Smt. Sushma And Another vs State Of U.P. And 5 Others
2022 Latest Caselaw 21901 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Reserved on 19.11.2022 
 
							Delivered on 20.12.2022
 

 
Case :- WRIT - B No. - 2753 of 2022
 

 
Petitioner :- Smt. Sushma And Another
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Rahul Mishra,Abhishek Mishra,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Ayub Khan,Deena Nath,Deepak Kumar
 

 
Hon'ble Siddharth,J.

1. Heard Sri R.C. Singh, learned Senior Counsel, assisted by Sri Rahul Mishra, learned counsel for the petitioner; learned Standing Counsel appearing on behalf of State-respondents and Sri Rahul Sripat, learned Senior Counsel, assisted by Sri Ayub Khan and Sri Deena Nath, learned counsel for respondent nos. 5 & 6.

2. This writ petition has been filed challenging the judgement and order dated 30.9.2022 passed by the Deputy Director of Consolidation Officer, Baghpat, in Revision No.1280 of 2022; order dated 31.5.2022 passed Settlement Officer of Consolidation, Baghpat, in Appeal No.2019541108000003/13 and order dated 20.12.2019 passed by Consolidation Officer, Baghpat, in Case No.4.

3. The brief facts of the petition are that chak no.421 are recorded in the name of Chandrabhan, who is adoptive father of the petitioner no.1, namely, Sunil Kumar and grand-father of petitioner no.2. Since Chandrabhan had no son, he treated his nephew, Sunil, as his son and with consent of his wife, Smt. Rajbala, he adopted Sunil Kumar, who was minor, vide registered adoption deed dated 7.3.1990. Chandrabhan also executed a registered Will dated 7.3.1990 in favour of Sunil Kumar in the presence of witnesses. Smt. Rajbala, adoptive mother of Sunil Kumar, had uncordial relationship with her husband, Chandrabah and she used to stay at her parental home and did not looked after her husband, Chandrabhan. Sunil Kumar used to take care of Chandrabha, but Chandrabhan died in May, 1990 leaving behind Sunil Kumar as his legal heir and representative. Sunil Kumar adopted son of late Chandrabhan, made an application before the Assistant Consolidation Officer for recording his name over chak no. 421 in place of his father, Chandrabhan. Smt. Rajbala also filed such an application on 16.5.1990 praying for recording her name over Chak No. 421. During the pendency of the aforesaid application, Rajbala entered into a compromise with Chandrakiran, biological father of Sunil Kumar and Consolidation Officer, Baghpat, directed that the name of Rajbala be recorded over chak No. 421. Aggrieved by the order dated of Consolidation Officer, Baghpat, an appeal no.358 was preferred by Sunil Kumar before the Settlement Officer of Consolidation, Baghpat, who vide order dated 05.12.1995 allowed the appeal and remanded the matter for fresh decision before the Consolidation Officer, Baghpat. Smt. Rajbala challenged the order dated 05.12.1995 passed by Settlement Officer of Consolidation, Baghpat before the Deputy Director of Consolidation, Baghpat, who dismissed the same on 19.6.1997 confirming the order of Settlement Officer of Consolidation of remand. The orders passed by the Settlement Officer of Consolidation and Deputy Director of Consolidation, Baghpat, were challenged before this Court vide Writ-B No.32206 of 1997 and the same was dismissed by the order dated 15.11.20211. Thereafter the proceedings before Consolidation Officer began and during the pendency of proceeding, on 20.10.2014 Sunil Kumar went missing at the age of 48 years and complaint in this regard was filed before the police on 23.10.2014. The petitioners, who are the wife and son of Sunil Kumar, made an application before the Consolidation Officer for substitution of their names in his place and given opportunity to lead evidence, which was rejected on 09.12.2015 and was challenged before the Deputy Director of Consolidation by way of revision, which was allowed by the order dated 04.1.2017. Before the Consolidation Officer, the will and adoption deed in favour of Sunil Kumar were proved by the witnesses, but by the judgment and order dated 20.12.2019 Consolidation Officer rejected the claim of the petitioners and directed that name of Rajbala to be recorded in the revenue record. The petitioners preferred an appeal no.259 of 2019 before the Settlement Officer of Consolidation against the order of Consolidation Officer dated 20.12.2019. By the order dated 24.12.2019, the Settlement Officer of Consolidation stayed the order of Consolidation Officer and directed the parties to maintain status quo. After the lapse of 7 years of Sunil Kumar going missing, original suit no.210 of 2022 was filed before the civil court for declaration about his civil death. Settlement Officer of Consolidation vide judgement and order dated 31.5.2022 dismissed the appeal of the petitioners. They preferred a revision before the Deputy Director of Consolidation. The respondents filed caveat application and had also come to know of filing of revision before the D.D.C., Baghpat, but did not appeared at the time of hearing of revision and respondent no.5, Smt. Rajbala, without her name being recorded in the revenue record, executed sale deed dated 03.6.2022 of entire chak no.421 in favour of respondent no.6, Naresh Kumar. The Deputy Director of Consolidation did not passed any order and the respondent no.6 tried to take possession of the land in dispute from the petitioners. Hence the petitioners preferred Writ- B No. 1872 of 2022 before this Court, which was disposed of directing the revisional court to decide the stay application of the petitioners, within three weeks and also revision within six months and in the meanwhile parties were directed to maintain status quo with respect to the disputed property. During the pendency of revision, respondent no.6, who is a land mafia, approached the Consolidation Commissioner, Lucknow, and report was called from Settlement Officer of Consolidation dated 30.7.2022 stating that there is no interim order passed in the revision and hence he directed that the possession of the chak no. 421 may be delivered to Smt. Rajbala. The Deputy Director of Consolidation by the impugned order dated 30.9.2022 dismissed the revision of the petitioners of upholding the orders passed by the Settlement Officer of Consolidation and Consolidation Officer and hence this writ petition before this Court.

4. Learned Senior Counsel for the petitioners has submitted that Will dated 7.3.1990 is registered document and was duly proved as per Section 63 (C) and 68 of Indian Evidence Act. It has not been challenged by respondent no.5 before any competent court of law. The adoption deed is also valid as per Section 16 of Hindu Adoption and Maintenance Act, 1956, but claim of the husband of petitioner no.1 on their basis has been turned down by rejection of objection of petitioners under Section 9A(2). Sunil Kumar went missing on 20.10.2014 hence the suit for declaration has also been filed on 21.10.2021. The impugned orders do not contain any point for determination; decision thereon and reasons in support of decision. By virtue of provision contained under Section 41 of the U.P.C.H. Act, 1953, the provisions of Chapter IX of U.P. Land Revenue Act, 1901 have been made applicable. The enactment specified in First Schedule have been repealed by Section 230 of the U.P. Code, 2006, but previos operation of any such enactment or anything duly done or suffered thereunder are saved.

5. He has finally submitted that the under Article 226 of the Constitution of India, this court cannot not sit in appeal over the decisions of the courts below, but only examine the decision making process as held by Hon'ble Supreme Court in the case of State of U.P. and others Vs. Maharaj Dharmander Prasad Singh, AIR 1989 SC 997.

6. Learned Senior Counsel for contesting respondent nos. 5 and 6 has submitted that the proceedings giving rise to the present petition were initiated under Section 12 of U.P.C.H. Act by Sunil Kumar. While Sunil Kumar was minor, his natural father, Chandra Kiran, entered into compromise with respondent no.5 and accordingly her name was directed to be recorded in place of her husband, Chandbhan. Sunil Kumar preferred highly belated appeal after attaining majority in 1993 disputing aforesaid compromise, which was allowed, but the Settlement Officer of Consolidation remanded the matter for decision afresh to the Consolidation Officer. Sunil Kumar went missing during the pendency of the proceedings before Consolidation Officer. The petitioners were substituted in place of Sunil Kumar and the Consolidation Officer found that adoption of Sunil Kumar was not valid since the consent of his wife as per under Section 7 of Hindu Adoption and Maintenance Act, 1956 was not there as clear from judgement and order dated 20.12.2019 of the Consolidation Officer. The Consolidation Officer relied upon the judgement of Apex Court while arriving at such a finding. In Appeal, the Settlement Officer of Consolidation discussed the entire evidence and legal position regarding adoption and passed order dated 31.5.2022. The revisional court also found that the Will and adoption deed were of the same date and were not valid and rightly rejected the revision. Learned Senior Counsel for the petitioner has attempted to take recourse of rule 26 of U.P.C.H. Rules misleading this Hon'ble Court that the proceedings were initiated under Section 9 (A) 2 of U.P.C.H. by Sunil Kumar. The proceedings under Section 12 of U.P.C.H. Act was initiated by him which are merely for mutation like the proceeding under Section 34 of U.P. Land Revenue Act. The findings of fact recorded by all the three Consolidation Courts are based on proper appreciation of law and evidence and are in accordance with law and do not call for any interference by this Court. Reliance has been placed upon the following judgements by learned Senior Counsel for respondent nos. 5 & 6:-

1. Ghisalal and others Vs. Dhapubai, AIR 2011 SC 644

2. Brajendra Singh Vs. State of M.P. and others, AIR 2008 SC 1056

3. Deen Dayal Vs. Sanjeev Kumar, AIR 2009 RAJ 22

7. Before proceeding to examine the rival submissions, this Court finds it relevant to refer to relevant provisions of Hindu Adoption and Maintenance Act, 1956, for deciding the issue of validity of the disputed adoption deed. The same are 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:

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 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." 
 
8.	The aforesaid provisions of the Act have been explained by Apex Court in the case of Ghisalal and others Vs. Dhapubai (Dead) by L.Rs. And others, AIR 2011 SC644 as follows:-
 

"7. 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 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 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.

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 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 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.

9. From the consideration of relevant law and the enunciation of the Apex Court, it is clear that 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 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. In the present case neither there was prior consent nor subsequent consent of wife of Chandrabhan to the adoption of Sunil Kumar. 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. It is crystal clear that adoption of Sunil Kumar was valid.

10. Now, adverting to the arguments advanced by the learned Senior Counsel for the parties, this Court finds that the Senior Counsel for the petitioners has only submitted that the judgments of the consolidation authorities do not contain the points of determination, decision thereon and reasons in support of decision. His thrust of argument is that this Court cannot sit in appeal over the decision but can only consider the correctness of decision making process. He has not submitted anything against the findings of all the Courts below regarding the validity of the disputed adoption deed with reference to relevant law.

11. However, the learned Senior Counsel for the respondent nos. 5 & 6 has clearly submitted that from the findings recorded by the Courts below it is clear that the adoption deed in dispute was executed without the consent of contesting respondent, Smt. Rajbala, and was therefore void in view of Section 7, only proviso, which provides that adoption by Hindu male without consent of his wife cannot be done.

12. This Court finds that in present case the petitioners have failed to prove that the consent of the wife of alleged adoptive father Chandrabhan, Smt. Rajbala was validly obtained by her husband before adopting Sunil Kumar, the consolidation courts considered the oral and documentary evidence on record in arriving at such a finding. Even if it is assumed that procedure provided under U. P. Land Revenue Act, 1901 was not followed by the consolidation courts, the petitioners have failed to demonstrate that the legal requirement of Section 7, only proviso was fulfilled prior to execution of the adoption deed by Chandrabhan. By simply being a registered document, the court cannot accept it to legal and binding when it has been clearly proved before the Courts below that it was not in accordance with law. There was no dispute nor is between the parties regarding the facts of the case. The only dispute is regarding the law which has been clearly applied to the facts of the case by all the courts below. Hence mere non-framing of points of determination by the courts below is immaterial.

13. The will in dispute was executed by Chandrabhan in favour of his adopted son Sunil Kumar. Once it is found that adoption deed of Sunil Kumar was void and Sunil Kumar is not the adopted son of Chandrabhan, the validity of will cannot be assumed. Will was a void document and deserves to be ignored by the consolidation courts even though not challenged before any court. Argument of learned Senior Counsel for parties to the contrary is not correct. Hence, no benefit of will can accrue to the petitioners once they failed to prove due adoption of Sunil Kumar by Chandrabhan.

14. No interference with the impugned orders is warranted.

15. Writ petition is dismissed. However, there shall be no order as to costs.

Order Date :- 20.12.2022

Ruchi Agrahari