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TMI Blog2011 (1) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... e of convenience, we shall refer to them by their names and not by the description given in the suit and the appeals. 3. The pleaded case of Ghisalal was that in Baisakh of Samvat 2016 (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 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 transferred lands of villages Jeeran, Arnya 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 deprive him of his right in the ancestral properties and that even in his capacity as karta of the family, Gopalji could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.73 has no effect on the plaintiff? 5) Whether the court fee has been properly paid? 6) Whether the statement made by the defendant in Suit No. 76 of 1964 is binding on the defendants as per the law of estopple? 7) Whether the lands mentioned in Paragraph 6 of the reply had been gifted on 29.11.1944 and what is its effect? 8) Relief and expenses. 8. After considering the pleadings and evidence produced by the parties, the trial Court held as under: (1) The suit properties were ancestral properties of Gopalji. (2) Ghisalal was validly adopted son of Gopalji and the consent of Dhapubai can be presumed from her presence in the adoption ceremonies. (3) Gift Deeds dated 22.10.1966 executed by Gopalji in favour of Dhapubai and Sale Deed dated 19.1.1973 executed by her in favour of Sunderbai were invalid. (4) Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai was invalid. (5) Gift Deed dated 29.11.1944 executed by Gopalji in favour of Dhapubai was not valid inasmuch as there was no acceptance by the donee and alienation of ancestral property by Gopalji in favour of his wife was not for a pious purpose. 9. Dhapubai challenged the judgment and decree of the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ancestral is perverse? 13. The learned Single Judge confirmed the finding recorded by the two Courts on the legality of Ghisalal's adoption 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. The learned Single Judge further held that the lower appellate Court 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 is directed that each of the party is entitled to half share in the agricultural lands of village Jeeran, Kuchrod and Arnya 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 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 plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten statement in the suit filed by Ghisalal. Shri Jain also referred to the averments contained in the written statement filed by Gopalji in Civil Suit No.76A of 1964 - Pannalal v. Ghisalal and another wherein he admitted the adoption of Ghisalal and argued that the contrary assertion made in the written statement filed in the suit of Ghisalal was rightly discarded by the Courts below and the High Court. Learned counsel further argued that after his adoption Ghisalal became a coparcener in the family of Gopalji and was entitled to half share in the properties inherited by his adoptive father and, as such, the finding recorded by the lower appellate Court and the High Court on his locus to challenge Gift Deed dated 29.11.1944, which adversely affected his right in the suit properties is legally unsustainable. Learned counsel submitted that even though no specific prayer was made in the suit for setting aside Gift Deed dated 29.11.1944, the trial Court had rightly declared the same to be invalid, ineffective and inoperative because Ghisalal had challenged validity thereof by amending the plaint and the parties had adduced evidence knowing fully well that the legality of the gift dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mandatory and unless the consent of the wife is proved, the adoption cannot be treated valid. In support of this argument, Shri Majithia placed reliance on the judgments of this Court in Kashibai v. Parwatibai (1995) 6 SCC 213 and Brajendra Singh v. State of M.P. (2008) 13 SCC 161. Learned counsel also assailed the High Court's finding on the legality of the Will executed by Gopalji in favour of Dhapubai and argued that examination of one attesting witness was sufficient to prove execution of the Will. Learned counsel supported the impugned judgment insofar as it relates to Gift Deed dated 29.11.1944 and argued that even if this Court was to approve the finding recorded by the Courts below on the issue of Ghisalal's adoption, his challenge to Gift Deed dated 29.11.1944 should be treated as misconceived and negatived because the adoption cannot relate back to any date prior to 1959. 16. We have considered the respective submissions and gone through the written arguments filed by the learned counsel. For deciding the question whether the adoption of Ghisalal by Gopalji was valid, it will be useful to notice the relevant provisions of the 1956 Act. The same read as under: "6. Requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to registered documents relating to adoption. - Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved." 17. Section 6 reproduced above enumerates the requisites of a valid adoption. It 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 19. After India became a sovereign, democratic republic, this position has undergone a sea change. The old Hindu Law has been 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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." (emphasis supplied) 22. In Brajendra Singh v. State of M.P. (supra), the Court considered the scope of Sections 7 and 8(c) of the 1956 Act in the backdrop of the claim made by the appellant that he was validly adopted son of Mishri Bai, who was married to Padam Singh but was forced to live with her parents. In 1970, Mishri Bai claims to have adopted the appellant. After some time, she was served with a notice under Section 10 of the M.P. Ceiling on Agricultural Holdings Act, 1960 indicating that her holding of agricultural land was more than the prescribed limit. In her reply, Mishri Bai claimed that she and her adopted son were entitled to retain 54 acres land. The competent authority did not accept her claim. Thereupon, Mishri Bai filed suit for declaration that the appellant is her adopted son. During the pendency of the suit, she execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to interfere with the concurrent finding recorded by the two Courts. The consideration of this issue deserves to be prefaced with an observation that 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. 24. A careful scrutiny of the record reveals that in the suit filed by him, Ghisalal had pleaded that Gopalji had taken him in adoption in Baisakh of Samvat 2016 and the deed of adoption was executed and got registered on 25.6.1964 and that Dhapubai had consented to the adoption. He challenged Gift Deeds 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 Sunderbai in respect of one parcel of land. Later on, he amended the plaint and pleaded that Gift Deed da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nlal, brother Ramniwas and Dhapubai had come along with him but he does 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 his cross-examination, Omkar Lal stated that he does not know whether Ghisalal was taken to Dhapubai. He further stated that in his presence no talk had taken place with Dhapubai. In his cross-examination, Devram stated that Dhapubai was also there and she was sitting with the other ladies. Similarly, Ramniwas spoke about presence of Dhapubai by stating that she was sitting by the side of the platform along with other ladies. 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 does not know whether Gopalji had gone to tehsil and got the registry of adoption deed. In paragraph 11 of the cross-examination, she expressed ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is essential. There is no such provision in the aforesaid Hindu Adoption Act. It is proved by the circumstantial evidence that the appellant Dhapubai had given her consent to Gopal to adopt Ghisalal as his son. The brothers of Ghisalal i.e. Ramnivas (P.W.4), Omkarlal, PW-2 and Devram, PW-3 in their statements have accepted that customary function of adoption was held and in that function the appellant Dhapubai herself was present." (emphasis supplied) 29. Though, the trial Court and the lower appellate Court did not advert to Section 7 of the 1956 Act, the learned Single Judge referred to that section and the judgment of the Madhya Pradesh High Court in Moolchand Chhotalal v. Amritbai Manji Khoda Bhai and others (1976) MPLJ 382 and held that the consent of wife can be inferred from the circumstances. The learned Single Judge noted that the adoption deed was duly registered and held that in view of Section 16 of the 1956 Act, a presumption can be raised that the adoption had been made after complying with the relevant provisions. The learned Single Judge then observed that Dhapubai had not challenged the correctness, authenticity and validity of the adoption deed till the filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 33. 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 Ramchander Sharma, Advocate and his clerk PW-8 Imdad Ali 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 shows 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 has been given why Kishanlal was not examined despite the fact that he was not only acti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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