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2011 (1) Supreme 297
SUPREME COURT OF INDIA
G.S. Singhvi and Asok Kumar Ganguly, JJ.
Ghisalal — Appellant
versus
Dhapubai (Dead) by L.Rs. and others — Respondents
Civil Appeal Nos.6373-6374 of 2002
with
Dhapubai (Dead) Widow of Gopalji through L.Rs. — Appellants
versus
Ghisalal and others — Respondents
Civil Appeal Nos. 6375 - 6376 of 2002.
Decided on : 12-1-2011
(b) Administration of Justice – Judicial Review – Concurrent findings of fact recorded by courts below should not be interfered with unless they are perverse – Particularly so when such findings approved by High Court. (Para 23)
(c) Hindu Adoptions and Maintenance Act, 1956 – Section 7 – Wife neither signatory to the deed of adoption nor aware of it – Not participating in the ceremonies – Simply sitting as mute spectator – Her consent to the adoption wrongly presumed by the courts below. (Paras 30 to 33)
(d) Administration of Justice – Judicial Review – Concurrent findings of courts below including the High Court perverse being based on nom evidence and surmises and conjectures – Not sustainable. (Para 34)
Facts of the case:
The arising in this appeal is whether mere presence of the wife in the ceremonies performed by her husband for adoption of a child can amount to her consent.
Finding of the Court:
Findings of courts below are perverse.
Result : Appeals allowed.
Key Points: - The judgment centers on whether the consent of Dhapubai, as wife, to the adoption of Ghisalal by Gopalji was validly given under Section 7 of the Hindu Adoptions and Maintenance Act, 1956, and whether mere presence at adoption ceremonies constitutes consent; the Court holds presence cannot be treated as consent. (!) (!) (!) - The case discusses whether the adoption was valid and whether Dhapubai’s consent is required and proved, and if not, whether the adoptive status of Ghisalal affects rights in the family and related gifts/will; the Court reverses lower findings and holds consent not proven. (!) (!) (!) - The Supreme Court sets out the purposive interpretation of Section 7, clarifying that consent must be in writing or demonstrated by affirmative action, not by silence or mere presence; adoption without wife’s consent is void. (!) (!) - The Court finds the concurrent findings on the validity of adoption and related transferrals/gift deeds to be perverse due to lack of proper evidence, and sets aside the decrees, dismissing Ghisalal’s suit for partition. (!) (!) - The judgment emphasizes that a wife’s consent is mandatory and cannot be inferred from conduct or non-challenge, aligning with Kashibai v. Parwatibai and related precedents. (!) (!) (!) - The final outcome is that Civil Appeals 6375-6376 of 2002 are allowed; the suit by Ghisalal is dismissed; corresponding appeals are disposed of with costs. (!)
JUDGMENT
G.S. Singhvi, J. —
1. 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 (for short, ‘the 1956 Act’) is the main question which arises for consideration in these appeals filed against judgment dated 12.9.2000 of the learned Single Judge of the Madhya Pradesh High Court, Indore Bench whereby he partly allowed the second appeals filed by the parties and modified the decree passed by the lower appellate Court, which had substantially reversed the decree passed by the trial Court in a suit for declaration, partition and possession.
2. Although, Gopalji, Dhapubai and Sunderbai who were impleaded as defendant Nos.1 to 3 in Suit No.54A of 1973 filed by Ghisalal died during the pendency of litigation, for the sake 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 not have gifted more than 1/3rd of his share. On the basis of these pleadings, Ghisalal prayed that a decree of partition be passed and he be given one half share in the suit properties. He further prayed that Gopalji may be directed to give an account of the agricultural produce and pay him his share.
4. In the written statement filed by him, Gopalji pleaded that he had not adopted Ghisalal and no ceremony was performed; that the so called adoption deed was obtained by playing fraud and the same was not binding on him; that the suit properties were not ancestral and that he was entitled to execute gift deeds in favour of his wife. In her separate written statement, Dhapubai also denied the factum of the adoption of Ghisalal by Gopalji and claimed that she had not given consent for the same. She then pleaded that if by taking advantage of the simplicity of Gopalji, the plaintiff obtained some writing or deed, the same is not binding on them. She further pleaded that the gift deeds were valid and Ghisalal has no right to challenge the alienation of property by her husband.
5. After filing of the written statement, Dhapubai sought and was granted leave to amend the written statement whereby she pleaded that Gopalji had earlier executed registered Gift Deed dated 29.11.1944 in her favour in respect of the lands comprised in Survey Nos.2097, 2763 and 3170 (old Survey Nos.2856, 3042/2 and 3528) of village Jeeran and she was in possession of the same. As a sequel to this, Ghisalal amended the plaint and pleaded that Gift Deed dated 29.11.1944 was not valid because the land of village Jeeran was not capable of being gifted and, in any case, the same was not binding on him. He further pleaded that Gift Deed dated 29.11.1944 was not acted upon inasmuch as the property had not been transferred in the name of Dhapubai.
6. During the pendency of the suit, Gopalji executed registered
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