2011 (1) TMI 1321 - SC - Indian Laws

Whether mere presence of Dhapubai in the ceremonies performed by her husband Gopalji for adoption of Ghisalal amounted to her consent as contemplated by the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956?

Issues:
1. Whether the presence of Dhapubai in the adoption ceremonies amounted to her consent under Section 7 of the Hindu Adoptions and Maintenance Act, 1956.
2. The validity of the adoption of Ghisalal by Gopalji.
3. The validity of the Gift Deeds dated 22.10.1966 and 29.11.1944, the Will dated 27.10.1975, and the Sale Deed dated 19.1.1973.
4. The respective shares of the parties in the suit properties.

Detailed Analysis:

Issue 1: Consent of Dhapubai under Section 7 of the Hindu Adoptions and Maintenance Act, 1956
The primary question was whether Dhapubai's presence at the adoption ceremonies could be interpreted as her consent as required by the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956. The trial court, lower appellate court, and the High Court presumed her consent based on her presence. However, the Supreme Court held that mere presence does not equate to consent. The Court emphasized that the consent of the wife should be explicit, either in writing or through active participation in the adoption ceremonies, which was not evidenced in this case. The Court stated, "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."

Issue 2: Validity of the Adoption of Ghisalal by Gopalji
The trial court and lower appellate court found the adoption valid, presuming Dhapubai's consent from her presence. The High Court upheld this finding. However, the Supreme Court found this reasoning flawed, noting that Dhapubai's role was merely that of a spectator and not an active participant. The Court observed, "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." The Supreme Court concluded that the adoption was invalid due to the lack of Dhapubai's explicit consent.

Issue 3: Validity of Gift Deeds, Will, and Sale Deed
The trial court invalidated the Gift Deeds dated 22.10.1966 and 29.11.1944, the Will dated 27.10.1975, and the Sale Deed dated 19.1.1973. The lower appellate court upheld the invalidation of the 1966 Gift Deeds but reversed the findings on the 1944 Gift Deed and the 1975 Will. The High Court partially agreed with the lower appellate court. The Supreme Court, however, held that since the adoption was invalid, Ghisalal had no standing to challenge these documents. The Court stated, "As a corollary, it is held that the suit filed by Ghisalal for grant of a decree that he is entitled to one half share in the properties of Gopalji was not maintainable."

Issue 4: Respective Shares in the Suit Properties
The High Court had directed that each party was entitled to half share in the agricultural lands and house property, barring the lands given under the 1944 Gift Deed. The Supreme Court set aside these directions, invalidating the adoption and thereby nullifying Ghisalal's claim to the properties. The Court concluded, "The judgments and decrees passed by the trial Court, the lower appellate Court and the High Court are set aside and the suit filed by Ghisalal is dismissed."

Conclusion:
The Supreme Court allowed the appeals, set aside the judgments of the trial court, lower appellate court, and High Court, and dismissed Ghisalal's suit. The Court held that Dhapubai's mere presence at the adoption ceremonies did not amount to consent, rendering the adoption invalid. Consequently, Ghisalal had no standing to challenge the Gift Deeds, Will, and Sale Deed, and his claim to the properties was dismissed.

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