditions precedent to the proof of earlier statements under this sect'on. The first
is that the statements must have been made at or about the time
when a fact took place. The fact here is the authority said to have
been given by the husband in· 1901. The statements were made
on December 18, 1928, 27 years after the event. They cannot be ll
said to have been made "at or about the time when the fact took
place". Further, as rightly pointed 'out b)j l;he High Court, the
Court of Wards was making an enquiry for the purpose of accordi11g its consent. It was not enquiring into the fact of the giving of
authority as an 'authority legally competent'. That authority, as F
we have pointed out already, is the civil court for the civil court
alone can finally decide such a question. It can do so even after
the Court of Wards had reached a conclusion, and contrary to
that conclusion. Section 157 therefore cannot make the statements
·provable.
Mr. Agarwala next relies on s. 32(7) of the Indian Evidence
Act to introduce the earlier statements. That sub-sectiorr reads:
"32. Statements, written or verbal, of relevant facts
made by a person who is dead, or who cannot be. found,
or who has become incapable of giving
evidence,
or
· whose attendance cannot be procured without an amount
G
of delay or expense which under the
circumstances of
H
the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
*
*
*
*
'.7) When the statement is contained in any deed, will
or other document which relates to any such transaction
as is mentioned in s. 13. clause (a).
·
•
*
*
A
B
c
D
•
DWARKA NA1H v. LAL CHAND (Hiduyatullah, J.)
33
Clause (7) makes relevant statements made in deeds, w.ills arul
such other documents which relate to
transactions by which a
right or custom in question "was created, claimed, modified, recognised, asserted or denied" (to add the words of cl. (a) of s. 13).
The clause does not allow introduction of parole evidence, see
Field on the Law of Evidence 8th Edn. p. 202. Such parole evidence may be relevant under cl. (5) of s. 32, but that is not relied
upon. We questioned Mr. Agarwala whether he wished to rely
upon clanse (5), but he did not wish to put his case under that
clause and we need not therefore consider the application of that
clause. We think Mr. Agarwala is right in taking this course, because cl. (5) requires that such a statement should have been made
before the quest'on in dispute was raised. The statements in question were definiuely made after the question in dispute in the suit
had already arisen, because one enquiry had already been made
by Mr. Knox and the statements now relied upon were made in
the second enquiry before Mr. Thompson.
Mr. Agarwala next wishes to use the statements made by
Gaya Prasad on March 14, 1926 "Ex. 72"; but that clearly is not
admissible, because when it was made in the suit, Gaya Prasad
was being examined as a party before issues were framed. In fairness to Mr. Agarwala it may be mentioned that he did not press
the point after noticing the above fact.
Mr. Agarwala conten'.!s lastly that as Dwarka Nath was
adopted on Nm·ember, 28. 1929 and the present suit was filed on
May 21, 1945, after more than 15 years, and as during this time.
Dwarka Nath had been cons'dered by everyone to be legally and
validly adopted the suit ought to have been dismissed. It may be
pointed out that Panneshwar Dayal never accepted the adoption
of Dwarka Nath. He had filed an earlier suit and questioned the
competence of Rani Gomti Bibi to make the adoption of B'ndeshwari Prasad. In that suit he had denied that Rai Pratap Chand
had given authority to his wife to make the adoption of a son
after h's death. He consistently denied the validity of the second
adoption and in these circumstances, it cannot be said that he was
I
concluded by any rule of law from questioning the adoption of
Dwarka Nath after Rani Gomti Bibi's death.
On an examination of all the legal pleas against the judgment
of the High Court we are satisfied that none of them avails the appellant. In so far as the question of fact are concerned, we have
11
already stated that we do not propose to go into them as 1t did
not appear to us that there was any legal reason for reaching a
different conclusion.
We accordingly dismiss the appeal but order that the parties
shall bear their own costs throughout.
Appeal dismissed.