Beeru vs Aam Janata And 2 Others
2015 Latest Caselaw 1845 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 19
 

 
Case :- SECOND APPEAL No. - 733 of 2015
 

 
Appellant :- Beeru
 
Respondent :- Aam Janata And 2 Others
 
Counsel for Appellant :- M.D. Mishra
 

 
Hon'ble Ashwani Kumar Mishra,J.

Plaintiff-appellant filed a suit for a declaration that he is adopted son of one Jagdish Saran, son of Mangal Das. According to the plaintiff's case, his natural parents Hari Ram and Smt. Usha Devi gave the plaintiff in adoption to Jagdish Saran while he was about 5 years of age in 1990. Admittedly, no document evidencing such adoption or deed of adoption so executed was brought on record. The suit was itself filed in the year 2006, after Jagdish Saran had expired. According to the plaint allegation, the need for filing of the suit arose as Jagdish Saran was an employee of the North Central Railway and in order to consider plaintiff's case for compassionate appointment, the Authorities had insisted upon a decree of competent civil court evidencing and acknowledging such adoption before the plaintiff's candidature could be considered and that is why the suit was filed. The suit was contested by  Smt. Pushpa Devi, opposite party No. 3, who was stated to be wife of late Jagdish Saran by denying the plaint allegations and it was stated that the plaintiff belongs to a different caste and was not related to the deceased and no adoption had actually taken place of the plaintiff. It was further stated that such suit had been filed only in order to secure an appointment with the railways, whereas at no point of time, the plaintiff had been taken in adoption. Various other grounds were urged to contest the plaintiff's case.

Both the courts below have concurrently rejected the plaintiff's case after recording a finding that Smt. Pushpa Devi was the legally wedded wife of late Jagdish Saran and  neither any consent of Smt. Pushpa Devi as was required under proviso to section-7 of the Act existed nor there was any registered document evidencing such adoption. Courts below further disbelieved the plaintiff's  case upon consideration of oral and documentary evidence, noticing various inconsistencies in the stand of the  plaintiff witnesses as also the statement of the plaintiff himself. Aggrieved by the decisions of both the courts below, plaintiff-appellant has preferred the present appeal.

Shri M. D. Mishra, learned counsel appearing for the plaintiff-appellant submits that the findings returned by both the courts below  in the impugned judgment are contrary to materials and evidence available on record. He further submits that from  consideration of materials available on record, the factum of marriage of opposite party No.3 with the deceased itself is doubted and not proved. He further submits that the relationship between late Jagdish Saran and Smt. Pushpa Devi were otherwise estranged and right from 1983 onwards, various litigation between them had continued, and therefore, in such circumstances  there was no requirement of obtaining any consent of the alleged wife. Much emphasis has been laid upon the statement of Smt. Pushpa Devi, where she has acknowledged that she heard about the deceased having adopted a son in the year 2002. According to the learned counsel, in peculiar facts and circumstances of the case, the plaintiff had been able to establish his case and the dismissal of the suit by both the courts below is perverse.

Having heard the learned counsel for the plaintiff-appellant and after having perused the material and documents brought on record, this Court finds that the findings returned by the courts below on the issue of adoption are concluded purely by findings of fact, which are not required to be reappraised by this Court in the instant appeal under section 100 C.P.C. So far as the provisions of Hindu Adoption and Maintenance Act, 1956 are concerned, section 7 thereof is relevant for the present purpose, which is reproduced:-

"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:

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."

In the facts of the present case, a finding based upon appreciation of fact has been returned by both the courts below, which is not shown to be perverse or erroneous that defendant No. 3 is the legally wedded wife of the deceased, Jagdish Saran. In view of such finding, the consent on the part of the wife was mandatory before the plaintiff could have been taken in adoption by Jagdish Saran. It is the consistent case of defendant No.3, who is the wife of the deceased that plaintiff had not been taken in adoption and she had not consented to plaintiff's adoption. There is no evidence worth consideration available on record to show that Smt. Pushpa Devi had consented to the adoption of plaintiff by the deceased. Appellate court has relied upon the decision of the M.P. High Court in Bholu Ram vs. Ramlal AIR 1989 MP 198, wherein it has been stated that except for the categories specified in the proviso itself, the requirement of consent by the wife is mandatory. Admittedly, in the facts of the present case, it is not the plaintiff's case that the wife had either renounced the world or had ceased to be a Hindu or had been declared by a court of competent jurisdiction to be of unsound mind. In the absence of case falling in excepted category  of the proviso, the consent of wife was mandatory, which is not shown to exist in the facts of the present case. Not much will turn on the statement of the wife that she  heard about adoption having taken place in the year 2002, inasmuch as the consent has to be before the Act of adoption itself, by virtue of the plain reading of the provisions itself. The adoption is claimed to have taken place much prior to  the year 2002, i.e. sometime in the year 1989/99.  The statement of  wife therefore would not amount to nor can be construed as a act of consent on her part for the adoption. The findings returned by the appellate court on the aspect of applicability of proviso to section 7 has not been shown to be not applicable in the facts of the present case once that be so, this ground itself is sufficient for the dismissal of the plaintiff's case. Law is otherwise settled that proviso to section-7 of the Act is mandatory. Hon'ble Supreme Court in Ghisalal vs Bhapubai reported in 2011 (2) SCC 298 had clearly held that consent cannot be inferred and has to be in writing or reflected by an affirmative or positive act voluntarily and willingly by her. After considering the provisions of section 6 and 7 of the Hindu Adoption and Maintenance act 1956, it was held as under in para 23 to 26 of the judgment:-

"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. 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 26 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 27 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, 28 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."

Although there are other issues, which have been relied upon  by the courts  below including the issue with regard to adoption not being in consonance with section 16 of Hindu Adoption and Maintenance Act, but all such issues are not required to be deliberated any further in view of the findings already returned above with regard to violation of proviso to section-7.

In view of the discussions made above, this Court finds that the judgment and decree passed by both the courts below are concluded by findings of fact, which are not shown to be erroneous or perverse. No substantial question of law therefore arises for consideration of the present appeal, which accordingly fails and is dismissed in limine.

Order Date :- 18.8.2015

Sumaira