REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6373-6374 OF 2002

Ghisalal … Appellant

Versus

Dhapubai (Dead) by L.Rs. and others … Respondents

With

CIVIL APPEAL NOS. 6375 - 6376 OF 2002.

Dhapubai (Dead) Widow of Gopalji  … Appellants through L.Rs.

Versus

Ghisalal and others   … Respondents

J  U  D  G  M  E  N  T

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  

2

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  

3

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  Will  

dated  27.10.1975  purporting  to  bequeath  the  suit  properties  to  his  wife  

Dhapubai.  After some time, Gopalji died.

4

7. In the light of the pleadings of the parties, the trial Court framed the  

following issues:

1) Whether the suit  properties  mentioned in Para-6 of the  plaint are the property of Joint Hindu Family?

2) Whether  the  plaintiff  is  the  legally  adopted  son  of  defendant No.1 and 2?

3) Whether the Gift Deed dated 22.10.66 is illegal and void?

4) Whether the sale deed dated 19.1.73 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.

5

(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 trial Court by  

filing an appeal under Section 96 read with Order XLI Rule 1 of the Code of  

Civil Procedure.  The lower appellate Court agreed with the trial Court that  

the suit properties were ancestral; that the adoption of Ghisalal by Gopalji  

was valid and that the gift deeds executed in favour of Dhapubai were not  

valid.  However, the findings recorded on the legality of Gift Deed dated  

29.11.1944 and Will dated 27.10.1975 (both executed by Gopalji in favour  

of Dhapubai) were set aside and it was declared that Ghisalal is entitled to  

1/3rd share in the suit properties except the land covered by Gift Deed dated  

29.11.1944.  The lower appellate Court also directed that whole of the land  

6

situated at village Kuchrod may be given to Ghisalal as his 1/3rd share so that  

there may not be any dispute between the parties in future.

10. Both, Ghisalal and Dhapubai challenged the judgment of the lower  

appellate Court by filing Second Appeal Nos.25 of 1978 and 61 of 1978.  

During the pendency of the second appeals, Dhapubai died and her legal  

representatives were brought on record.   

11. While admitting the second appeal filed by Ghisalal, the High Court  

framed the following substantial questions of law:

(1) What  would  be  the  respective  shares  of  the  plaintiff- appellant  and  defendant  No.1  Dhapubai  in  the  suit  properties  according to law in case the Will  Ex.D.2 is  held to have been proved and what would be their shares  in case it were to be held otherwise?

(2) Whether the execution and attestation of the Will Ex.D/2  have been proved in accordance with law?

(3) Whether there is legal evidence to prove the gift of the  properties  comprised in  Ex.D/1 by  Gopal  in  favour  of  Dhapubai?

(4) Whether the lower Court has acted without jurisdiction or  erroneously  in  giving  directions  with  respect  to  the  apportionment of the plaintiff’s share in the suit land?

12. In the second appeal filed by Dhapubai, the High Court framed the  

following substantial questions of law:

7

(1) Whether there is any legal evidence on record to prove  the consent of Mother Dhapubai as required by Section 7 of the  Hindu  Adoption  and  Maintenance  Act,  1956  for  the  valid  adoption of plaintiff Ghisalal?

(2) Whether  the  court  below had  jurisdiction  to  impose  a  condition that Dhapubai will not get the lands situated in village  Kuchhdod?

(3) Whether  the  finding  of  the  Court  below  that  suit  properties are 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  

8

back to the hotchpot.  If the plaintiff agrees that land survey  No.347 admeasuring 0.375 hectare of village Kuchrod can be  given to the defendant No.3 Sundarbai then the said property  can be given to her and that much of the property shall stand  reduced from the share of Dhapubai, but if the plaintiff does not  agree  to  it  then  survey  No.947  of  village  Kuchrod  shall  be  brought to the hotchpot and the property shall be partitioned in  accordance  with  the  provisions  of  law.   Sundabai  shall  be  entitled to 0.375 hectares of land from the share of Dhapubai  which property could be given to her may be mutually settled  and agreed between the successors of Dhapubai and Sundarbai.  On  such  an  agreement  particular  land  falling  in  share  of  Dhapubai  may  be  given  to  Sundarbai  but  in  case  such  an  agreement cannot be arrived at then the officer competent to  partition the property shall give 0.375 hectare land to Sundarbai  from the share of Dhapubai, after firstly effecting the partition  between Ghisalal and successors of Dhapubai.  The parties shall  be at liberty to make an application to the trial court to refer the  matter  to  the  Collector  for  effecting  partition  or  in  the  alternative  with  the  permission  of  the  trial  court  the  party/parties  may make necessary  application  for  partition to  the Collector or the competent Officer.  Regarding partition of  the house the party/parties may make an application to the trial  Court  for  appointment  of  Commissioner.   The  terms  of  the  commission and the fees of the Commissioner shall be fixed by  the trial court.”

14. Shri Puneet Jain, learned counsel for Ghisalal argued that Dhapubai’s  

challenge to the adoption of Ghisalal by Gopalji was rightly negatived by the  

trial Court, the lower appellate Court and the High Court and in exercise of  

power under Article  136 of the Constitution,  this  Court is not entitled to  

interfere with the concurrent finding of fact.  He pointed out that the trial  

Court and the lower appellate Court had concurrently held that Ghisalal was  

9

taken in adoption strictly in accordance with law and a registered deed of  

adoption was also executed by the natural and adoptive fathers and argued  

that  the  High  Court  rightly  declined  to  upset  the  said  finding.   Learned  

counsel emphasized that the consent of Dhapubai was rightly presumed by  

the Courts below because she was present in the ceremonies of adoption and  

did not question the adoption till the stage of filing written 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  

10

challenged  validity  thereof  by  amending  the  plaint  and  the  parties  had  

adduced evidence knowing fully well that the legality of the gift  deed of  

1944 is subject matter of scrutiny by the Court.  Shri Jain submitted that in  

the  amended  written  statement,  Dhapubai  had  pleaded  Gift  Deed  dated  

29.11.1944 as a weapon of defence with the sole object of defeating the right  

acquired by Ghisalal by virtue of his adoption and, therefore, the trial Court  

had  rightly  annulled  the  same  on  the  ground  of  non  fulfillment  of  the  

essentials of a valid gift and the lower appellate Court and the High Court  

committed serious error by invoking Section 12 of the 1956 Act and the bar  

of limitation for the purpose of non suiting him. Learned counsel relied upon  

the judgment of this Court in K. Laxmanan v. Thekkayil Padmini (2009) 1  

SCC  354  and  argued  that  the  lower  appellate  Court  seriously  erred  in  

reversing the finding and conclusion recorded by the trial Court on the issue  

of validity of Gift Deed dated 29.11.1944 ignoring that the burden to prove  

the competence of Gopalji to execute the gift deed in respect of a portion of  

the suit property was on Dhapubai, which she failed to discharge.  Learned  

counsel also argued that gift of the joint family property was nullity and the  

same could be challenged at any time.  Shri Jain referred to the judgment of  

this Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2  

SCC  91  and  submitted  that  the  trial  Court  and  the  High  Court  rightly  

11

invalidated the Will executed by Gopalji in favour of Dhapubai.     

15. Shri Nikhil Majithia, learned counsel for Dhapubai argued that even  

though all the Courts concurrently held that Ghisalal was validly adopted by  

Gopalji, the finding recorded on this issue is liable to be set aside because  

his client had not given consent for the adoption.  Learned counsel submitted  

that the plaint filed by Ghisalal was totally bereft of the material particulars  

regarding the date, time and place of adoption as also the crucial ceremony  

of give and take and the Courts below as well as the High Court committed  

serious error by recording a finding that the adoption was validly made and  

that too by presuming the consent of Dhapubai. Learned counsel emphasized  

that  mere  presence  of  Dhapubai  at  the  place  where  the  ceremonies  of  

adoption  are  said  to  have  been  performed  could  not  be  made  basis  for  

assuming that she had willingly consented to the adoption of Ghisalal by  

Gopalji.   He  submitted  that  the  consent  contemplated  by  the  proviso  to  

Section 7 of the 1956 Act is 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  

12

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. Requisites of a valid adoption. – No adoption shall be  valid unless –  

(i) the person adopting has the capacity, and also the  right, to take in adoption;

(ii) the person giving in adoption has the capacity to  do so;

(iii) the  person  adopted  is  capable  of  being  taken  in  adoption; and

(iv) the adoption is made in compliance with the other  conditions mentioned in this Chapter.

7. Capacity of a male Hindu to take in adoption. – Any  male Hindu who is of sound mind and is not a minor has the  capacity to take a son or a daughter in adoption:

13

Provided that, if he has a wife living, he shall not adopt except  with the consent of his wife unless the wife has completely and  finally renounced the world or has ceased to be a Hindu or has  been  declared  by  a  court  of  competent  jurisdiction  to  be  of  unsound mind.

Explanation. – If a person has more than one wife living at the  time  of  adoption,  the  consent  of  all  the  wives  is  necessary  unless the consent of any one of them is unnecessary for any of  the reasons specified in the preceding proviso.

8. Capacity of a female Hindu to take in adoption. – Any  female Hindu –  

(a) who is of sound mind,

(b) who is not a minor, and

(c) who is not married, or if married, whose marriage  has  been  dissolved  or  whose  husband  is  dead  or  has  completely and finally renounced the world or has ceased  to  be  a  Hindu  or  has  been  declared  by  a  Court  of  competent jurisdiction to be of unsound mind,

has the capacity to take a son or daughter in adoption.

12. Effects of adoption. – An adopted child shall be deemed  to be the child of his or her adoptive father or mother for all  purposes with effect  from the date of the adoption and from  such date all the ties of the child in the family of his or her birth  shall be deemed to be severed and replaced by those created by  the adoption in the adoptive family:

Provided that –  

(a) the child cannot marry any person whom he or she  could not have married if he or she had continued  in the family of his or her birth;

(b) any  property  which  vested  in  the  adopted  child  before the adoption shall continue to vest in such  person subject to the obligations, if any, attaching  

14

to  the  ownership of  such property,  including the  obligation to maintain relatives in the family of his  or her birth;

(c) the  adopted  child  shall  not  divest  any person of  any estate which vested in him or her before the  adoption.

16. Presumption  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 completely and  

finally renounced the world or her having ceased to be a Hindu or she has  

15

been declared by a court of competent jurisdiction to be of unsound mind.  

The explanation appended to Section 7 lays down that if a person has more  

than one wife living at the time of adoption, then the consent of all the wives  

is sine qua non for a valid adoption unless either of them suffers from any of  

the disabilities specified in the proviso to Section 7.  Section 8 enumerates  

the  conditions,  which must  be satisfied  for  adoption by a  female  Hindu.  

Section 12 deals with effects of adoption.  It declares that from the date of  

the adoption, an adopted child is deemed to be a child of his/her adoptive  

father or mother for all purposes and his ties in the family of his or her birth  

shall  stand severed and replaced by those created in the adoptive family.  

Proviso (a) to this section contains a restriction on the marriage of adopted  

child with a person to whom he or she could not have married if he or she  

had continued in the family of his or her birth.  Clause (b) of the proviso  

saves the vested right of the adopted child in the property subject  to the  

obligations, if any, attached to the ownership of such property, including the  

obligation to maintain relatives in the family of his or her birth.  Likewise,  

clause (c) to the proviso lays down that the adopted child shall not divest any  

person of any estate vested in him or her before the date of adoption. Section  

16  which embodies  a  rule  of  presumption lays  down that  whenever  any  

document registered under any law for the time being in force evidencing  

16

adoption and signed by the person giving and person taking the child in  

adoption  is  produced  before  any  court,  then  it  shall  presume  that  the  

adoption  has  been  made  after  complying  with  the  provisions  of  the  Act  

unless proved otherwise.

18. In Indian society, a male spouse enjoyed the position of dominance  

for centuries together.  This was particularly so in Hindu families.  Under the  

old Hindu Law, a Hindu male had an absolute right to adopt a male child  

and his wife did not have the locus to question his right or to object to the  

adoption.  A wife could adopt a son to her husband but she could not do so  

during her husband’s lifetime without his express consent.  After his death,  

she  could  adopt  a  son  to  him,  in  certain  parts  of  India,  only  if  he  had  

expressly authorized her to do 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.

17

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 to the sons and daughters  

in  the  matter  of  succession,  it  was  only  logical  that  the  fundamental  

guarantee of equality of a status and equality before law is recognized in the  

matter of adoption. The 1956 Act now provides for adoption of boys as well  

as girls.  By virtue of the proviso to Section 7, the consent of wife has been  

made a condition precedent for adoption by a male Hindu.  The mandatory  

requirement of the wife’s consent enables her to participate in the decision  

making process which vitally affects the family.  If the wife finds that the  

choice of the person to be adopted by the husband is not appropriate or is not  

in the interest of the family then she can veto his discretion.  A female Hindu  

who is of a sound mind and has completed the age of eighteen years can also  

18

take a son or daughter in adoption to herself and in her own right.  A female  

Hindu who is unmarried or a widow or a divorcee can also adopt a son to  

herself,  in  her  own right,  provided  she  has  no  Hindu  daughter  or  son’s  

daughter  living  at  the  time  of  adoption  [Sections  8,  11(1)  and  11(2)].  

However, if she is married, a female Hindu cannot adopt a son or a daughter  

during the lifetime of her husband unless the husband is of unsound mind or  

has  renounced  the  world.   By  incorporating  the  requirement  of  wife’s  

consent in the proviso to Section 7 and by conferring independent right upon  

a female Hindu to adopt a child, Parliament has tried to achieve one of the  

facets  of  the goal  of equality  enshrined in the  Preamble and reflected in  

Article 14 read with Article 15 of the Constitution.   

20. The  term  ‘consent’  used  in  the  proviso  to  Section  7  and  the  

explanation appended thereto has not been defined in the Act.  Therefore,  

while interpreting these provisions, the Court shall have to keep in view the  

legal position obtaining before enactment of the 1956 Act, the object of the  

new legislation and apply the rule of purposive interpretation and if that is  

done, it would be reasonable to say that the consent of wife envisaged in the  

proviso  to  Section  7  should  either  be  in  writing  or  reflected  by  an  

affirmative/positive  act  voluntarily  and  willingly  done  by  her.   If  the  

19

adoption by a Hindu male becomes subject matter of challenge before the  

Court, the party supporting the adoption has to adduce evidence to prove  

that the same was done with the consent of his wife.  This can be done either  

by  producing  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  

20

the daughter from his second wife Parwati.  Defendant No.3, Purshottam son  

of  Meena  Bai  and  grandson  of  Lachiram.   The  plaintiffs  filed  suit  for  

separate  possession by partition of  a double  storey house,  open plot  and  

some agricultural lands.  The defendants contested the suit.  One of the pleas  

taken by them was that Purshottam son of Meena Bai had been adopted by  

deceased Lachiram vide registered deed of adoption dated 29.4.1970, who  

had also executed deed of Will in favour of the adopted son bequeathing the  

suit properties to him and thereby denying any right to the plaintiffs to claim  

partition.   The  trial  Court  decreed  the  suit  for  separate  possession  by  

partition by observing that the defendants have failed to prove the adoption  

of Purshottam by Lachiram and the execution of Will in his favour.  The  

High  Court  reversed  the  judgment  of  the  trial  Court  and  held  that  the  

defendants had succeeded in proving execution of the deed of adoption and  

the deed of Will in accordance of law and as such the plaintiffs were not  

entitled to any share in the suit properties.  On appeal, this Court reversed  

the judgment of the High Court and restored the decree passed by the trial  

Court.  On the issue of adoption of Purshottam, this Court observed:

“It  is no doubt true that after analysing the parties’ evidence  minutely the trial court took a definite view that the defendants  had  failed  to  establish  that  Plaintiff  1,  Defendant  1  and  deceased  Lachiram  had  taken  Defendant  3,  Purshottam  in  adoption. The trial court also recorded the finding that Plaintiff  

21

1 was not a party to the Deed of Adoption as Plaintiff 1 in her  evidence has specifically stated that she did not sign the Deed  of Adoption nor she consented for such adoption of Purshottam  and  for  that  reason  she  did  not  participate  in  any  adoption  proceedings. On these findings the trial court took the view that  the alleged adoption being against  the consent of Kashi  Bai,  Plaintiff  1,  it  was  not  valid  by  virtue  of  the  provisions  of  Section 7 of the Hindu Adoptions and Maintenance Act, 1956.  Section 7 of the Act provides that any male Hindu who is of  sound mind and is not a minor has the capacity to take a son or  a daughter in adoption. It provides that if he has a wife living,  he shall not adopt except with the consent of his wife.  In the  present case as seen from the evidence discussed by the trial  court it is abundantly clear that Plaintiff 1 Kashi 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  

22

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  executed  a  registered  Will  bequeathing  all  her  

properties in favour of the appellant.  The trial Court decreed the suit.  The  

first appellate Court dismissed the appeal preferred by the State of Madhya  

Pradesh.  The High Court allowed the second appeal and held that in the  

absence of the consent of Mishri Bai’s husband, adoption of the appellant  

cannot be treated as valid.  This Court noticed that language of Sections 7  

and 8 was different and observed:

“A married woman cannot adopt at all during the subsistence of  the  marriage  except  when  the  husband  has  completely  and  finally renounced the world or has ceased to be a Hindu or has  been  declared  by  a  court  of  competent  jurisdiction  to  be  of  unsound mind. If the husband is not under such disqualification,  the  wife  cannot  adopt  even with  the  consent  of  the  husband  whereas the husband can adopt with the consent of the wife.  This is clear from Section 7 of the Act. Proviso thereof makes it  clear that a male Hindu cannot adopt except with the consent of  the wife, unless the wife has completely and finally renounced  the world or has ceased to be a Hindu or has been declared by a  court  of  competent  jurisdiction  to  be of  unsound mind.  It  is  relevant to note that in the case of a male Hindu the consent of  the  wife  is  necessary  unless  the  other  contingency  exists.  Though  Section  8  is  almost  identical,  the  consent  of  the  husband is not provided for. The proviso to Section 7 imposes a  restriction in the right of male Hindu to take in adoption. In this  respect  the  Act  radically  departs  from the old  law where  no  such bar was laid down to the exercise of the right of a male  Hindu  to  adopt  oneself,  unless  he  dispossesses  the  requisite  

23

capacity.  As per  the proviso to Section 7 the  wife’s  consent  must be obtained prior to adoption and cannot be subsequent to  the  act  of  adoption.  The  proviso  lays  down  consent  as  a  condition  precedent  to  an  adoption  which  is  mandatory  and  adoption without wife’s consent would be void. Both proviso to  Sections 7 and 8(c) refer to certain circumstances which have  effect on the capacity to make an adoption.”

(emphasis supplied)

23. We shall now consider whether the trial Court and the lower appellate  

Court had rightly held that Ghisalal was validly adopted by Gopalji and he  

became coparcener in the family of adoptive father and the learned Single  

Judge of the High Court did not commit any error by declining 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

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 dated 29.11.1944 was invalid, inoperative and ineffective and  

did not affect his right to get share in the ancestral properties.  He alleged  

that the gift deeds were obtained by fraud.  Of course, he did not make a  

specific  prayer  for  invalidation  of  Gift  Deed  dated  29.11.1944.   In  her  

written statement, Dhapubai not only disputed the adoption of Ghisalal by  

Gopalji, but categorically averred that she had not consented to the adoption.  

She also questioned the locus standi of Ghisalal to challenge the gift deeds.  

25. In support of his claim that he had been adopted by Gopalji, Ghisalal  

appeared in the witness box as PW-1 and examined PW-2 Omkar Lal, PW-3  

Devram and PW-4 Ramniwas. He produced copy of the deed of adoption  

(Exhibit  P-1),  the plaint  (Exhibit  P-21) of  Suit  No.76A of 1964 filed by  

Pannalal in which he and Gopalji were impleaded as defendant Nos.1 and 2  

25

and copies of the written statements (Exhibits P-2 and P-3) filed in that suit.  

He also examined PW-5 Gumbhir Singh, PW-6 Hiralal, PW-7 Ramchander  

Sharma, PW-8 Imdad Ali, PW-9 Moolchand, PW-10 Soorajmal and PW-11  

Dhoolchand to prove these documents.  According to Ghisalal, he was taken  

in adoption at  the age of 5-6 years.  He gave description of  the adoption  

ceremonies by stating that his natural father, Kishanlal had made him to sit  

in the lap of Gopalji  and the latter  accepted him as the adopted son.  In  

paragraph 3 of his statement, Ghisalal gave out that the adoption ceremonies  

were performed in village Jeeran on the road in front of the house of Gopalji  

and about 25 to 30 persons including PW-2 Omkar Lal, PW-3 Devram were  

present.  He  further  stated  that  Dhapubai  was  also  there.   In  cross-

examination, he admitted that after one to two years of adoption, he started  

his education in the school at Jeeran and in the school records the name of  

his natural father, Kishanlal was entered.  He then volunteered to say that  

when he had gone to the Principal to get the name of his father changed, the  

latter told him that it will involve cost and, therefore, the change was not  

effected.  In paragraph 5 of the cross-examination, Ghisalal disclosed that  

his father Kishanlal had got him admitted in the school.  He then stated that  

after  three  years  of  execution of the  adoption deed,  he was separated by  

Gopalji. In para 10 of the cross-examination, he stated that at the time of  

26

registration,  Ramlal,  Gopalji,  his father Kishanlal,  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 ignorance  

about the adoption of Ghisalal by Gopalji.  She then stated that she did not  

want to take anyone in adoption. She also spelt reasons for some of the PWs  

deposing in favour of Ghisalal.  The other witnesses examined by Dhapubai,  

27

namely,  Rajaram  (DW-2),  Bherulal  (DW-3),  Khanhiram  (DW-4)  and  

Madhulal (DW-5) expressed their ignorance about the adoption of Ghisalal  

by Gopalji.   

26. The  trial  Court  relied  upon  the  statements  of  Ghisalal  and  his  

witnesses and recorded its conclusion in the following words:

“From the statements of plaintiff witnesses Ghisalal, Onkarlal,  Devram and Ramniwas, it becomes clear that at the adoption  ceremony, Ghisalal was made to sit in the laps of Gopal and a  turbon  was  tied  on  his  head,  batashe  and  coconuts  were  distributed, Havan was not performed.  And Dhapubai was also  present there along with other men and women.  With respect to  the aforesaid facts and also about the adoption ceremony, no  contradiction  has  been  noticed  in  the  statement  of  these  witnesses.  In these circumstances, it becomes clear that when  the  adoption  ceremony  was  conducted  in  the  presence  of  Dhapubai,  then certainly her consent was there and it can be  taken as implied consent of Dhapubai.”

(emphasis supplied)

27. The trial Court also gave weightage to the statement contained in the  

adoption deed suggesting that  Gopalji  and his wife were anxious to take  

Ghisalal in adoption.

 28. The  lower  appellate  Court  briefly  referred  to  the  contents  of  the  

adoption deed and proceeded to observe:

“…….. It is true that there is no mention as to on which date the  formalities of adoption were completed, either in the plaint or in  

28

the adoption deed, whereas the witnesses have stated in their  statements that it was in Sambat, 2016 on the day of Teej when  the  adoption  formalities  were  completed.   Adoption  deed  is  Exhibit P-1.  Ghisalal’s original father Kishan Lal has given in  writing that he has given Ghisalal in adoption to Gopal and he  has accepted to take him in adoption.  Similarly, Gopal has also  accepted that  he has adopted Ghisalal  as his son and he has  affixed his signatures.  Under Section 6 of the Hindu Adoption  Act, the document Exh. P-1 proved that Ghisalal was taken in  adoption.  It has not been proved as to whether the mother of  Ghisalal gave her consent for adoption.  Such an argument was  advanced  by  the  learned  advocate  of  the  appellant,  but  acceptance of such type 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  

29

provisions.  The learned Single Judge then observed that Dhapubai had not  

challenged the correctness, authenticity and validity of the adoption deed till  

the filing of written statement and held that the gift deeds appear to have  

been executed to frustrate the effect of the adoption and ordinarily there was  

no reason for the husband to gift his entire estate to his wife.   

30. In our view, the trial Court, the lower appellate Court and the learned  

Single Judge of the High Court misdirected themselves in deciding the issue  

relating to Dhapubai’s consent to the adoption of Ghisalal by Gopalji.  All  

the Courts held that the consent of Dhapubai can be presumed because she  

was present in the ceremonies of adoption.  The learned Single Judge went a  

step further and observed that failure of Dhapubai to challenge the adoption  

deed is a strong circumstance which goes to show that she had consented to  

the  adoption  of  Ghisalal  by  her  husband.   Unfortunately,  all  the  Courts  

completely ignored that presence of Dhapubai in the ceremonies of adoption  

was  only  as  a  mute  spectator  and  not  as  an  active  participant.   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 and the latter had given her consent or agreed to the adoption of  

Ghisalal or that she had taken prominent part in the adoption ceremonies.  

30

All of them made a parrot  like statement  that  Dhapubai was sitting with  

other women below the platform (chabutra).  By no stretch of imagination,  

this  could  be  equated  with  her  active  participation  in  the  adoption  

ceremonies so as  to enable the Courts to draw an inference that  she had  

given consent for the adoption of Ghisalal.   

31.  Another grave error committed by all the Courts is that they have  

presumed the consent of Dhapubai by relying upon the contents of the deed  

of adoption (Exhibit P-1) in which Gopalji is said to have recorded that it  

was his and his wife’s esteemed desire to take Ghisalal in adoption.  It was  

neither the pleaded case of Ghisalal nor any evidence was produced by him  

to  prove  that  Dhapubai  was  a  signatory  to  Exhibit  P-1  or  that  she  was  

present  at  the  time  of  execution  and/or  registration  of  Exhibit  P-1.  

Therefore, the contents of Exhibit P-1 could not be made basis for assuming  

that Dhapubai was a party to the adoption of Ghisalal.   

32. The so called failure of Dhapubai to challenge Exhibit P-1 cannot be  

used against her because Ghisalal did not adduce any evidence to show that  

after execution of the deed of 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  

31

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 actively involved at various stages of  

the adoption but was also instrumental in Ghisalal’s admission in the school  

and defending the case filed by Pannalal.  If the statements of Ghisalal and  

Devram are read in conjunction with the fact that written statement in Suit  

No.76A of 1964 Pannalal v. Ghisalal and another was filed by Kishanlal in  

32

February,  1966,  there  remains  no  doubt  that  testimony of  Kishanlal  was  

most  crucial  and  yet  he  was  not  examined.  The  trial  Court  did  take  

cognizance  of  this  omission  but  brushed  aside  the  same  with  a  cryptic  

observation that no objection was raised from the side of the defendants that  

plaintiff was not given in adoption by his natural father.  The lower appellate  

Court and the learned Single Judge of the High Court did not even advert to  

this important lacuna which, in our view, would have made any person of  

reasonable prudence to doubt the bonafides of Ghisalal’s claim that he was  

adopted by Gopalji with the consent of Dhapubai.

34. In view of the above discussion, we hold that the concurrent finding  

recorded  by  the  trial  Court  and  the  lower  appellate  Court,  which  was  

approved by the learned Single Judge of the High Court that Gopalji had  

adopted Ghisalal with the consent of Dhapubai is perverse inasmuch as the  

same is based on unfounded assumptions and pure conjectures. We further  

hold that Dhapubai had succeeded in proving that the adoption of Ghisalal  

by Gopalji was not valid because her consent had not been obtained as per  

the mandate of the proviso to Section 7 of the 1956 Act.  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  and the  

33

findings recorded by the trial  Court,  the lower appellate Court and/or the  

High Court on the validity of Gift Deeds dated 29.11.1944 and 22.10.1966,  

Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai and Sale  

Deed dated 19.1.1973 executed by her in favour of Sunderbai are liable to be  

set aside.

35. In the result, Civil Appeal Nos.6375-6376 of 2002 are allowed.  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.  

As a sequel to this, Civil Appeal Nos.6373-6374 of 2002 are dismissed.  The  

parties are left to bear their own costs.

……………………….… J.

[G.S. Singhvi]

………………… ………..J.

[Asok Kumar Ganguly] New Delhi January 12, 2011.

34