Holding

The adoption is invalid because the wife’s consent, as mandated by the proviso to Section 7 of the Hindu Adoption and Maintenance Act, 1956, was not proved, rendering the partition suit untenable.

Summary

Ghisalal claimed to be the adopted son of Gopalji and sought a one‑half share in Gopalji's ancestral property, asserting that the adoption was valid because Gopalji's wife, Dhapubai, had consented. The trial court, appellate court and High Court presumed Dhapubai's consent from her mere presence at the adoption ceremony and upheld the adoption, allowing the partition suit. On appeal, the Supreme Court held that under the proviso to Section 7 of the Hindu Adoption and Maintenance Act, 1956, a wife’s consent must be expressed in writing or by an affirmative act, and mere presence or silence cannot be deemed consent. The Court found no evidence of such consent, declared the adoption invalid, set aside the lower courts' findings, and dismissed Ghisalal's suit. Consequently, the gift deeds, will and sale deed were also declared void.

Issues considered

Whether the presence of a wife at the adoption ceremony amounts to the consent required under the proviso to Section 7 of the Hindu Adoption and Maintenance Act, 1956.
Whether an adoption can be deemed valid in the absence of the wife’s written or affirmative consent.
Whether the presumption under Section 16 (or Section 6) of the Act applies when an adoption deed is registered without proof of the wife’s consent.
Whether the suit for partition of ancestral property is maintainable when the adoption is invalid.

Legislation cited

Hindu Adoption and Maintenance Act, 1956s. 12, s. 16, s. 6, s. 7, s. 8

Subjects

adoptionwife's consentHindu Adoption and Maintenance ActSection 7 provisopresumption of validitypartition of ancestral propertypurposive statutory interpretation

Judgment

[201) 1 S.C.R. 651

GHISALAL A
v.
DHAPUBAI (DEAD) BY LRS. AND ORS.
(Civil Appeal Nos.6373-6374 of 2002)
JANUARY 12, 2011
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

Hindu Adoption and Maintenance Act, 1956:

s. 7, proviso - Consent of wife is a condition precedent c .
for adoption by a male Hindu - Consent should either be in
writing or reflected by an affirmative/positive act voluntarily
and willingly done by her- 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 .0
y her consent- Wife's silence or lack of protest on her part also
would not give rise to an inference that she had consented to
the adoption - In .the instant case, Ghisalal claimed right in
properties of Gopalji on the ground that Gopalji had adopted
him with the consent of his wife Dhapubai - All the courts E
below held that the consent of Dhapubai could be presumed
because she was present in the ceremonies of adoption -
High Court went a step further and observed that failure of
Dhaplibai to challenge the adoption deed was a strong
circumstance to show that she had consented to the adoption
of Ghisalal by her husband - Courts below completely ignored F
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 that the G
- latter had given her consent or agreed to the adoption or that
she had taken prominent part in the adoption ceremonies -
All of them made a parrot like statement that Dhapubai was

651 H
"
652 SUPREME COURT REPORTS [2011] 1 S.C.R.

A sitting with other women below the chabutra - No evidence
was produced by Ghisalal to prove that Dhapubai was a
signatory to the adoption deed or was present at the time of
its execution and/or registration - Therefore, the contents of
adoption deed could not be made basis for assuming that
B Dhapubai was a party to the adoption - Testimony of
Kishanlal, the natural father of Ghisalal was most crucial and
yet he was not examined - The concurrent finding recorded
by the courts below that Gopalji had adopted Ghisalal with the ~
consent of Dhapubai was perverse inasmuch as the same was
c based on unfounded assumptions and pure conjectures -
Dhapubai had succeeded in proving that the adoption of
Ghisalal by Gopalji was not valid - .Therefore, the suit filed
by Ghisalal for partition of properties belonging to Gopalji was
not maintainable. ·
D s. 7, proviso - Interpretation of the term 'consent' used in
'-f'
the proviso - Held: The term 'consent used in the proviso to
s. 7 and the explanation appended thereto has not been
defined in the Act - Therefore, while interpreting the provision,
the court has to keep in view the legal position obtaining before
E 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 s. 7 should either be in writing or
reflected by an affirmative/positive act voluntarily and willingly
F done by her - Interpretation of statutes - Purposive
interpretation.

Hindu law: Old. and present law relating to adoption -
Comparison between - Hindu Adoption and Maintenance Act,
1956.
G -j...

The case of the appellant was that one Gopalji had
taken him in adoption at the age of 5~6 years in 1959. He
gave description of the adoption ceremonies by stating

H
GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 653

that his natural father, Kishanlal had made him to sit in A
,.,,. the lap of Gopalji and the latter accepted him as the
adopted son. The deed of adoption was executed and
got registered on 25.6.1964. Dhapubai, the wife of Gopalji
had consented to the adoption.
8
The appellant filed a suit for partition with a prayer
that he should be given one half share in the properties
belonging to Gopalji. In the said suit, he challenged gift
+ deed 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 one Sunderbai in respect of one parcel
c
of land. Later on, an amendment was also made in the
plaint 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. In her written D
y statement, Dhapubai not only disputed the adoption of
Ghisalal by Gopaiji, but categorically averred that she had
not consented to the adoption. She also questioned the
locus stahdi of Ghisalal to challenge the gift deeds.
E
The trial court held that the suit properties were
ancestral properties of Gopalji and the appellant was
..,,.._ validly adopted son of Gopalji and the consent of
Dhapubai could be presumed from her presence in the ..
adoption ceremonies; and the gift deeds and Will were F
not valid. The first appellate court upheld the order of the
trial court. The High Court confirmed the findings
recorded by the two courts on the legality of Ghisalal's
adoption by Gopalji and that Ghisalal was not entitled to
challenge the gift deed dated 29.11.1944 but held that Will
G
'
-Jr' Dated 27 .10.1975 could not be treated to have been
validly executed by Gopalji. Ghisalal and Dhapubai filed
instant appeals before this Court.

Disposing of the appeals, the Court
H
654 SUPREME COURT REPORTS (2011) 1 S.C.R.
•
A HELD: 1. Section 6 of the Hindu Adoptions and
Maintenance Act, 1956 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
B 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
c is subject to the rider enshrined in the proviso which lays
down that if the male Hindu has a wife living then he s'l)all
not adopt except with the consent of his wife unless slle
is incapacitated to give the consent by reason of her
having completely and finally renounced the world or hel'I
having ceased to be a Hindu or she has been declared
0
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 f!'lom
E any of the disabilities specified in the proviso to Section
7. 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
F shall stand severed and replaced by those created in the
adoptive family. Clause (b) of the proviso to Section 12
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
G 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
H
GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 655

whenever any document registered under any law for the A
time being in force evidencing 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 otherwis.e. [Para 17) B
[673-C-H; 674-A·C)
~

2.1. In Indian society, a male spouse enjoyed the
-J 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 c
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 D
r 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 E
conferred no legal rights upon the adopted person. A
daugMer 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, F
the law was not finally settled and there was divergence
of judicial opinion. After India became a sovereign,
democratic republic, this position has underwent a sea
change. The old Hindu Law was codified to a large extent
on the basis of constitutional principles of equality. The G
·~ 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. H
656 SUPREME COURT REPORTS [2011] 1 S.C.R.

A 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
B 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
c 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
0
eighteen years can also 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
E 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
F 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. [Paras 18, 19] [674-D··
G H; 675-A-G]
2.2. 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
H provisions, the court shall have to keep in view the legal
r'".; • r._ t. ., i -L - .JI 1 i , . . 1 •. ~ • :_• , •• I . ~ r- • : ;·.~ !

GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 657

~'~ I !: l.'f 1 • ' ~ · • II . ' , .. I " '; l - • f'"' • . ~' 1

position obtam1~g ~efore enac~men~ of ~~~ .19~~ Aft., tl],e A
object of the hew legislation arid apply the rule of
purposive interpretation and if that done, it woulCJ be is
reasonable to say that the consent of wife envisaged in
the proviso t() Section 7 should
:.,.., . ··r
. · , •,
either
,. · ·
be · -··.
in writing .
.._,.,..., .• , , . -.r .'' 1;"'. r.·u~
or '·1

refl~cted -~y -~n, affJrm~tive/p~si~ive act ,yolunt~rily a~d 8
willingly done by her•. If the adoption by a Hindu male
' ~ f • • •... j J' . . : ,_.. I

becor1es subJ~f,~ ~?~~~r r '!f. ch~!~~,n~~, b~fore ~he ~ourt;
_the party supporting the adoption· has to adduce
evidence to prove ,that. the .was done with the same
consent ,of ti is' wife. t~is l ~~ii ~e ~one either, by
producing doc~ijle~t l!Videhc!ilg h~r consent iri _writing
c
or by leading. evidence to sHow that wife had actively
participated iri tile cereiTionie~ 8i adoption .witti an
t' • ~ ~···"·,·'.- ··.~_;; -1 il'fo' J" ~·I ·:1-:I~] ,._j, • ' "L" 11.,,_

affirmative mmdsetto support the action of the husband
to take a son
or a daughter in adoption: The presence of D
wife as a spectatoHii the assembly of people who gather
at the place. whefe
-~ -ii.•.· . ' - - ;
ceremonies of .adoptiOri
' ' t.1 i:-,,...
Hie are ~. ~ ~ J • J -

performed
·
cannot be treated
.. r1·- ,_.,.
as her consent.
.'·-~1·f~ .f".-: ,,
In - otHer
... J.,~.~, .~

words, the Cou11_c~nnot pre!"ume the _con~ent of wife
simply, because she .~as _pre~ent at the ,thtie of adoptio"!. E
!h~. wife';; silence or .la~_k of protest.pn her P.art also
cannot give rise to an inference ttiat she tlad consented

- fo the adoption: [Pata 20] [675-H; G7£~:A-E]
.
3.1. This Court is extremely loath to interfere with the
coilc-urrent finding of fact recorded by the _courts beiow
- . .
-
. - ! 1 - -- ' . - -

F
inore particularly when such finding has been approved
by the High Court. In such matter~; !~terf.erence is
warranted only When this Court is convi~~ed t~at the
finding is ex lacie p~rverse. A find!ng .of fact can be ,.,,_
treated as perverse if it is based on no evidence or there G
is to~al misreading of pleadings and/or evidence of the
p-arties or - the findlng is based on unfounded
assumptions or conjectures. [Para 23] [680-A-B]

''
H
658 SUPREME COURT REPORTS [2011) 1 S.C.R.

A 3.2. 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, PW-3 and PW-4. He produced
. copy of the deed of adoption {Exhibit P-1), the plaint
(Exhibit P-21) of Suit No.76A of 1964 filed by one Pannalal
B in which he and Gopalji were impleaded as defendant
Nos.1 and 2 and copies of the written statements
(Exhibits P-2 and P-3) filed in that suit. He also examined
witnesses to prove these documents. In the cross-
examination, Ghisalal disclosed that his father Kishanlal
c had got him admittect in the school and in the school
records, the name of his natural father Kishanlal was
entered. In the cross-examination, he stated that at the
time of registration; Gopalji, his father Kishanlal and
Dhapubai had come along with him but he did not know
whether Dhapubai had signed on the registry. He also
0
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,
E Dhapubai was sitting below the platform {chabutra). In her
statement, Dhapubai categorically stated that Gopalji had
not obtained her consent for the adoption of Ghisalal and
that sh~ had not gone to tehsil for the purpose of registry.
Dhabubai also stated that she did not know whether
Gopalji had gone to tehsil and got the registry of adoption
F deed. 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, namely, DW-2,
G D'JV-3, DW-4 and DW•S also expressed their ignorance
· about the adoption of Ghisalal by Gopalji. [Paras 25, 27]
[680-G-H; 681-C-G; 682-A-C]

3.3. The: trial court, the lower appellate court and the.
H High Court misdirected themselves in deciding the issue
GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS .. 659

relating to Dhapubai's consent to the adoption of Ghisalal A
by Gopalji. AU the courts held that the consent of
Dhapubai could be presumed because she was present
in the ceremonies of adoption. The H.igh Court went a
step further and observed that failure of Dhapubai to
challenge the adoption deed is a strong circumstance to B
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 · c
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. All 0
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. [Para 30) [684- E
C-G]

3.4. Another grave error committed by all the courts
was that they had presumed the consent of Dhapubai by
relying upon the ·contents of the deed of adoption F
(Exhibit P-1) in which Gopalji was said to have recorded
that it was his and his· wife's esteemed desire to take
Ghisalal in adoption. It was neither tile 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 G
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. The so called
failure of Dhapubai to challenge E~hibit P-1 cannot be H
660 SUPREME COURT REPORTS [2011) 1 S.C.R.

A 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
B .was aware of the execution and registration of the deed
of adoption and she deliberately omitted to challenge the
same. [Paras 31, 32] [684-H; 685-A-D]

4.1. While analyzing and evaluating the evidence of +
C the parties, the courts below failed to notice an impo,rta"!t
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, Advocate and his clerk PW-8 would
D show that the written statement in the s~it filed by
Pannalal was drafted under the instructions of Kishanlal
and he had signed the same as guardian of Ghisalal. This
would show that Kishanlal had played the most pivotal
role in the adoption of Ghisalal by Gopalji. Therefore, he
E 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 was
given why Kishanlal was not examined despite the fact
that he was not only actively involved at various stages
F of the adoption but was also instrumental in Ghisalal's
admission in the school and defending the case flied by
Pannalal. If the statements of Ghisalal and PW-3 are read
in conjunction with the fact that written statement in Suit
No.76A of 196:4 Pannalal v. GhisaiaJ and another was filed
G by Kishanlal in February, 1966, there remains no doubt
that testimony of Kishanlal was most crucial and yet tie
was not examined. The trial court did take cognizance of
this omission but brushed aside the same with a cry,pth::
observation that no objection was raised from the sidEt
H of the defendants that Ghisalal was not given in ad.npt.10.n
~Y ~is ~a~!.lral f~~~~f ThE7 !~~~r ~RPe!l!ite ~gurt an~ ~~e ~
High' Court did not· even ~advert fo"this important lacuna
·
which would. have'' made' any 'person' of reaso'n'aille
prudence to; ao'ubt the· bonafides 'o( Ghis,alal'-s' claim that
tie' was a'dopted by Gopalji with1 the' consent ·of Dhapubai:
[Para 33r£685~D!H; ~6,86-A~cr' 1' • : • ·· · - )• ; :. ~ ~' 8
••~ .... J-1 -~·_ •. ~.,, •. '" .. ,_~ 'J

. 4.2. The concurrent finding> rec9rded . } -• ! •
by the 1
rl.
trial court"f
' - l - •I . I ~; r·~

and the lower·a·ppellate court, which was approved by the
-+ t-,, ' . ·_
High Court that·Gopalji had adopted Ghisalal with the
••• : ! I '
t

!
. ·

I ··n
l .. -1- • •
f ,.

I
'~

r"":l'~, {''~ >1lLt
I • ~ t . r'

I : ....
~

1-'
, ,

.
:_ __ • :-, .,

r'lrl

consent of Dhapuba1 was perverse inasmuch as the
s~me was' based' o'n urifOunded 'as~umptions' and' pure ~
d>tijectJres.'
t .. : · 1,
DhapubalJhiid
' .-i.··•. • -.fl
succeeded iii' 1r
proving that' the
c - , . 1.- -r 1 1:·•..--,-Q·~""t'llP·(1 .!rr·:··~

adoption
d . ..
of Ghisalal
, '
by Gopalji was
~· -y.,
not..__,validI because
. . J
her
.• : ' • • . - I ··~ ,.I.I•

consent was not obtained as per
·. ' r .. -
the mandate
·-· ,. '
of r
the
r ' , . ' ' ~

proviso to Section 7 of the 1956. Act. Therefore, the suit
filed
,·- ll
by
Ghisalal' was ·'not
'- l<l'
'maintainable
··- ._ ~.,_~·
•.
'and the findings D
-.-· • ·' l .. . • ,,._ .. (- . ; . '-)

recorded ·by the trial court, the· lower appellate coli rt and/
or the High Court 'ori the 'validityrof .gift deed's· ·dated
29.11.1944 and 22~ 10~196S;Will dated·21:1'0.1975~exec'uted
by Gopalji in favour of Dhapubai and sale deed dated
19.1.1973 executed by her in'favoui of Sunderbai are liable E
to be set aside. [Para 34] [686-C~FJ' <:>» - - "'
.,.;, ~ "f .a::~~ ••.. , .
K. Laxmanan v. Thekkayil Padmini (2009) 1 SCC 354;
Janki Narayan Bhoir v. Narayan Namdeo'kadanf (2oo3) 2
S~p 91; Kashibai v. Pa'rwati~af (1'995) s·cc 21 ~; ·s F
Brajendra Singh v. State of M;P.
J" "
(2008)
· • '·
13 SCC 161;
• ·, ' •i • ; I ' • • I ~ I

Moo/chand Chhota/al v. Amritbai Manji Khoda Bhai and
others (1976) MPlJ"382 - refei"red''to.·/ ',. J·•·· 4 ,,... .,_c
'' - ;-, .,O•t'°r:'l!J

Case Law Reference:
l. ~ ·...; G~' ;,~~LI J, ;t..,t;.
G
(2009).1 ~1 sec 354 referred to Para14
-\..
Ir _, ..,, •
• ~ r•-· f:._ . l.l.' I ~·J {. 1.L"

(2003) 2 sec 91 referred to Para 14
, ' • . - ~' ' •. 1 j ' .. , .·b--~ ·~ ...

(1995)
J
6 sec
- .
213
.,. :
referred to ~ara 15
~ ~ f
~ ' ''J " L
«
H
662 SUPREME COURT REPORTS [2011) 1 S.C.R.

A c2008) 13 sec 161 referred to . Para 15
(1976) MPLJ 382 referred to Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
6373-6374 of 2002
B
From the Judgment & order dated 12.09.2000 of the High
Court of Madhya Prades at Jabalpur in Second Appeal Nos.
25 & 61 of 1978.

WITH
c
C. A. Nos. 6375-6376 of 2002

Puneet Jain, Pretibha Jain for the Appellant.

Nikhil Majithia, Rameshwar Prsad Goyal for the
D Respondents.

The Judgment of the Court was delivered by

G.S. SINGHVI, J. 1. Whether mere presence of Dhapubai
E in the ceremonies performed by her husband Gopalji for
adoption of Ghisalal amounted to her co.nsent 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
F 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.
-G
2. Although, Gopalji, Dhapubai and Sunderbai who were
impleaded as defendant Nos.1to3 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
H by the description given in the suit and the appeals.
GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 663
[G.S. SINGHVI, J.J
3. The pleaded case of Ghisalal was that in Baisakh of A
Samvat2016 (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 B
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 c
transferred lands of villages Jeeran, Amya 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 D
depriv~ him of his right in the an.cestral 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 E
agricultural produce and pay him his share.

4. In the written statement filed by him, Gopalji pleaded
that he had not adopted Ghisalal ~nd no ceremony was
performed; that the so called adoption deed was obtained by F
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 G
· 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. H
I
/
664 SUPREME COURT REPORTS [2011) 1 S.C.R.
•
A 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
B 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
c 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
D suit properties to- his wife Dhapubai. After some time, Gopalji
died.

7. In the light of the pleadings of the parties, the trial Court
framed the following issues:
E
(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?
F
(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?
G
(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?
H
.. L ~· D!-1,1\P,L/~~I (D!=~P> 8-Y LLB~· ~,~P R~~· ~R~
~tl!S,.A.LA,
' . " ' ' . [G.$.' SINGHVI, J.] '~ . -
'
(7)
•

(8) Relief and expenses.
,v, 1·,,_.1•',_ 1 u11u _.,....fJ~I ·-.e····

8. After considering the pleadings and evidence produGed B
u
by the parties: the tri~l'Courfheid'as"'uhder:· '"--"' "' ,; ur "'-t:u
~• ._· ._1 d .:J LI it:: ...... 1 ....... vu~ 1 •• ch•..! _ !). U! 1 , -

(1) The suit properties were ancestral properties of
-+ I Gopatji. - •• - 1 ' '. ,.:-. --.!;. t; " ' ' .. - - d' ,.,, -_.,__··. '.•l j u'
'J '
c
(2) '
'~ r

(3)
_..,, D
u

(4) Will dated 27.10.1975 executed by Gopalji in favour
of'bila'pub~i WaS invalid. '-'" < y - ' < I' II l.!VUI..•
1 1

t l . l ... '' • ' ! I l ""'"'!n~ 1~1 E
[.

(5) Gift Deed dated 29.11.1944
. I ·-·
executed uby Gopalji
,,.Lt t--<:Y"-"I'' I ':il ~--·'l,
-· I I , ... ·:.--..!

in favour of Dhapubai was not valid inasmuch as
'" • I~· ·I,.. ~. ' ·3 : ''.'· v·_ ''1j It ~J 1- l,.t • rt!:"- 1
.1 .• i 1

there was no acceptance by the donee anC1
alienation of ancest~alproperty
. •
by'Gopalfi ln'favour
';f,J,_l ·f t Ill '.;.;t'.l()'J;
u~
I' ,
1

of his wife was not for a pious purpose.'
f Ip L
1
• 'j
F
I'
.. 1-, ·- .i.....~ 11,_,~ "'..ii , 'J'..i.4 ·Jl..ff"'V.;,)t"'

9. Dhapubai1 challenged the judgment and decree of the
trial Court by tilih g an"ap~eal under'section'96'rela& with '6rl:ler
XLI Rule 1 of the Code'Of Civil Procedure.' The lower ·a'pp'eiiate
Court Jag reed with 'the triai Cburt ithat' the suit.
1
properfiesr-were G
ancestral; that the adoptio n of Ghisalal byGopalji'was'vilid'and l'J

that the gift deeds" ·executed 'in' favour' of Dtla'pulJai were 'H6t
valid·. However, 'the findings recorde·d on' tlie'fegality"of Gift
• 1 \._"•1• · f · · · , ' ' ~- ·~ "'•' I 1
~

Deed
' Jt:-
dated 29.11.1944
.
and Will
- f. - 1 ' ' ·
dated
t. l -
27.10;1975.
£. I
(both
' \ J • • f • \ l( H · ~ J ~ l w '

executed by Gopalji ih favour of Dhapubai) were set aside" and H
~R·: .. ,. -., L • 'Jf'' -··· . . . • · ·, I J' ~' ·; ' t ·r•,, "'·'•.._. tr. ''">H•. :1--"' .::11 ' '
I I
666 SUPREME COURT REPORTS [2011] 1 S.C.R.

A 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 situated at village Kuchrod may be given to Ghisalal
as his 1/3rd share so that there may not be any dispute
B 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 +
C 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:

D (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?
e. (2) Whether the execution and attestatio'1 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
F .favour of Dhapubai?

(4) Whether the lower Court has acted without
jurisdiction or erroneously in. giving directions with
respect to the apportionment of the plaintiffs share
in the suit land?
G
12. In the second appeal filed by Dhapubai, the High Court
framed the following substantial questions of law:

· (1) Whether there is any legal evidence on record to prove
H the consent of Mother Dhapubai as required by Section 7
.GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 667
[G.S. SINGHVI, J.]
. of theHindu Adoption and Maintenance Act, 1956 for the A
--< vali.d 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?
B
(3) Whether the finding of the Court below that suit
properties are ancestral is perverse?
-f
13. The learned Single Judge confirmed the finding
recorded by the two Courts on the legality of Ghisalal's adoption c
, ' 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. T-he
learned Single Judge further held that the lower appellate Court D
y 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 E
is directed that each of the party is entitled to half share in
the agricultural lands of village Jeeran, Kuch rod and Amya
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 F
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
. plaintiff agrees that land survey No.347 admeasuring 0.375
.:..,(' hectare of village Kuchrod can be given to the defendant G
'
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 H
668 SUPREME COURT REPORTS I
[2011) 1 S:C.R.
•
A 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
m!Jtually settled and agreed between the successors of
Dhapubai and Sundarbai. On such an agreement particular
B 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
c between Ghisalal and successors of Dhapubai. The
parties shall be at litierty 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.
D
Regarding partition of the house ttie party/parties may 'Y
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."

E 14. Shri Puneet Jain, learned counsel for Ghisalal argued
that Dhapubai's challenge to the adoption of Ghisal~I by G~palji
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
F concurrent finding of fact. He pointed out that the trial Court and
the lower appellate Court had concurrently held that Ghisalal
was taken in adoption strictly in ·accordance with law and a
registered deed of adoption was also executed by the natural
a.nd adoptive fathers and argued that the High Court rightly
G 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
H
•
/

<3HlsAL~L v. oH.i\P.U?Ai (D~{\R> ~y u~s: AND oRs. 5g9
[G.S. SINGHVI, J.) -
~' 1n;qi •• ~' ·I'~- . . ,~ . . ·.1. 1_.... 1:v ,.,_ ..
by Gopalji
· (1., .
in Civil Suit No.76A
= ·.
of· 1964
,1 • ' · ~
- Parinalal v; Ghisalal
· - ;l.
, · t ' ' ~t_. ., I L ~--r!
A.
,~
and another wherein he aamitted the adoption of Ghisalal
• 1 ( 1 1 .. ,,..... ~•·•~·-· . (-,~· ·'1'.
ana ·~. 1 '-~jl ;', -.~ 1,·•~ .' l','I
0

argued that the contrary assertion made in the.written statement
filed in the suit of Ghisafal was rightly
•I ~f'·~· t•
discarded oy the courts
L.• lJ ' _ • J ,-- J.1, _ 1~ 0··'' ·•i1••~ ~ , · f _.,'.. _ ' ·.-'~

below and the High.Court. Learned counsel furtlier argued tliat
~fte~~ ~i~. a~cjpt\o~. ¢,_His~.i~I ~~c~m.~. -~ ~~parc~nerJn 'theJ~ryi~y B
?f 9.9J?~lji. a,n~:- wa~"en_ti.tle~ -~~£~~-1~.,~~a_r~e 1 jnJ~e, pr_o~ert!es
m~~f~t~p l?,Y 1P)s . 1~dop~X~f~~t-~~f- ~.~.9·~ ~~ :;~p~;_. me. f1,l"!d1pg
r7cor~e;a. by, the;_ 19i.ye~ ~ppe.llat~S~oH~,~pd ,the ~1gh fourt .on
-+ his locus to challenge Gift Deed dated 29.11: 1944, which
, • ..... ,- t- . ·, - -~ "" ~' -· - ' 1W11.·1'"''

adversely affected. his ~ right in the suit properties
1. • ' ' ' ~ .,,
is legally r • ,. •• ·'. ·.•· • - • ''. c
unsu~tainable. Learned _coun~el ~~bmi~~d th~t ~y~n tho1;1gb po
spei::ific prayer was made in.the suit tor setting aside Gift Dee9
dated 29.11.1944, the triai Court had rightly declared the same
to be invalid, ineffective aria inop~rative bec~use Ghisai~i i-ia~
· -- - : ~ ·1~.,;,·t H • • ·'~ ~ 1i.! 1_ •'rl 0 •.· ·uh~ 'IL. . . •••
1 1
•••••

challenged vahd1ty. tliereof by amending ttje plaint ana th~ 1 •
parties Jlad
P· f'
adduced evidence kRowing fully wail ,that
I .· ,..._ ·.
the legallfy D
-J · .'' , • .J 1··. '' - , ..... ~ 1 j ·" ( • I • '· 1

'-f' of the gift deed of ~944 i~,:;ubj~<?t .!n~tter of _s9rutiny,~~Y,m~
Cou~~: _Sliri Jain subryiitt~d -~haLi11 the .. a,n:ien.~~d .V¥i"!t~eri _
statement, Dhapubai had pleaded Gift Deed dated 29.11.1944
as a weapon of defence _with the sole object.of defeating the r:.
right acquired by Ghisalal by virti.ie of. his adoption and; E
therefore, the trial CourtI~ lJ"
!<r O
liad•t:righiiy ah nulled the
~·~,..·' ', • ·~·-
same on ~
t~e 1
"·. ' '

ground of non fulfillment of tlie essentials of a valid
• iJ ,A.
gift•" .
and.the ·• •'J,-'- i' ('' f .LJ l <""

---i<- lower.appellate Court and the Higli Court cqmmitted serious
error
. ·
by invoking Sectibn '."' r
12 of the. 1956 Act ~
and the "f bar of
t,... ~
" I
1
"' , I I J •

limitation for the purpose of non suiting him. Learned counsel F
relied upon the judgment of this Court.in K. Laxmanan v.
Thekkayi/P,adrnini (2009) 1 sc.c. ~.54 and argued that tbe
lower appellate Court seriously erred in reversing the finding
and eonclusion recorded by the trial Court on the issue of validify
of Gift Deed dated 29.11.1944 ignoring that the burden to G
, -( prove the competence of Gopalji to execute ihe gift deed in
respect of a portion of the suit property Was on Dhapubai, which
~ht} _f~iled to discharge., Learned ~ounsel also argl!ed t~at gift
of the joint family property was nullity arid the same could be
. challenged ai
any time. Shri Jain referred to the ]udgmeht of H
670 SUPREME COURT REPORTS [2011] 1 S.C.R.
•
A 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 invalidated the Will executed by Gopalji in favour
of Dhapubai.

15. Shri Nikhil Majithia, learned counsel for Dhapubai
8 argued that eveh 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
C 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
D 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
E 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 1he
judgments of this Court in Kashibai v. Parwatibai (1995) 6 SCC
213 and Brajendra Singh v. State of M.P. (2008) 13 SCC 161.
F 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 Wilt Learned counsel
supported the impugned judgment insofar as it relates to Gift
G 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 misconceive.d and negatived
because the adoption cannot relate back to any date prior to
H 1959.
GHISALAL v. DHAPUBAI (DEAD). BY LRS. AND ORS. 671
[G.S. SINGHVI, J.]
16. We have considered the respective submissions and A ·
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:
B
"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;
c
(ii) the person giving in adoption has the capacity to
do so;

(iii) the person adopted is capable of being taken in
. adoption; and
. .
D
'r (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 E
the capacity to take a son or a daughter in adoption:

Provided that, if he has a wife living, he shall not adopt
-r'· ·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 F
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 G
-i unnecessary for any of the reasons specified in the
preceding proviso. ·

8. Capacity of a female Hindu to take in adoption. -Any
female Hindu - ·
672 SUPREME COURT REPORTS [2011] 1 S.C.R.
•
A (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
B dead or has completely and finally renounced the
world or has ceased to be a Hindu or has been
deciared by a Court of competent jurisdiction to be
of unsound mind,
'
c has the capacity to take a son or daughter in adoption.
I r • ·11, ,
1

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 froin such date ail the ties of the child in the
D 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 -
E
(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
F before the adoption shall continue to vest in such
person subject to the obligations; if any; attaching
to ttie ownership of.such property, including the
obligation to maintain relatives in the family of his
or her birth;
G
(c) the adopted child shali not divest any person of any
estate which vested in him or her before the
adoption.
~ ? ~

16. Presumption as to registered documents relating to
• • • · , I I

H
GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 673
[G.S. SINGHVI, J.]
adoption. - Whenever any document registered under any A
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 8
unless and until it is disproved."

17. Section 6 reproduced above enumerates the requisites
-i 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
c
capacity to do so; the person adopted is capable of being taken
in adoption, and the adoption is made in compliance with the
oth@r conditions mentioned in Chapter 11. Section 7 lays down
thaf any male Hindu who is of sound mind and is riot minor has ·
the
. capacity to take a son or a daughter in adoption. This is D
....,. '
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 E
or she has ·been declared QY 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 F
any of the disabilities specified in the proviso to Section 7.
Section 8 enumerates the conditions, which mustbe 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 G
...... 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 H
674 SUPREME COURT REPORTS (2011] 1 S.C.R.
•
A 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
~elatives in the family of his or her birth. Likewise, clause (c) to
B 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 adoption and signed
c 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
D 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
1'
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
E 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 auihority. Ho~ever, in no
case a wife or a widow could adopt a son to herself. An
F 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 physicaLaclof giving was a prime necessity of the
ceremonial requirements relating to adoption. As to datta
G 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
H has been codified to a large extent on the basis of constitutional
- GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 675
[G.S. SINGHVI, J.]
principles of equality. The Hindu Marriage Act, 1955 codifies A
the law on the subjec,t of marriage and divorce. The Hindu
,.J,,
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 8
codification of laws. Once the Hindu Succession Act was
passed giving equal treatment to the sons and daughters in the
matter of succession, ~t was only logical that the fundamental
i guarantee of equality of a status and equality before law is
recognized in the matter of adoption. The 1956 Act now c
provides for adoption of boys as well as girls. £y 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 D
the family. If the wife finds that the choice of the person to be
'f 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 take a son or daughter in adoption to
E
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 F
. 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 G
--< 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 H
676 SUPREME COURT REPORTS [2011] 1 S.C.R.
-
A 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
B 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 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
c 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
0
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
E 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
F 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.
G Plaintiff No.2 was daughter of Lachiram from his first wife
Kashibai and defendant No.2 was 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,
H open plot and some agricultural lands. The defendants
- GHISALAL v. DHAPUBAI '(DEAD) BY LRS. AND ORS. 677
[G.S. SINGHVI, J.]
contested the suit. One of the pleas taken by them was that A
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 B
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 c
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 D
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 E
3, Purshottam in adoption. The trial court also recorded
the finding that Plaintiff 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 F
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 G
Maintenance Act, 1956. Section 7 of the Act provides
that any male Hindu who is of sound mind and is not a
minor has lhe 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 H
678 SUPREME COURT REPORTS [2011] 1 S.C.R.
•
A 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,
B 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)

C 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
D 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
E 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 1he pendency of
the. suit, she executed a registered Will bequeathing all her )("
properties in favour of the appellant. The trial Court decreed
F 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
G 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
H
- GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 679
. [G.S. SINGHVI, J.]
competent jurisdiction to be of unsound mind. If the A
.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 B
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 c
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 D
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 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 E
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." F

(emphasis supplied)

23. We shall now consider whether the trial Court and the
· lower appellate Court had rightly held that Ghisalal was validly G
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 H
·;
A
680 SUPREME COURT REPORTS (2011} 1 S.C.R.

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
B 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
C 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
D 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.
E 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
F 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
G Ramniwas. He produced copy of the deed of adoption (Exhibit
P-1), the plaint (Exhibit P-21) o( Suit No.76A of 1964 filed by
Pannalal in which he and Gopalji were impleaded as defendant
Nos.1 and 2 and copies of the written statements (Exhibits P-'
2 and P-3) filed in that suit. He also examined PW-5 Gumbhir
H ,
~ GHISALAL v. DHAPUBAI (DEAD) BY LRS.1AND ORS. 681
[G.S. SINGHVI, J.] I
Singh, PW-6 Hiralal, PW-7 Ramchander Sharma, PW-8 lmdad A
_j "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 B
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 c
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 D
to the Principal to get the name of his father changed, the latter
·-t
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
E
cross-examination, he stated that at. the time of 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 F
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. G
'f
:He further stated that in his presence no talk had taken place
_with Dhapubai. In his cross-examination, Devram stated that
Dh~ub'' i 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 H
682 SUPREME COURT REPORTS [2011) 1 S.C R.

A ·with other ladies. In her statement, Dhapubai categoriGally
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 doe~ not
know whether Gopalji had gone to tehsil and got the registry of
B 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
c by Dhapubai, 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 conciusion in the following
D 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
E 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
F 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."
G (emphasis supplied)

27. The trial Court also gave weightage to the state-.ment
contained in the adoption deed suggesting that Gopalji and his
wife were anxious to take Ghisatat in adoption.
H
GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 683
[G.S. SINGHVI, J.]
28. The lower appellate Court briefly referred to t_he A
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 the adoption deed, whereas the witnesses have
B
stated in their statements that it was· in Sam bat, 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 c
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
-'1' the mother of Ghisalal gave her consent for adoption. Such D
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 E
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." F
(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 G
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 th.e adoption deed was duly
registered and held that in view of Section 16 of the 1956 Act, H
684 SUPREME COURT REPORTS [2011) 1 S.C.R

A 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 of written statement and held that the gift deeds appear
a 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
C 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
D 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
E as an active parUcipant. 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
F in the adoption ceremonies. All .of them made a parrot like
statement that Dhapubai was sittiflg 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
G 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 whicb-
Gopalji is said to have recorded that it was his and his wif~1$-
H
GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 685
[G.S. SINGHVI, J.]
esteemed desire to t~ke Ghisalal in adoption. It was neither the A
pleaded case of--Gh1salal 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 s
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 C
thereof was made available to her. In the aboonce of such
evidence, it cannot be assumed that Dhapubai was aware of
the execution and registration of the deed of adoption and she
deliberately omitt.ed to challenge the same.
D
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 E
deed of adoption. The statements of PW-7 Ramchander
Sharma, Advocate and his clerk PW-8 lmdad 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. F
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 . G
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 conjunctiqn with the fact that
• written statement in Suit No.76A of 1964 Pannalal v. Ghisalal
and another was filed by Kishanlal in February, 1966, there H
686 SUPREME COURT REPORTS [2011) 1 S.C.R.

A 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
s 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. ~

c 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
D based on unfounded assumptions and pure conjectures. We
further hold that Dhapubai had succeeded in proving that the
adoptior. of Ghisa'.al 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
E that the suit filed by Ghisalal for gr,ant of a decree that he is
entitled to one half share in the properties of Gopalji was not
maintainable and the 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
F 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
G 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.

H D.G. Appeals disposed of..