Consent from the spouse is mandatory for a valid adoption under the Hindu Adoptions and Maintenance Act, and tacit consent may be inferred from participation in the adoption ceremony.

JUDGMENT :

C.M. JOSHI, J.

The plaintiff in O.S.No.154/1989 who was non-suited by the judgment dated 29.06.1991 and whose appeal in R.A.No.79/1991 came to be dismissed by the judgment dated11.02.2011 is before this Court in second appeal.

2. The factual matrix as is necessary for the purpose of this appeal is as below:

a. Plaintiff is the wife of late Basappa. Defendant No.1 is the second wife of Basappa as contended by the plaintiff. Defendant No.2 claims himself to be the adopted son of Basappa under a adoption deed dated 19.04.1974.

b. The suit schedule properties are the properties held by the deceased-Basappa comprising of two agricultural lands in R.S.No.26 and 253/2/2, and the house property situated at Nagavanda village in Hirekerur Taluk.

c. The plaintiff contends that she is the wife of Basappa. The suit schedule properties were owned by the said Basappa. He died on 18.01.1978. The plaintiff claims that she is the only legal heir of the deceased Basappa and the alleged adoption claimed by defendant No.2 is non est and void, since the consent of the plaintiff was not taken by the said Basappa, as required under Section 7 of the Hindu Adoptions and Maintenance Act, 1956 (for short ‘the Act’).

d. The plaintiff contends that the deceased-Basappa had executed a deed of maintenance in favour of the plaintiff on 15.07.1974 and he had given possession of 2 acres 20 guntas of land to the plaintiff to be enjoyed till her lifetime.

e. After death of Basappa, plaintiff gave a varadi to the Village Accountant to enter her name in the revenue records pertaining to the suit property. A revenue dispute was raised and the appeal ended in a finding that it would be subject to the final outcome of the present suit.

3. In response to the summons issued by the Trial Court, defendants No.1 and 2 appeared through their counsels and filed a joint written statement. Defendants No.1 and 2 contended that defendant No.1 is the second wife of Basappa and since she also did not bear any child, Basappa had adopted defendant No.2 as his son according to the customs prevailing in their community. It was contended that defendant No.2 was adopted under a registered adoption deed dated 19.04.1974 and after such adoption, there were differences between the plaintiff and the deceased Basappa. They contend that the adoption of defendant No.2 by Basappa is valid and legal and therefore, defendant No.2 is also entitled for share in the property as a legal heir of the deceased- Basappa.

4. On the basis of the above contentions, the following issues were framed by the Trial Court.

“ISSUES

1. Whether the Plaintiff proves that she is the absolute owner of the suit schedule properties?

2. Whether defendant No.1 proves that she is legally wedded wife of deceased- Basappa?

3. Whether defts. prove that defendant No.2 is the legally adopted son of deceased- Basappa?

4. Whether Plff. proves that she is in lawful possession of all the suit schedule properties?

5. Whether the Plff. prove the cause of action for this suit?

6. What decree or order?

Addl. Issue No.1:

Whether Plff. No.1(a) has got locus-standi to maintain and continue this suit?”

5. Plaintiff No.1 died during the pendency of the suit and the adopted son of the plaintiff (who was adopted subsequent to death of Basappa) has come on record as the legal representative of the plaintiff.

6. On behalf of plaintiff No.1(a), his brother deposed as PW.1 and examined eleven witnesses as PW.2 to PW.12. Exs.P.1 to P.13 were marked. Defendant No.1 was examined as DW.1 and six witnesses were examined as DW.2 to DW.7. Exs.D.1 to D.73 were marked.

7. After hearing the arguments by both sides, the Trial Court dismissed the suit by holdi