The consent of a living wife without disability is a pre-condition for a legally valid adoption under Section 7 of the Hindu Adoption and Maintenance Act, 1956.

1. - For the reasons mentioned in the application for early hearing, the application is allowed and the matter heard.

2. This civil misc. appeal under Section 384 of the Indian Succession Act, 1925 (hereinafter 'the Act of 1925') has been fried against the order dated 17.4.2002 passed by the District Judge, Sikar (hereinafter 'the Court below') on the appellant-applicant's (hereinafter 'the applicant') action taken under Section 372 of the Act of 1925 whereby a certificate of succession was sought alongwith Smt. Santara the respondent non-applicant (hereinafter 'the non-applicant') in respect of the movable properties of the deceased Bhanwar Lal. By the impugned order dated 17.4.2002 the Court below held that the applicant did not have even an iota of case to the succession certificate as claimed.

3. The applicant's case was that he was the adoptive son of one Bhaguram-an employee of the Indian Railway who had died in harness on 13.4.1996. It was stated that the deceased Bhaguram had a natural born daughter Smt. Santara through his wife Smt. Prabhati Devi. Prabhati had however left Bhaguram about 20 years prior to his death and her whereabouts since not known. It was prayed that consequently a certificate of succession be issued in favour of the applicant Bhanwar Lal himself and Smt. Prabhati Devi holding each entitled to 50% share in the movable assets of the deceased. The Officers of the Northern Railway, Bikanet were impleaded as other defendants in the proceedings apparently for the reason that they were holding the retiral benefits of the deceased Bhaguram.

4. The application was opposed by Smt. Santara, the natural daughter of the deceased Bhaguram. The wife of late Bhaguram and the mother of Smt. Santara was impleaded on her application under Order 1, Rule 10 C.P.C. also as a non-applicant alongwith others already on record. The case of the applicants Smt. Santara and Prabhati before the Trial Court was that Smt. Prabhati Devi had never left her husband nor was otherwise divorced but had at all times been in the company of her husband till his death when he was posted at Hanumangarh. It was further stated that the case set up by the applicant about his having been adopted Bhanwar Lal was absolutely false and that he had never been adopted. It was stated that Smt. Santara, the natural daughter of the deceased Bhaguram and his nominee in the records of the Railway was alone entitled to be issued the succession on certificate.

5. On the basis of pleadings of the pleadings of the parties, the Trial Court framed three issues which are reproduced hereunder :

"1- vk;k vkosnd e`rd Hkkxqjke dk nRrd iq= gksus ds dkj.k foHkkx esa mlds uke tek isa'ku] xszP;qVh] cksul izkIr djus dk vf/kdkjh gksus ls okafNr mRrjkf/kdkj izek.k i= izkIr djus dk vf/kdkjh gS\

2- vk;k vkosnd la[;k 1 ukWfeuh gksus ds dkj.k foHkkx esa e`rd fd tek isa'ku] xzspqVh] cksul fd jkf'k izkIr djus ds vf/kdkfj.kh gS\

3- vuqrks"k\"

6. Addressing issue No. 1 the learned Trial Court found that no evidence of any probative worth had been laid before the Trial Court to prove that Smt. Prabhati Devi was divorced in accordance with law from Bhaguram. The claim of adoption of the applicant by Bhaguram could not be sustained for the reason that even the witnesses for the applicant had admitted that at the time of purported adoption of the applicant Bhanwar Lal by Bhaguram his wife was absent. The Trial Court held that consequently the adoption claimed was invalid and hit by provisions of Section 7 of the Hindu Adoption and Maintenance Act, 1956 ;hereinafter 'the Act of 1956') which mandates the consent of a living wife without disability as a pre-condition of a legally valid adoption. The Trial Court therefore held that the applicant Bhanwar Lal was not entitled to the succession certificate. It was accordingly ordered. Succession certificate was instead issued in favour of Smt. Santara alone. Hence this misc. appeal under Section 384 of the let of 1925.

7. Counsel for the