specific Relief Act, 1963 — Section 34 — Suit for declaration

January 20th, 2014

pecific Relief Act, 1963 — Section 34 — Suit for declaration — Concurrent findings of courts below regarding non establishment of adoption, Effect of — Plaintiff/appellant, alleging to be adoptive son of defendant no. 1, filed a suit for declaration that the gift deed alleged to have been executed by defendant No.1 in favour of defendant Nos. 2 and 3, in respect of the suit land is illegal, void, ineffective and is to be set aside — Trial court recorded its findings holding that the plaintiff is the legally adopted son of deceased defendant No.1 but suit property was not the ancestral property; hence, defendant no. 1 was entitled to alienate the property and dismissed the suit — First appellate court and High Court came to the conclusion that neither the custom has been proved nor the factum of adoption has been established by conclusive evidence — Plaintiff-appellant filed appeals by special leave — Held, evidence brought on record goes against the plaintiff-appellant on the basis of which it cannot be held that there was a valid adoption — Plaintiff-appellant impleaded his adoptive father as defendant No.1 — If the adoptive father himself asserted that he never took the appellant in adoption, the court cannot come to the conclusion that appellant was taken in adoption by defendant No.1 — Defendant No.1 adoptive father denied each and every allegation and claimed to be in cultivating possession of the land and further denied that the appellant ever resided with him in his house or helped him in cultivating the land — The evidence, goes against the appellant and, therefore, it cannot be held that there is perversity in the judgment passed by the two appellate courts — Appeals dismissed — Hindu Adoption and Maintenance Act, 1956 — Sections 10 & 11 — Adoption.

(Para 15 to 18)

HELD: The plaintiff-appellant impleaded his adoptive father Sarup Singh as defendant No.1 and alleged that he was adopted by defendant No.1. Curiously enough, defendant No.1, the so called adoptive father, contested the suit by filing written statement making an averment that he never adopted him as his son. If the adoptive father himself asserted that he never took the appellant in adoption, the court cannot come to the conclusion that appellant was taken in adoption by defendant No.1. It is strange enough that when during the pendency of the case defendant No.1 adoptive father died the plaintiff-appellant who claims himself to be the adopted son has not even performed the last ritual and other ceremonies of the deceased. It has also come in evidence that during the period when the alleged adoption took place, the appellant’s natural father was Sarpanch of the village and the register which was produced in court to show that there was some entry with regard to adoption remained with the said Sarpanch. Apart from that, defendant No.1 adoptive father in his detailed written statement has denied each and every allegation and claimed to be in cultivating possession of the land and further denied that the appellant ever resided with him in his house or helped him in cultivating the land. The evidence, in our view, goes against the appellant and, therefore, it cannot be held that there is perversity in the judgment passed by the two appellate courts.

(Para 17)

Harnek Singh v. Pritam Singh [Bench Strength 2], Civil Appeal Nos. 3895-3896/2013 (Arising out of S.L.P. (C) Nos. 33612-33613/2009) (17/04/2013), 2013(3) SCV(Civil) 128: 2013 AIR(SC) 3789: 2013(4) SCC 458: 2013(4) JT 451: 2013(6) SCALE 34: 2013(6) SLT 28 [Surinder Singh Nijjar, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 18 — Suit for maintenance — Compromise towards permanent alimony and giving up future claim for maintenance under Section 125 Cr.P.C. proceedings — Maintainability of — Compromise entered into by husband and wife under Order 23 Rule 3 of CPC, agreeing for a consolidated amount towards permanent alimony, thereby giving up any future claim for maintenance, accepted by the Court in a proceeding under Section 125 Cr.P.C. — Issue is whether it would preclude the wife from claiming maintenance in a suit filed under the Act, 1956 — Family Court held that compromise entered into between the parties would not be bar in entertaining a suit and decreed the suit holding that the respondent is entitled to monthly maintenance from the defendant husband — High court affirmed the same — Challenged by husband — Held, Court in complete agreement with the reasoning of the Family Court and confirmed by High Court that the suit under Section 18 of the Act is perfectly maintainable, in spite of the compromise reached between the parties under Order 23 Rule 3 C.P.C. — Proceeding under Section 125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 Cr.P.C. by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act — Therefore, no error in the view taken by the Family Court, which has been affirmed by the High Court — Petition dismissed in limine — Contract Act, 1872 — Section 25 — Agreement opposed to public policy — Enforceability of — Civil Procedure Code, 1908 — Order 23 Rule 3 — Compromise for permanent alimony — Criminal Procedure Code, 1973 — Section 125 — Compromise for permanent alimony, Effect of.

(Para 9 & 11)

Nagendrappa Natikar v. Neelamma [Bench Strength 2], Special Leave Petition (Civil) No. 11800/2013 (Arising Out/C.C. No. 1297/2012) (15/03/2013), 2013(2) SCV(Civil) 312: 2013 AIR(SC) 1541: 2013(4) JT 120: 2013(3) SCALE 561: 2013(2) Supreme 424: 2013(4) SLT 26: 2013 CrLJ 2060 [K.S. Radhakrishnan, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 3(a) — Custom — Distinction between general custom and special custom — Conditions for applicability of custom — Discussed — Hindu Law — Custom as source of Hindu Law — Required conditions for.

Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938, Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147; T. Saraswati Ammal v. Jagadambal & Anr., AIR 1953 SC 201; Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041; Siromani v. Hemkumar & Ors., AIR 1968 SC 1299, amalakshmi Ammal v. Sivanatha Perumal Sethuraya, 14 Moo. Ind. App. 570, Salekh Chand (Dead) thr. Lrs. v. Satya Gupta & Ors., (2008)13 SCC 119 & Bhimashya & Ors. v. Smt. Janabi @ Janawwa, (2006)13 SCC 627, Referred.

(Para 7 & 9)

HELD: Custom is an established practice at variance with the general law. A custom varying general law may be a general, local, tribal or family custom. A general custom includes a custom common to any considerable class of persons. A custom which is applicable to a locality, tribe, sect or a family is called a special custom.

Custom is a rule, which in a particular family, a particular class, community, or in a particular district, has owing to prolonged use, obtained the force of law. Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it.

Such custom must be ancient, uniform, certain, continuous and compulsory. No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. He who relies upon custom varying general law, must plead and prove it. Custom must be established by clear and unambiguous evidence.

(Para 7)

A custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting. A custom cannot be extended by analogy or logical process and it also cannot be established by a priori method. Nothing that the Courts can take judicial notice of needs to be proved. When a custom has been judicially recognised by the Court, it passes into the law of the land and proof of it becomes unnecessary under Section 57(1) of the Evidence Act, 1872. Material customs must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the Court become so notorious, that the Courts take judicial notice of it. (See also: Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147; T. Saraswati Ammal v. Jagadambal & Anr., AIR 1953 SC 201; Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041; and Siromani v. Hemkumar & Ors., AIR 1968 SC 1299).

(Para 9)

Laxmibai v. Bhagwantbuva [Bench Strength 2], Civil Appeal No. 2058/2003 (29/01/2013), 2013(2) SCV(Civil) 357: 2013 AIR(SC) 1204: 2013(4) SCC 97: 2013(2) JT 362: 2013(2) SCALE 106: 2013(1) Supreme 418: 2013(1) SLT 644 [B.S. Chauhan, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 — Adoption — Purpose of — Held, adoption is made to ensure spiritual benefit for a man after his death — The primary object of adoption was to gratify ancestors’ by means of annual offerings, and therefore it was considered necessary that the offerer, must as far as possible be a reflection of the real descendant, and must look as much like a real son as possible, and must certainly not be one, who could never have been a son.

Gherulal Parakh v. Mahadeodas Maiya, AIR 1959 SC 781 & V.T.S. Chandrashekhara Mudaliar (Dead thr. Lrs.) & Ors. v. Kulandaivelu Mudaliar, AIR 1963 SC 185, Referred.

(Para 13)

Laxmibai v. Bhagwantbuva [Bench Strength 2], Civil Appeal No. 2058/2003 (29/01/2013), 2013(2) SCV(Civil) 357: 2013 AIR(SC) 1204: 2013(4) SCC 97: 2013(2) JT 362: 2013(2) SCALE 106: 2013(1) Supreme 418: 2013(1) SLT 644 [B.S. Chauhan, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 16 & 3(a) — Adoption — Natural parents signed the deed as attesting witness rather than executors — Conflict between substantial justice and technical considerations, effect — Deed of adoption complying requirements under Section 16 — Adoption of son by appellant in relation to carrying the Palki and Padukas — Suit against respondents seeking a decree of perpetual injunction preventing them from causing any obstruction or interference in the exercise of their exclusive rights — Trial court decreed the suit, holding that the adoption by appellant was valid — First Appellate Court reversed the judgement — Appellants preferred Second Appeal, which was dismissed by the High Court — Challenged — Held, in view of the fact that the defendants/respondents have never made any reference with respect to the existence of a custom prohibiting the adoption of a child from outside the family, either in the notice served by them or in their written statement, the mere fact that it may only be for the sake of convenience, that a child was taken in adoption from within the same family on each of the four occasions over a period of 375 years, would not be sufficient to establish the existence of a custom in this regard, for the reason that custom cannot be proved by way of logic or analogy — Thus we hold, that the finding recorded by the Appellate Courts on this issue, is not based on any evidence, and that the appellate courts have committed an error in holding that the defendants/respondents have successfully proved the existence of such special family custom — Appellate courts have failed to appreciate that a negative fact cannot be proved by adducing positive evidence — Mere technicalities cannot defeat the purpose of adoption, particularly when the defendants/respondents have not made any attempt to disprove the document — No reference was ever made either by them, or by their witnesses, to this document i.e. registered adoption deed — Natural parents of the adoptive child had acted as witnesses, and not as executors of the document — Undoubtedly, adoption disturbs the natural line of succession, owing to which, a very heavy burden is placed upon the propounder to prove the adoption — However, this onus shifts to the person who challenges the adoption, once a registered document recording the adoption, is brought before the court — This aspect must be considered taking note of various other attending circumstances i.e., evidence regarding the religious ceremony (giving and taking of the child), as the same is a sine qua non for valid adoption — Appellate court has erred by considering the irrelevant material, while the most relevant evidence, i.e., the adoption ceremony and the adoption deed, have been disregarded on the basis of mere surmises and conjectures — The correctness or authenticity of adoption deed is not disputed — What is disputed is that the natural parents of adoptive child who were definitely executing parties of the deed have signed as witnesses alongwith 7 other witnesses — In such a fact-situation, by gathering the intention of the parties and by reading the document as a whole and considering its purport, it can be concluded that the adoption stood the test of law — We think that cause of justice would be served, instead of being thwarted, where there has been substantial compliance of the legal requirements, specified in Section 16 of the Act 1956 — When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best — Judgments and decrees of the appellate courts are set aside and judgment and decree of the trial court is restored — Consequently, appeal is allowed — Civil Procedure Code, 1908 — Section 100 — Second appeal — Hindu Law — Custom as source of Hindu Law — Proof by way of logic or analogy, scope — Practice and Procedure — Proof of negative fact — Adducing positive evidence, permissibility.

S.T. Krishnappa v. Shivakumar & Ors., (2007)10 SCC 761, Debi Prasad (dead) by L.Rs. v. Smt. Tribeni Devi, AIR 1970 SC 1286, Mst. Deu & Ors. v. Laxmi Narayan & Ors., (1998)8 SCC 701 & Atluri Brahmanandam (D), Thr. LRs. v. Anne Sai Bapuji, AIR 2011 SC 545, Referred.

(Para 15, 23 & 40)

Laxmibai v. Bhagwantbuva [Bench Strength 2], Civil Appeal No. 2058/2003 (29/01/2013), 2013(2) SCV(Civil) 357: 2013 AIR(SC) 1204: 2013(4) SCC 97: 2013(2) JT 362: 2013(2) SCALE 106: 2013(1) Supreme 418: 2013(1) SLT 644 [B.S. Chauhan, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 7 and proviso to — Adoption of child — Validity of — Consent of wife for — Existence — Determination — Decree of partition sought by appellant/plaintiff on basis of his adoption to `G’ challenging the gift deed and will executed by `G’ in favour of his wife, the respondent — Decreed upto High Court holding the adoption of appellant as valid — Justification — Held, court below misdirected themselves in deciding issue of consent of respondent- wife to adoption of appellant — Nothing to show any active participation of respondent-wife in adoption ceremonies to draw an inference of her consent to adoption — Concurrent finding of court below holding adoption as valid and with consent of respondent-wife is perverse as the same is based on unfounded assumptions and pure conjectures — Impugned order of court below is unsustainable and to be set aside and suit of appellant is dismissed — His appeal also accordingly be dismissed.

HELD: In our view, the trial Court, the lower appellate Court and the learned Single Judge of the High Court misdirected themselves in deciding the issue relating to Dhapubai’s consent to the adoption of Ghisalal by Gopalji. All the Courts held that the consent of Dhapubai can be presumed because she was present in the ceremonies of adoption. The learned Single Judge went a step further and observed that failure of Dhapubai to challenge the adoption deed is a strong circumstance which goes to show that she had consented to the adoption of Ghisalal by her husband. Unfortunately, all the Courts completely ignored that presence of Dhapubai in the ceremonies of adoption was only as a mute spectator and not as an active participant. Neither Ghisalal nor any of the witnesses examined by him stated that before taking Ghisalal in adoption, Gopalji had consulted Dhapubai or taken her in confidence and the latter had given her consent or agreed to the adoption of Ghisalal or that she had taken prominent part in the adoption ceremonies. All of them made a parrot like statement that Dhapubai was sitting with other women below the platform (chabutra). By no stretch of imagination, this could be equated with her active participation in the adoption ceremonies so as to enable the Courts to draw an inference that she had given consent for the adoption of Ghisalal.

Another grave error committed by all the Courts is that they have presumed the consent of Dhapubai by relying upon the contents of the deed of adoption (Exhibit P-1) in which Gopalji is said to have recorded that it was his and his wife’s esteemed desire to take Ghisalal in adoption. It was neither the pleaded case of Ghisalal nor any evidence was produced by him to prove that Dhapubai was a signatory to Exhibit P-1 or that she was present at the time of execution and/or registration of Exhibit P-1. Therefore, the contents of Exhibit P-1 could not be made basis for assuming that Dhapubai was a party to the adoption of Ghisalal.

The so called failure of Dhapubai to challenge Exhibit P-1 cannot be used against her because Ghisalal did not adduce any evidence to show that after execution of the deed of adoption, Dhapubai was made aware of the same or a copy thereof was made available to her. In the absence of such evidence, it cannot be assumed that Dhapubai was aware of the execution and registration of the deed of adoption and she deliberately omitted to challenge the same.

While analyzing and evaluating the evidence of the parties, the Courts below failed to notice an important lacuna in Ghisalal’s case, that is, non examination of Kishanlal who, as per Ghisalal’s own version had not only taken active part in the ceremonies of adoption but was also a signatory to the deed of adoption. The statements of PW-7 Ramchander Sharma, Advocate and his clerk PW-8 Imdad Ali show that the written statement in the suit filed by Pannalal was drafted under the instructions of Kishanlal and he had signed the same as guardian of Ghisalal. This shows that Kishanlal had played the most pivotal role in the adoption of Ghisalal by Gopalji. Therefore, he was the best person who could support Ghisalal’s plea that he was taken in adoption by Gopalji and Dhapubai had given consent for the same. No explanation has been given why Kishanlal was not examined despite the fact that he was not only actively involved at various stages of the adoption but was also instrumental in Ghisalal’s admission in the school and defending the case filed by Pannalal. If the statements of Ghisalal and Devram are read in conjunction with the fact that written statement in Suit No.76A of 1964 Pannalal v. Ghisalal and another was filed by Kishanlal in February, 1966, there remains no doubt that testimony of Kishanlal was most crucial and yet he was not examined. The trial Court did take cognizance of this omission but brushed aside the same with a cryptic observation that no objection was raised from the side of the defendants that plaintiff was not given in adoption by his natural father. The lower appellate Court and the learned Single Judge of the High Court did not even advert to this important lacuna which, in our view, would have made any person of reasonable prudence to doubt the bona fides of Ghisalal’s claim that he was adopted by Gopalji with the consent of Dhapubai.

In view of the above discussion, we hold that the concurrent finding recorded by the trial Court and the lower appellate Court, which was approved by the learned Single Judge of the High Court that Gopalji had adopted Ghisalal with the consent of Dhapubai is perverse inasmuch as the same is based on unfounded assumptions and pure conjectures. We further hold that Dhapubai had succeeded in proving that the adoption of Ghisalal by Gopalji was not valid because her consent had not been obtained as per the mandate of the proviso to Section 7 of the 1956 Act. As a corollary, it is held that the suit filed by Ghisalal for grant of a decree that he is entitled to one half share in the properties of Gopalji was not maintainable and the findings recorded by the trial Court, the lower appellate Court and/or the High Court on the validity of Gift Deeds dated 29.11.1944 and 22.10.1966, Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai and Sale Deed dated 19.1.1973 executed by her in favour of Sunderbai are liable to be set aside.

In the result, Civil Appeal Nos.6375-6376 of 2002 are allowed. The judgments and decrees passed by the trial Court, the lower appellate Court and the High Court are set aside and the suit filed by Ghisalal is dismissed. As a sequel to this, Civil Appeal Nos.6373-6374 of 2002 are dismissed.

Ghisalal v. Dhapubai [Bench Strength 2], Civil Appeal Nos. 6373-6374/2002 (12/01/2011), 2011(1) SCV(Civil) 342: 2011 AIR(SC) 644: 2011(2) SCC 298: 2011(1) JT 213: 2011(1) SCALE 325: 2011(1) Supreme 297: 2011(1) SLT 348 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 7 — Adoption by male Hindu — Consent of wife — Existence of — Requirements and presumption of — Discussed.

HELD: 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.

Ghisalal v. Dhapubai [Bench Strength 2], Civil Appeal Nos. 6373-6374/2002 (12/01/2011), 2011(1) SCV(Civil) 342: 2011 AIR(SC) 644: 2011(2) SCC 298: 2011(1) JT 213: 2011(1) SCALE 325: 2011(1) Supreme 297: 2011(1) SLT 348 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 8 & 11 — Adoption by a female Hindu — Permissibility of — Scope — Held, 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 — 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.

(Para 19)

Ghisalal v. Dhapubai [Bench Strength 2], Civil Appeal Nos. 6373-6374/2002 (12/01/2011), 2011(1) SCV(Civil) 342: 2011 AIR(SC) 644: 2011(2) SCC 298: 2011(1) JT 213: 2011(1) SCALE 325: 2011(1) Supreme 297: 2011(1) SLT 348 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 7 — Adoption by male Hindu — Consent of wife for — Necessity — Scope and object of — Discussed.

HELD: 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.

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.

Ghisalal v. Dhapubai [Bench Strength 2], Civil Appeal Nos. 6373-6374/2002 (12/01/2011), 2011(1) SCV(Civil) 342: 2011 AIR(SC) 644: 2011(2) SCC 298: 2011(1) JT 213: 2011(1) SCALE 325: 2011(1) Supreme 297: 2011(1) SLT 348 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 10 & 16 — Adoption of person more than 15 years — Validity of — Cogent and reliable evidence that there is a custom in “Kamma” community of Andhra Pradesh for adoption of a boy even above age of 15 years — Said custom and said adoption also recorded in a registered deed of adoption — Said registered adoption deed went unrebutted and unchallenged — Above said custom has been recognised by Andhra Pradesh High Court — Thus the adoption of respondent is legal and valid — Evidence Act, 1872 — Section 57.

(Paras 13 to 17)

Atluri Brahmanandam v. Anne Sai Bapuji [Bench Strength 2], Civil Appeal No. 9714/2010 (Arising out of SLP (C) No. 28504/2008) (18/11/2010), 2011 AIR(SC) 545: 2010(14) SCC 466: 2010(12) JT 441: 2010(12) SCALE 157: 2010(7) Supreme 868: 2010(8) SLT 398 [Mukundakam Sharma, J.: Anil R. Dave, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 — Document recording an adoption — Registration thereof — Presumption by court in case of — Held, If there is any document purporting to record an adoption made and is signed by the person giving as well as the person taking the child in adoption and is registered under any law for the time being in force and if it is produced in any Court, the Court would presume that the adoption has been made in compliance of the provisions of the Act unless and until it is disproved.

(Para 12)

Atluri Brahmanandam v. Anne Sai Bapuji [Bench Strength 2], Civil Appeal No. 9714/2010 (Arising out of SLP (C) No. 28504/2008) (18/11/2010), 2011 AIR(SC) 545: 2010(14) SCC 466: 2010(12) JT 441: 2010(12) SCALE 157: 2010(7) Supreme 868: 2010(8) SLT 398 [Mukundakam Sharma, J.: Anil R. Dave, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 10 — Person capable of being adopted — Requirement of — Held, by virtue of section 10(iv), a person to be adopted should not have completed the age of 15 years. But there is also an exception provided therein to the aforesaid required qualification which provides that if there is a custom or usage applicable to the parties permitting persons who have completed the age of 15 years being taken in adoption, such a person could also be validly adopted.

(Para 12)

Atluri Brahmanandam v. Anne Sai Bapuji [Bench Strength 2], Civil Appeal No. 9714/2010 (Arising out of SLP (C) No. 28504/2008) (18/11/2010), 2011 AIR(SC) 545: 2010(14) SCC 466: 2010(12) JT 441: 2010(12) SCALE 157: 2010(7) Supreme 868: 2010(8) SLT 398 [Mukundakam Sharma, J.: Anil R. Dave, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 26 — Custody of child — Custody order — Alteration and modification of — Permissibility of — Scope — Held, custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child — Guardians and Wards Act, 1890 — Sections 7 & 17 — Hindu Adoption and Maintenance Act, 1956 — Sections 6 & 13.

(Para 16)

Vikram Vir Vohra v. Shalini Bhalla [Bench Strength 2], Civil Appeal No. 2704/2010 (Arising out of SLP (C) No. 19935/2009) (25/03/2010), 2010 AIR(SC) 1675: 2010(3) SCR 775: 2010(4) SCC 409: 2010(3) JT 213: 2010(3) SCALE 187: 2010(2) Supreme 557: 2010(2) SLT 688 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 26 — Custody of child — Determination — Consideration required for — Held, the welfare of child’s is of paramount consideration in matters relating to child custody and to be given a primacy even over statutory provisions — Guardians and Wards Act, 1890 — Sections 7 & 17 — Hindu Adoption and Maintenance Act, 1956 — Sections 6 & 13.

Mausami Moitra Ganguli vs. Jayant Ganguli, (2008) 7 SCC 673, Referred.

(Para 14)

Vikram Vir Vohra v. Shalini Bhalla [Bench Strength 2], Civil Appeal No. 2704/2010 (Arising out of SLP (C) No. 19935/2009) (25/03/2010), 2010 AIR(SC) 1675: 2010(3) SCR 775: 2010(4) SCC 409: 2010(3) JT 213: 2010(3) SCALE 187: 2010(2) Supreme 557: 2010(2) SLT 688 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Compassionate employment — Denial of, valid, adoption of respondent by deceased, lack of proof of, effect of — Succession certificate — CS, an employee posted as had master was died unmarried — `GS’ is the brother of deceased employee — `GS’ and his son obtained succession certificate — Application of respondent for compassionate appointment by claiming himself as adopted son of deceased-employee — Rejection of claim for compassionate appointment — Despite of rejection order for compassionate appointment passed — Subsequent cancellation of order — Validity — Application for grant of succession certificate was not filed by respondent alone — Factum of adoption was mentioned in application for succession certificate — Even in High Court certificate of respondent’s father name was not mentioned as `CS’ — Adoption of respondent not proved — Succession certificate neither confers any status nor prove any relationship between deceased and the applicant — Cancellation of appointment order is valid — Hindu Adoption and Maintenance Act, 1956 — Section 16 — Evidence Act, 1872 — Section 106.

HELD: We have noticed hereinbefore that in the application for grant of succession certificate, G.S. Sengar was described as his father. Even in the mark sheets which had been drawn up on the basis of the record maintained in the school in which he was studying, his father’s name was G.S. Sengar. It may be correct that for the purpose of proving that the respondent was adopted son of the deceased, a registered deed of adoption was not imperative in character, but then, he was required to prove that datta homan ceremony or compliance of the other statutory conditions for a valid adoption had taken place.

In terms of Section 106 of the Indian Evidence Act, the respondent having special knowledge in regard thereto, the burden of proving the fact that he was adopted by Chittaranjan Singh Sengar was on him. He did not furnish any evidence in that behalf. Even the records clearly show to the contrary.

Legality of grant of a valid appointment was dependant upon the proof that the respondent was the adopted son of Chittaranjan Singh Sengar. He not only failed to do so, the materials brought on record by the parties would clearly suggest otherwise. His application for grant of appointment on compassionate ground was rejected by the Joint Director of Education. He did not question the legality or validity thereof. He, it can safely be said, by suppressing the said fact obtained the offer of appointment from an authority which was lower in rank than the Joint Director, viz., the Deputy Director. When such a fact was brought to the notice of the Deputy Director that the offer of appointment had been obtained as a result of fraud practiced on the Department, he could, in our opinion, cancel the same.

Respondent keeping in view the constitutional scheme has not only committed a fraud on the Department but also committed a fraud on the Constitution. As commission of fraud by him has categorically been proved, in our opinion, the principles of natural justice were not required to be complied with.

The High Court, therefore, must be held to have committed a serious error in passing the impugned judgment.

The very fact that the respondent had filed an application for grant of succession certificate along with his father, showing themselves to be the heirs and legal representatives of the deceased, is itself sufficient proof to show that he did not claim any benefit in regard to the debts of the deceased as his adopted son or otherwise.

State of Chhatisgarh v. Dhirjo Kumar Sengar [Bench Strength 2], Civil Appeal No. 3242/2009 [Arising out of SLP (Civil) No. 6230/2007 (05/05/2009), 2009 AIR(SC) 2568: 2009(7) SCR 1016: 2009(13) SCC 600: 2009(8) JT 407: 2009(8) SCALE 713: 2010(6) SLT 123: 2009 LIC 3011: 2009(7) SLR 140 [S.B. Sinha, J.: Mukundakam Sharma, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 — Adoption — Presumption — Unregistered adoption deed, not carry any presumption of its validity as envisaged under section 16.

State of Chhatisgarh v. Dhirjo Kumar Sengar [Bench Strength 2], Civil Appeal No. 3242/2009 [Arising out of SLP (Civil) No. 6230/2007 (05/05/2009), 2009 AIR(SC) 2568: 2009(7) SCR 1016: 2009(13) SCC 600: 2009(8) JT 407: 2009(8) SCALE 713: 2010(6) SLT 123: 2009 LIC 3011: 2009(7) SLR 140 [S.B. Sinha, J.: Mukundakam Sharma, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 — Valid adoption — Proof — Registered deed of adoption not imperative for the purpose of providing adoption — Person claiming adoption required to prove taking place of `Datta Haman Ceremony’ or compliance of other statutory conditions.

State of Chhatisgarh v. Dhirjo Kumar Sengar [Bench Strength 2], Civil Appeal No. 3242/2009 [Arising out of SLP (Civil) No. 6230/2007 (05/05/2009), 2009 AIR(SC) 2568: 2009(7) SCR 1016: 2009(13) SCC 600: 2009(8) JT 407: 2009(8) SCALE 713: 2010(6) SLT 123: 2009 LIC 3011: 2009(7) SLR 140 [S.B. Sinha, J.: Mukundakam Sharma, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(a) & 13-B — Divorce petition — Transfer of, disposal of matter in terms of settlement — Settlement between parties in Mediation and Conciliation proceedings — Parties to file a joint petition u/s. 13-B of the Act for grant of a decree of divorce on ground of mutual consent — Husband agreed to pay a sum of Rs. 7,00,000/- to the wife towards all her claims — Petition disposed of in terms of settlement arrived at between the parties — Civil Procedure Code, 1908 — Section 24 — Hindu Adoption and Maintenance Act, 1956 — Section 8.

Mitali v. Dababrata [Bench Strength 2], TP (C ) No. 624/2008 (24/04/2009), 2009(6) SCR 1020: 2009(14) SCC 199: 2009(6) SCALE 647 [Arijit Pasayat, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 24 & 13 — Interim maintenance — Enhancement of, disposal of petition for, before disposal of suit for divorce, necessity of — When application for enhancement of maintenance of amount to wife/appellant is pending in the Court, it is the duty of court to go into that question and dispose of the said application before disposal of suit for divorce — Original order granting Rs. 4000/- per month as maintenance to wife — After five years, finding the amount not sufficient for her sustenance, wife filed application seeking enhancement of amount — Parties were married in year 1978 — Husband, a scientist earning more than Rs. 40,000/- per months filed a divorce petition — Wife although highly educated, being housewife, having no source of income — By order dated 30.5.2003, her application u/s 24 was partly allowed — Trial Court awarded her a sum of Rs. 4,000/- per month — In revision, High Court directed the lower court to dispose of matter as expeditiously as possible and also directed the wife not to press enhancement in amount of maintenance till disposal of suit — Held, direction given by High Court to wife not sustainabel — It was the duty of Court to go into the question of maintenance and dispose of the said application before disposal of suit for divorce — Wife held entitled to Rs. 7,000/- per month from the date of filing application u/s 24 — Constitution of India — Article 227 — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Section 18.

HELD: The High Court was not justified in passing the impugned order in the manner it has done. It is not disputed that the application under Section 24 of the Act was partly allowed by the trial Court in the year 2003 i.e. at least five years back. She has already filed an application before the trial Court for enhancement of her maintenance from Rs. 4000/- per month.

In the application for enhancement, the wife has also claimed that since the husband has been earning more than Rs. 80,000/- per month now, the maintenance amount should also be increased. After examining the impugned order of the High Court, we have no other alternative but to say that virtually, the application filed by the wife/appellant for enhancement of the maintenance, which is pending, has been rejected. Furthermore, it is common experience that in spite of directions given by the High Court, for the reasons best known, directions made by it cannot be carried out. In any view of the matter, when the application for enhancement of the maintenance of the amount to the wife/appellant was pending in the Court, it was its duty to go into that question and dispose of the said application before the suit for divorce is disposed of by it. Mr. Ranjan Mukherjee, appearing on behalf of the husband/respondent, submits that if the impugned order of the High Court at this stage is set aside, the disposal of the Matrimonial Suit shall be unnecessarily delayed. Considering this aspect of the matter, we therefore, dispose of this appeal in the following manner:

(1) The wife/appellant shall be entitled to Rs. 7000/- per month instead of Rs. 4000/- per month from the date of filing the application under Section 24 of the Act.

(2) The arrears of maintenance i.e. difference of Rs. 3000/- per month i.e. from Rs. 4000/- to Rs. 7000/- would be paid/deposited by the husband/respondent within three months from this date to the wife/appellant. Till the decision of the suit, the husband shall go on paying/depositing @ Rs. 7000/- per month to the wife/appellant subject to any further order that may be passed in the event, the suit is not decided by the Court within the time specified herein below or increase of the said maintenance of Rs. 7000/- per month is necessitated for any reason whatsoever.

The Trial Court is directed to dispose of the suit positively within a year from the date of supply of a copy of this order to it without granting any unnecessary adjournments to either of the parties.

Sipra Bhattacharyya v. Apares Bhatacharyya [Bench Strength 2], CA No. 307/2009 (19/01/2009), 2009(4) SCC 366: 2009(1) SCALE 662: 2009(2) SLT 589: 2009(2) SCC(Cr) 296 [Tarun Chatterjee, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 18 & 3(b) — Maintenance to wife — Scope, maintenance encompasses a provision for residence also — Suit by respondent-husband for declaration of title in respect of property where defendant-wife was residing and for recovery of possession thereof decreed by trial court and upheld by first appellate court — Second appeal dismissed by High Court, holding that when relationship between husband and wife is estranged, wife cannot claim a right of residence in matrimonial home so as to resist decree of possession — Justification — Held, maintenance encompasses a provision for residence also — Said aspect has not been considered by High Court — Matter to be remitted to High Court for fresh consideration in light of judgment in Mangat Mal’s case, 1995(6) SCC 88 — Appeal disposed of, accordingly — Hindu Succession Act, 1956 — Section 14(1) — Transfer of Property Act, 1882 — Section 39.

B.P. Achala Anand Vs. S. Appi Reddy and Anr., 2005(2) SCALE 105, Relied on.

Komalam Amma v. Kumara Pillai Raghavan Pillai [Bench Strength 2], Civil Appeal No. 6658/2008 (14/11/2008), 2009 AIR(SC) 636: 2008(16) SCR 76: 2008(14) SCC 345: 2008(12) JT 157: 2008(14) SCALE 470: 2008(9) SLT 227 [Arijit Pasayat, J.: Mukundakam Sharma, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Sections 36 & 37 — “Maintenance” and “Support” — Meaning of — Suit for a decree of divorce — Application for reimbursement of medical expenses during pendency of, maintainable — Held, the two expressions “maintenance” and “support” in 1954 Act are comprehensive and of wide amplitude and they would take within their sweep medical expenses — No infirmity in order of court below in said respect — Appeal therefore, to be dismissed — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Section 3(b) — Hindu Marriage Act, 1955 — Sections 24 & 25 — Dissolution of Muslim Marriages Act, 1939 — Section 2 — Muslim Women (Protection of Rights on Divorce) Act, 1986 — Sections 3 & 4 — Parsi Marriage and Divorce Act, 1936 — Sections 39 to 40 — Words and Phrases — Maintenance and support — Meaning of.

HELD: The right of the wife to claim interim maintenance has been upheld by the Court and the said decision has attained finality. Apart from the provisions of Hindu Marriage Act, 1955 or Hindu Adoptions and Maintenance Act, 1956, in our considered opinion, the two expressions, `maintenance’ and `support’ in the Act of 1954 are comprehensive and of wide amplitude and they would take within their sweep medical expenses.

On the basis of material on record, the trial Court, after hearing the parties, held that the wife was entitled to medical expenses which order was slightly modified by the High Court upholding her right to get medical reimbursement from her husband. We see no infirmity in the decision or reasoning of the Courts below which calls for our interference in exercise of discretionary and equitable jurisdiction under Article 136 of the Constitution. The appeal in our view, therefore, has no substance and must be dismissed.

For the foregoing reasons, the appeal deserves to be dismissed and is accordingly dismissed with costs.

The learned counsel for the appellant-husband at this stage prayed for instalments or extension of time to make payment as per the order of the High Court. In our opinion, the prayer is reasonable. On the facts and in the circumstances of the case, ends of justice would be met if we grant some time to the appellant-husband to pay the amount. Let the said amount be paid by the husband latest by December 31, 2008.

Ordered accordingly.

Rajesh Burmann v. Mitul Chatterjee (Barman) [Bench Strength 2], Civil Appeal No. 6443/2008 (04/11/2008), 2009 AIR(SC) 651: 2008(15) SCR 264: 2009(1) SCC 398: 2008(12) JT 145: 2008(14) SCALE 372: 2008(8) SLT 688: 2009(1) SCC(Cr) 506 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Sections 27, 36 & 37 — Medical expenses — Remedy to claim, suit for decree of divorce u/s 27 filed, application u/s 151 CPC claiming for medical reimbursement, maintainable — Proceedings have been initiated under 1954 Act and matrimonial suit was pending — In such circumstances, it was open to applicant-wife to institute such an application — Even otherwise, the provisions of C.P.C. would apply to court exercising power under the 1954 Act — Therefore, objection to jurisdiction of trial court has no substance and to be rejected — Civil Procedure Code, 1908 — Section 151 — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Section 3(b).

Rajesh Burmann v. Mitul Chatterjee (Barman) [Bench Strength 2], Civil Appeal No. 6443/2008 (04/11/2008), 2009 AIR(SC) 651: 2008(15) SCR 264: 2009(1) SCC 398: 2008(12) JT 145: 2008(14) SCALE 372: 2008(8) SLT 688: 2009(1) SCC(Cr) 506 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 115 — Revision petition — Dismissal of, without going into the merit of the case merely on the ground of non-payment of some of the amount of maintenance, when improper — Petitioner liable to pay to respondent a total sum of Rs. 4,62,000/- @ Rs. 7000/- per month — Direction of High Court to pay maintenance @ Rs. 10,000/- p.m. — Petitioner paid a total of Rs.3,86,000/- @Rs. 7000/- per month and only Rs. 76,000/- was still due — High Court rejected revision only on the ground of non-payment of maintenance @ Rs. 10,000/- per moth without going into merit of the case — Impugned order therefore unjustified and to be set aside — Matter remitted back to High Court to decide on merits — Hindu Marriage Act, 1955 — Sections 24 & 25 — Hindu Adoption and Maintenance Act, 1956 — Sections 18 to 20.

Sanjay Narain v. Monika [Bench Strength 2], Civil Appeal No. 5647/2008 (15/09/2008), 2008(16) SCC 503: 2008(12) SCALE 490: 2008(8) SLT 67 [Tarun Chatterjee, J.: Aftab Alam, J.] <<LAWPACK SUPREME COURT>>
Hindu Succession Act, 1956 — Section 14(1) — Applicability of — Scope, mere possession does not automatically attract s.14; suit for declaration and possession, failure to frame issue regarding nature of property, lead evidence and file counter claim etc., effect of — Property possessed by Hindu widow — Suit for declaration and recovery of possession — Property in question jointly purchased by plaintiff and his uncle `TKVM’ in the year 1963 — Relinquishment of share by `TKVM’ in favour of plaintiff vide registered release deed — Defendant is the widow of `TKVM’s son who was permitted to reside in the suit property as a licensee — Refusal to vacate the premises despite of requests — Plaintiff filed suit for declaration of his absolute ownership and for recovery of possession — Defendant claims to be in possession of property in lieu of maintenance and it is a joint family property — No specific issue regarding nature of property framed — No issue relating to section 14(1) framed nor evidence led — No counter-claim filed by defendant — Defendant cannot said to become absolute owner of property pursuant to section 14(1) — Hindu Adoption and Maintenance Act, 1956 — Section 19 — Specific Relief Act, 1963 — Sections 5, 6 & 34.

V. Tulasamma and Ors. v. Sesha Reddy (D) by LRs., 1977(3) SCC 99, Sadhu Singh v. Gurdwara Sahib Narike and Ors., 2006(8) SCC 75, Sharad Subramanyan v. Soumi Mazumdar and Ors., JT 2006(11) SC 535 : 2006(8) SCC 91, Eramma v. Verrupanna and Ors., 1966(2) SCR 626, Referred.

G. Rama v. T.G. Seshagiri Rao [Bench Strength 2], Civil Appeal No. 4215/2008 (07/07/2008), 2008(10) SCR 152: 2008(12) SCC 392: 2008(7) JT 479: 2008(9) SCALE 666: 2008(7) SLT 425 [Arijit Pasayat, J.: Lokeshwar Singh Panta, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 83, 84, 85 & 439(2) — Attachment of properties and cancellation of bail — Order of, when invalid — Complaint against husband and parents-in-law — Grant of bail by trial court subject to condition of not leaving India but father-in-law left India for treatment — Cancellation of bail by High Court directing concerned M.M. to issue standing warrant of arrest against appellants as and when they return to India — Appellant No. 2 also declared absconder on an application of complainant-wife and a public proclamation also issued attaching their properties if not present within 30 days — Order of attachment also passed as they failed to present within 30 days — Application for cancellation of said standing warrants by appellants after returning to India allowed by Trial Court on condition of not leaving India without permission of court and surrendering of passport but set aside by session judge — High Court also dismissed the petition challenging said order — High Court committed a manifest illegality in directing cancellation of bail in so far as it failed to take into consideration that the factors relevant for setting aside an order granting bail and directing cancellation of bail are wholly distinct and different — Further application for cancellation of bail was filed on a misstatement that passport has not been surrendered — Order of attachment against property of appellants also not permissible — Thus in view of entire facts and circumstances, order of High Court unjustified and to be set aside — Hindu Adoption and Maintenance Act, 1956 — Sections 3(b), 4, 18, 19 & 28 — Protection of Women From Domestic Violence Act, 2005 — Sections 17 & 20 — Penal Code, 1860 — Sections 406 & 114 — Constitution of India — Article 21.

HELD: The High Court committed a manifest illegality in directing cancellation of bail in so far as it failed to take into consideration that the factors relevant for setting aside an order granting bail and directing cancellation of bail are wholly distinct and different.

The learned Metropolitan Magistrate in passing the order dated 27th June, 2006 while granting bail took into consideration all the relevant factors. He imposed a fine on them. Even the passports had been surrendered. Application for cancellation of bail was filed on a mis-statement that the passports had not been surrendered. Various contentions, as noticed hereinbefore, in regard to purported suffering of the wife appears to have been taken into consideration which were wholly irrelevant. We have noticed hereinbefore that such contentions have also been raised before us not on the basis that there exists and legal principle behind the same but as an argument of desperation.

Keeping in view the entirety of the facts and circumstances of the case we are of the opinion that gross injustice has been caused to the appellant. She did not deserve such harsh treatments at the hands of the High Court. Respondent No.3 speaks of her own human rights, forgetting the human rights of the appellant, far less the fundamental right of life and liberty conferred on an accused in terms of Article 21 of the Constitution of India.

We are at a loss to understand as to on what premise such a contention has been raised. If we accept the contention of the learned counsel the same would mean that we send the old couple to jail or deprive them of their lawful right of a valuable property and/or ask them to meet obligations which statutorily are not theirs. Such a direction, in our opinion, should also not be passed, keeping in view the conduct of the 3rd respondent. She not only filed a large number of cases against her in- laws, some of which have been dismissed for default or withdrawn but also have been filing applications for cancellation of their bail on wholly wrong premise.

Vimalben Ajitbhai Patel v. Vatslabeen Ashokbhai Patel [Bench Strength 2], Civil Appeal No.2003/2008 with Criminal Appeal No.502/2008 (14/03/2008), 2008 AIR(SC) 2675: 2008(4) SCR 1077: 2008(4) SCC 649: 2008(3) JT 530: 2008(4) SCALE 601: 2008(2) Supreme 413: 2008(3) SLT 630: 2008(2) Crimes 45(SC): 2008(2) JCC 1127 [S.B. Sinha, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 4 — Overriding effect of Act — Scope — Held, by virtue of said provision, any obligation on the part of in-laws in terms of any text, rule or interpretation of Hindu Law or any custom or usage as part of law before the commencement of the Act, are no longer valid — In view of the non obstante clause contained in Section 4, the provisions of the Act alone are applicable.

Vimalben Ajitbhai Patel v. Vatslabeen Ashokbhai Patel [Bench Strength 2], Civil Appeal No.2003/2008 with Criminal Appeal No.502/2008 (14/03/2008), 2008 AIR(SC) 2675: 2008(4) SCR 1077: 2008(4) SCC 649: 2008(3) JT 530: 2008(4) SCALE 601: 2008(2) Supreme 413: 2008(3) SLT 630: 2008(2) Crimes 45(SC): 2008(2) JCC 1127 [S.B. Sinha, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 4, 18, 19 & 3 — Maintenance of married and widowed wife — Liability of, on whom lies — Held, maintenance of a married wife during subsistence of marriage, is on the husband — Obligation on parent in laws to maintain daughter-in-law arise only when the husband has died — Such an obligation can be met from properties of which the husband is a co-sharer and not otherwise.

HELD: Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband, his personal liability to maintain his wife can be directed to be enforced against such property.

Wholly un-contentious issues have been raised before us on behalf of Sonalben (wife). It is well settled that apparent state of affairs of state shall be taken a real state of affairs. It is not for an owner of the property to establish that it is his self-acquired property and the onus would be on the one, who pleads contra. Sonalben might be entitled to maintenance from her husband. An order of maintenance might have been passed but in view of the settled legal position, the decree, if any, must be executed against her husband and only his properties could be attached therefor but not of her mother-in-law.

Sections 18 and 19 prescribe the statutory liabilities in regard to maintenance of wife by her husband and only on his death upon the father-in-law, Mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise.

Vimalben Ajitbhai Patel v. Vatslabeen Ashokbhai Patel [Bench Strength 2], Civil Appeal No.2003/2008 with Criminal Appeal No.502/2008 (14/03/2008), 2008 AIR(SC) 2675: 2008(4) SCR 1077: 2008(4) SCC 649: 2008(3) JT 530: 2008(4) SCALE 601: 2008(2) Supreme 413: 2008(3) SLT 630: 2008(2) Crimes 45(SC): 2008(2) JCC 1127 [S.B. Sinha, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 3 to 5, 6 & 11 — Adoption by custom — Custom, existence of, lack of sufficient proof of — Partition suit by appellant in respect of property jointly owned by `J’, `DN’ `AS’ and `BM’ all the son of one `PR’ on the ground that he acquired right in said property by sale-deed executed by widow of `CB’ who was adopted by `J’ being son of `J’s real sister — Reliance placed on evidence of three witness to prove adoption — PW1 and PW2 did not speak about any custom of adoption — Appellant-P3 also accepted that he did not have personal knowledge about the custom — Evidence of DW-3 referred by first appellate court to hold that he had accepted the existence of custom also not acceptable being contrary to existence of custom — Thus suit of appellant rightly dismissed by trial court and High Court — Appeal meritless and to be dismissed.

HELD: Coming to the facts of the case P.W.1 did not speak any thing on the position either of a local custom or of a custom or usage by the community, P.W.2, Murari Lal claimed to be witness of the ceremony of adoption he was brother-in-law of Jagannath son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at the time of deposition in the Court. He did not speak a word either with regard to the local custom or the custom of the community. P.W.3 as observed by the lower appellate Court was only 43 years’ old at the time of his deposition where as the adoption had taken place around 60 years back. He has, of course, spoken about the custom but that is not on his personal knowledge and this is only on the information given by P.W.2, Murari Lal. He himself did not speak of such a custom. The evidence of a plaintiff was thus insufficient to prove the usage or custom prevalent either in township of Hapur and around it or in the community of Vaish. The evidence of D.W.3 refers only to one instance. From his evidence it cannot be inferred that Om Prakash had adopted Munna Lal who was his real sister’s son. As already pointed out above, the trial court found that the evidence of D.W.3 was not so clear and unambiguous as to lead to no other conclusion except that Munna Lal was son of real sister of Om Prakash. Besides, this solitary instance of adoption of his sister’s son cannot amount to long usage, which has obtained the force of law. Mulla has categorically commented that where the evidence shows that the custom was not valid in numerous instances, the custom could not be held to be proved.

So far as the evidence adduced is concerned, reliance was placed on the evidence of three witnesses. As noted above PW 1 did not speak about any custom. Similarly, PW 2 did not speak about any custom though he claimed to be present at the time of adoption. The present appellant was PW 3. He is outsider of the family. He also accepted that he did not have personal knowledge about the custom. He only stated that PW2 told him about the custom. Significantly PW2 did not speak about any existence of any custom. Appellant PW 3 also accepted that he did not find out as to what was the custom if any and also that he does not know any other instance. Though the Appellate Court had referred to evidence of DW3 to hold that he had accepted that the custom was in existence. As a matter of fact, his evidence is contrary to and is specific that there was no custom. The First Appellate Court had relied on the evidence of Munna Lal to conclude that the son of Reba Saran was given in adoption. Munna Lal specifically stated that the son of Jagannath who was taken in adoption is not the son of sister of Saran.

In view of the aforesaid factual situation and the principles of law enumerated above, the inevitable conclusion is that the appeal is sans merit, deserves dismissal, which we direct.

Sulekh Chand v. Satya Gupta [Bench Strength 2], CA No. 1380/2002 (04/03/2008), 2008(3) SCR 833: 2008(13) SCC 119: 2008(4) SCALE 377: 2008(3) SLT 746 [Arijit Pasayat, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 8(c), 6, 7, 11(i) & (ii) — Adoption by a female Hindu who is leading life like a divorced women — Validity of, determination, conceptual and contextual difference between a divorced women and one who is leading life like a divorced women — One `MB’ leading life like a divorced women was given 32 acres of land by her parents for her maintenance — Notice u/s 10 of M.P. Ceiling Act — Reply by `MB’ pleading appellant as the adopted son and both constituting joint family entitled to retain the land disbelieved by Sub-Divisional Officer — Held, there is a conceptual and contextual difference between a divorced women and one who is leading life like a divorced women and both cannot be equated — Therefore as per section 8(c) `MB’ was not entitled to declaration that appellant is her adopted son — However, in view of submission of appellant that in view of peculiar back ground, the Government may be directed to consider appellant’s case for allotment of land from the surplus land, appellant was permitted to be in possession of land for six months by which time Government may be moved for an appropriate decision in said respect — Appeal to be dismissed subject to said observation — M.P. Ceiling on Agricultural Holdings Act, 1960 — Section 10.

HELD: It follows from Clause (c) of Section 8 that Hindu wife cannot adopt a son or daughter to herself even with the consent of her husband because the Section expressly provides for cases in which she can adopt a son or daughter to herself during the life time of the husband. She can only make an adoption in the cases indicated in clause (c).

It follows from the language of Section 8 read with Clauses (i) & (ii) of Section 11 that the female Hindu has the capacity and right to have both adopted son and adopted daughter provided there is compliance of the requirements and conditions of such adoption laid down in the Act. Any adoption made by a female Hindu who does not have requisite capacity to take in adoption or the right to take in adoption is null and void. It is clear that only a female Hindu who is married and whose marriage has been dissolved i.e. who is a divorcee has the capacity to adopt. Admittedly in the instant case there is no dissolution of the marriage. All that the evidence led points out is that the husband and wife were staying separately for a very long period and Mishri Bai was living a life like a divorced woman. There is conceptual and contextual difference between a divorced woman and one who is leading life like a divorced woman. Both cannot be equated. Therefore in law Mishri Bai was not entitled to the declaration sought for. Here comes the social issue. A lady because of her physical deformity lived separately from her husband and that too for a very long period right from the date of marriage. But in the eye of law they continued to be husband and wife because there was no dissolution of marriage or a divorce in the eye of law. Brajendra Singh was adopted by Mishri Bai so that he can look after her. There is no dispute that Brajendra Singh was in fact doing so. There is no dispute that the property given to him by the will executed by Mishri Bai is to be retained by him. It is only the other portion of the land originally held by Mishri Bai which is the bone of contention.

Learned counsel for the appellant submitted that in any event, the land which is declared to be in excess of the prescribed limit vests in the Government to be allotted to persons selected by the Government. It was submitted that in view of the peculiar background, the Government may be directed to consider the appellant’s case for allotment of the land from the surplus land so that the purpose for which adoption was made and the fact that the appellant nourished a crippled lady treating her to be his own mother would set a healthy tradition and example. We express no opinion in that regard. It is for the State Government to take a decision in the matter in accordance with law. But while dismissing the appeal, we permit the appellant to be in possession of land for a period of six months by which time the Government may be moved for an appropriate decision in the matter. We make it clear that by giving this protection we have not expressed any opinion on the acceptability or otherwise of the appellants request to the State Government to allot the land to him.

The appeal is dismissed subject to the aforesaid observations.

Brijendra Singh v. State of Madhya Pradesh [Bench Strength 2], Civil Appeal No. 7764/2001 (11/01/2008), 2008 AIR(SC) 1056: 2008(1) SCR 593: 2008(13) SCC 161: 2008(1) JT 443: 2008(1) SCALE 372: 2008(1) Supreme 354: 2008(1) SLT 539 [Arijit Pasayat, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 7 proviso to — Adoption by a male Hindu — Scope and requirement for — Held, by virtue of proviso to section 7, 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.

Brijendra Singh v. State of Madhya Pradesh [Bench Strength 2], Civil Appeal No. 7764/2001 (11/01/2008), 2008 AIR(SC) 1056: 2008(1) SCR 593: 2008(13) SCC 161: 2008(1) JT 443: 2008(1) SCALE 372: 2008(1) Supreme 354: 2008(1) SLT 539 [Arijit Pasayat, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 6 & 11 — Valid adoption — Scope and requirements for — By virtue of section 6, the person who wants to adopt a son or a daughter must have the capacity and also the right to take in adoption — As per section 11, the condition for a valid adoption requires that in case of adoption of a son, the mother by whom the adoption is made must not have a Hindu son or son’s son or grand son by legitimate blood relationship or by adoption living at the time of adoption.

Brijendra Singh v. State of Madhya Pradesh [Bench Strength 2], Civil Appeal No. 7764/2001 (11/01/2008), 2008 AIR(SC) 1056: 2008(1) SCR 593: 2008(13) SCC 161: 2008(1) JT 443: 2008(1) SCALE 372: 2008(1) Supreme 354: 2008(1) SLT 539 [Arijit Pasayat, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 8 — Adoption by a female Hindu — Permissibility, scope and requirement for — Held, it is now permissible for a female Hindu who is of sound mind and has completed the age of 18 years to take a son or daughter in adoption to herself in her own right provided that (a) she is not married; (b) or is a widow; (c) or is a divorcee or after marriage her husband has finally renounced the world or is ceased to be a Hindu or has been declared to be of unsound mind by a court having jurisdiction to pass a declaratory decree to that effect.

Brijendra Singh v. State of Madhya Pradesh [Bench Strength 2], Civil Appeal No. 7764/2001 (11/01/2008), 2008 AIR(SC) 1056: 2008(1) SCR 593: 2008(13) SCC 161: 2008(1) JT 443: 2008(1) SCALE 372: 2008(1) Supreme 354: 2008(1) SLT 539 [Arijit Pasayat, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 3, 4, 6 & 11 — Adoption as per customary law — Determination — As per appellant, according to the customs prevalent in the area and families of appellants, adoption is clear, legal and proper — There was no specific plea relating to custom though some vague and indefinite statements have been made in the plaint and that too in a casual manner — No issue was framed and no evidence was laid to prove custom — As such High Court rightly held that defendants case that defendant 1 was adopted son of one `F’ was not established — Defendant 1 was more than 15 years of age at the time of alleged adoption which cannot be recognised in law — Appeal fails and is dismissed — Customary Law — Adoption — As per customary law, determination.

HELD: There was no specific plea relating to custom though some vague and indefinite statements have been made in the plaint and that too in a casual manner. No issue was framed and no evidence was laid to prove custom.

That being so, the High Court’s order does not suffer from any infirmity to warrant interference. The appeal fails and is dismissed but, in the circumstances, without any order as to costs.

Bhimashya v. Janabi [Bench Strength 2], CA No. 5689/2006 (11/12/2006), 2006(Supp-10) SCR 628: 2006(13) SCC 627: 2007(1) JT 332: 2006(14) SCALE 27: 2008(1) SLT 103: 2007(3) SRJ 56 [Arijit Pasayat, J.: Lokeshwar Singh Panta, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 22 Rule 5 & Section 100 — Legal representatives — Determination of question as to, plea of illegal adoption of respondent, when not sustainable; relevant provision for determination of legal representative — New plea in second appeal, impermissibility to raise — When a question arose as to who is the legal representative of a party to the suit, same is required to be determined in terms of Order 22 Rule 5 — Suit for permanent injunction — Death of `J’ i.e. party to suit — `P’ filed application as adopted son of `J’, representing her estate as legal representative — Said application allowed — Suit was decreed — However, in appeal before High Court, a question as to legality or validity of adoption of `P’ by `J’, raised — Status of `P’ as adopted son of `J’ cannot be looked into for the reason that no issue framed as to compliance of requirements under sections 7 and 8 of Hindu Adoptions and Maintenance Act — Opportunity given to raise the issue at the stage of determination of question under Order 22 Rule 5 — Held, if the respondent could represent the estate of original defendant and despite the fact that the appellant had an opportunity to raise the said issue at the stage of determination of the question as envisaged under Order 22 Rule 5 of CPC, the same having been done, such a question cannot be permitted to be raised in the second appeal or before Supreme Court for the first time — Constitution of India — Article 136 — New issue — Impermissibility to raise — Specific Relief Act, 1963 — Section 38 — Hindu Adoption and Maintenance Act, 1956 — Sections 7 & 8.

HELD: When a question arose as to who is the legal representative of a party to the suit who had expired, the same was required to be determined in terms of Order XXII, Rule 5 of the Code of Civil Procedure.

However, by reason thereof, the merit of the matter does not become final. The suit was one for injunction. No issue was framed nor could be framed therein as to whether the requirements of Sections 7 and 8 of the Hindu Adoption and Maintenance Act, 1956 had been complied with or not. It is in that view of the matter, the learned Trial Judge opined that the status of the respondent as an adopted son of Smt. Jarwali could not be looked into the said case.

Submission of Mr. Kapoor that adoption of the respondent is per se illegal, in our opinion, has rightly been held by the learned Trial Judge to be irrelevant for the purpose of determination of the issues in suit.

If the respondent could represent the estate of original defendant and despite the fact that the appellant had an opportunity to raise the said issue at the stage of determination of the question as envisaged under Order XXII, Rule 5 of the Code of Civil Procedure, the same having been done, such a question cannot be permitted to be raised in the second appeal or before us for the first time.

Chhabil Das v. Pappu [Bench Strength 2], CA No. 4611/2006 (31/10/2006), 2006(Supp-8) SCR 42: 2006(12) SCC 41: 2006(11) SCALE 92: 2006(8) Supreme 717: 2006(8) SLT 47: 2007(1) SRJ 164: 2006(10) SCJD 478 [S.B. Sinha, J.: Markandey Katju, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 6 & 11 — Valid adoption — Requirement for adoption to be a valid adoption — To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony.

M. Gurudas v. Rasaranjan [Bench Strength 2], CA No. 4101/2006 (13/09/2006), 2006 AIR(SC) 3275: 2006(Supp-6) SCR 103: 2006(8) SCC 367: 2006(12) JT 447: 2006(9) SCALE 275: 2006(7) Supreme 289: 2006(8) SCJ 401: 2006(10) SRJ 394: 2006(10) SCJD 315 [S.B. Sinha, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 39 Rules 1, 2 & Order 7 Rule 11 — Petition for injunction — Relevant issues that can be considered in, determination — At the stage of grant of injunction, effect of dismissal of an application under Order VII, Rule 11 of CPC would not be of much significance — Court at the stage of application for rejection of plaint cannot go into any disputed question of fact but while passing an order on grant of injunction indisputably it can — Property — Restraint on dealing with, prayer for, directions in the interest of justice, grant of — `O’ and `K’ were brothers in joint possession of property — `N’ was the daughter of `K’ while `O’ had no issues — `O’ had gifted away the property (his share) to `N’ — `N’ claimed to be the adopted daughter of `O’ — Validity of adoption in dispute — Prima facie `N’ not appear to have been adopted by `O’ — Even in gift deed executed by `O’, `N’ was described as his foster daughter but not adopted — Direction given in the interest of justice — Hindu Succession Act, 1956 — Section 8 — Hindu Adoption and Maintenance Act, 1956 — Sections 6 & 11.

HELD: Performance of `datta homam’ was imperative, subject to just exceptions. Above all, as noticed hereinbefore, the question would arise as to whether adoption of a daughter was permissible in law.

Prima facie, therefore, Nirmala was not validly adopted daughter of Obalappa. If that be so, she would inherit only the property which fell to the share of Kadarappa on partition. Nirmala as a daughter of Kadarappa can claim interest in his share in the properties only. In terms of Section 8 of the Hindu Succession Act, as Kadarappa died in the year 1961, she will have 1/8th share but what was the extent of Kadarappa’s property would inevitably depend upon the effect of deed of partition executed by the parties in the year 1954. However, as the matter is required to be dealt with by the Trial Court finally, we do not intend to say anything further at this stage lest we may be understood to have expressed our views one way or the other.

At the stage of grant of injunction, however, the effect of dismissal of an application under Order VII, Rule 11 of the Code of Civil Procedure would not be of much significance. The plaint in question could not have been rejected under Order VII, Rule 11 of the Code of Civil Procedure. The Court at that stage could not have been gone into any disputed question of fact but while passing an order on grant of injunction indisputably it can. In other words, while making endeavours to find out a prima facie case, the court could take into consideration the extent of plaintiffs’ share in the property, if any.

In this case, in our opinion, the courts below have not applied their mind as regards balance of convenience and irreparable injury which may be suffered by the Appellants. The question which may be posed is what would happen if the plaintiffs’ suit is to be dismissed or if their share is found only to be 1/64th? Prima facie their share is not more than 1/8th in the properties in suit.

The properties may be valuable but would it be proper to issue an order of injunction restraining the Appellants herein from dealing with the properties in any manner whatsoever is the core question. They have not been able to enjoy the fruits of the development agreements. The properties have not been sold for a long time. The commercial property has not been put to any use. The condition of the properties being remaining wholly unused could deteriorate. These issues are relevant. The courts below did not pose these questions unto themselves and, thus, misdirected themselves in law.

Having regard to the facts and circumstances of this case, we are of the opinion that the interest of justice would be subserved if these appeals are disposed of with the following directions:

I. (i) The Appellants in Civil Appeal arising out of SLP (C) No. 12 of 2006 will be permitted to sell 18 flats in their possession. The plaintiffs-respondents would be shown all the 21 flats and they may choose any of the 3 flats, whereupon they may offer to purchase the said flats themselves. In the event such an offer is made, the same shall be sold at the price which is being offered by the Appellants to any other buyer. (ii) While transferring the flats, however, the Appellants must indicate to the buyer that the same shall be subject to the ultimate result of the suit. (iii) The Appellants may choose, in the event the Respondents fail and/or neglect to exercise their option, to keep 3 flats with themselves. (iv) They, however, may sell the same, if they choose to do so in presence of one of the officers of the court who may be appointed for the purpose of fixing the market price thereof. However, the price fetched by way of sale of three flats shall be invested in a fixed deposit in a nationalized bank and the interest accruing thereupon shall enure to the benefit of successful party in the suit.

II. (i) The Appellants in Civil Appeal arising out of SLP (C) Nos. 843-44 of 2006 may let out the commercial property in their possession. However, as offered by the Appellants themselves, they shall deposit 50% of the amount after deducting expenditure therefrom and the requisite amount of tax in a fixed deposit in a nationalized bank as may be directed by the learned Trial Judge. (ii) Even for the said purpose, a receiver may be appointed by the learned Trial Judge.

III. It would be open to the learned Trial Judge to pass any other or further order if and when any occasion arises therefor.

IV. We are informed that the plaintiffs have filed affidavits of their witnesses. The learned Trial Judge may complete the hearing of the suit as expeditiously as possible. Save and except for cogent reasons, the hearing of the suit may not be adjourned. We would request the learned Trial Judge to dispose of the suit expeditiously and preferably within six months from the date of receipt of a copy of this order.

M. Gurudas v. Rasaranjan [Bench Strength 2], CA No. 4101/2006 (13/09/2006), 2006 AIR(SC) 3275: 2006(Supp-6) SCR 103: 2006(8) SCC 367: 2006(12) JT 447: 2006(9) SCALE 275: 2006(7) Supreme 289: 2006(8) SCJ 401: 2006(10) SRJ 394: 2006(10) SCJD 315 [S.B. Sinha, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 18, 21, 22, 27 & 28 — Maintenance to wife/widow — Scope — Widow has no charge on separate property of husband — Neither section 18 relating to wife nor section 21 dealing with a widow provides for any charge for maintenance on separate property of husband.

Sadhu Singh v. Gurdwara Sahib Narike [Bench Strength 2], CA No. 1854/2003 (08/09/2006), 2006 AIR(SC) 3282: 2006(Supp-5) SCR 799: 2006(8) SCC 75: 2006(8) JT 525: 2006(9) SCALE 83: 2006(8) Supreme 578: 2006(6) SLT 458: 2006(8) SCJ 555: 2006(10) SRJ 85: 2006(9) SCJD 96 [B.P. Singh, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 18 & 23(2) — Payment of maintenance — Grant of stay — Appeal against the order of trial court directing the respondent to pay maintenance @ Rs. 1000/- p.m. from date of filing of suit — High Court stayed the order by directing to pay maintenance @ 750/- per month — High Court ought to have directed for payment of arrears — Conditional stay accordingly granted on payment of entire arrears @ 750/- p.m. in three equal bimonthly installments and continue to pay current amount as directed by court — Criminal Procedure Code, 1973 — Section 125 — Hindu Marriage Act, 1955 — Section 25.

(Para 3)

Susheelamma v. K. Gaviyanna [Bench Strength 2], Civil Appeal No. 7083/2005 (28/11/2005), 2007(15) SCC 666 [B.N. Agrawal, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
West Bengal Premises Tenancy Act, 1956 — Sections 2(h), (d) & 13(1)(a) — Eviction proceeding — Necessary or proper party, who is not — Application for impleadment by divorced wife of sole tenant dismissed by trial court which was confirmed by High Court — Tenancy in favour of husband of appellant — No privity of contract between appellant and landlady — Family court has granted a decree of divorce on payment of a certain sum for maintenance on mutual consent and that appellant-wife waived her right to further maintenance — Plea of appellant that landlady has recognised appellant as sub-tenant not established — Appellant neither a necessary party nor proper party — Dismissal of application for impleadment by appellant justified and need no interference — Hindu Adoption and Maintenance Act, 1956 — Sections 3(b), 18 & 23 — Hindu Marriage Act, 1955 — Section 25 — Civil Procedure Code, 1908 — Order 1 Rule 10(2).

HELD: As per the appellant’s own averment, the proforma respondent has divested himself of physical possession. While dissolving marriage under Section 13-B of the Hindu Marriage Act, 1955, the matrimonial court with the consent of the parties ordered the proforma respondent to pay a sum of Rs.200/- p.m. for maintenance of the minors only. The appellant, in our opinion, by such consent order has expressly waived her right to maintenance.

It is thus seen from the above averment in the written statement that the husband has never allowed his wife to occupy the suit premises and that she is in possession of the suit premises only as a custodian of the minor children of the defendant and that the monthly rents payable are being paid on account and on behalf of the defendant. The husband also entered appearance in the suit and is contesting the suit by filing a written statement and, therefore, the appellant has no locus standi to be impleaded in the suit either as a necessary or a proper party in whose presence the suit ought to be or should be heard.

The case on hand is a case of divorced wife. It is true that divorced wife is also a wife. We have already dealt with the case of the appellant and her right to contest or defend herself in the pending eviction proceedings. We have already held that she has no right to contest or defend herself nor a right to file and prosecute the eviction proceedings. There is no privity of contract between the appellant and the landlady. The tenancy is in favour of the appellant’s husband. The Family Court has granted a decree for divorce on payment of certain sum by way of maintenance. As a matter of fact, the appellant’s husband, the tenant is contesting the Rent Control proceedings and has filed a written statement denying the claim of the landlady. It was argued by Ms. Kamini Jaiswal on behalf of the appellant that the appellant was recognised by the landlady as a sub-tenant. In support of the said submission, she placed reliance on the letter written by the landlady to the appellant on 18.12.1989. This letter, in our opinion, will be of any aid or assistance to the appellant. It has been stated in that letter that the appellant has been paying the rent on behalf of one Duttas and occupying the said accommodation. The appellant was requested to get a confirmation in writing that he has no interest in the ground floor accommodation of the house in question and surrender the possession of the same to the landlady so that the agreement could be entered into with the appellant on fresh terms if the appellant proposed to continue to stay there. The letter was concluded by saying that until these formalities are completed the occupation of the ground floor accommodation by the appellant is unauthorised and illegal.

We, therefore, cannot agree with the submission of learned counsel for the appellant that the landlady has so recognized the appellant as sub-tenant. In para 35 above, this Court deals with the case of a divorced wife. We have already extracted para 35.

For the foregoing discussion, we are of the opinion that the Court has no jurisdictional power to add a person as a party who is neither a necessary party nor a proper party. The appellant in the status of divorcee cannot claim interest in the suit premises either independently or through her erstwhile husband and as such she cannot be held to say that she is a party without whose presence the court cannot adjudicate and pass the decree. She is, therefore, not a necessary party. The appellant is also not a person whose presence is necessary to enable the Court effectually and completely to adjudicate all the questions involved with the suit.

In view of the discussion made above, we find merit and substance in the submission made by counsel for the respondents. We are of the opinion that the trial Court and the High Court did not commit any jurisdictional error nor acted with material irregularity in dismissing the application under Order 1 Rule 10 C.P.C. filed by the appellant.

Ruma Chakraborty v. Sudha Rani Banerjee [Bench Strength 2], CA No. 2565/2001 (04/10/2005), 2005 AIR(SC) 3557: 2005(Supp-3) SCR 1051: 2005(8) SCC 140: 2005(12) JT 134: 2005(8) SCALE 124: 2005(6) Supreme 734: 2005(7) SLT 497(2): 2005(8) SCJ 458: 2005(10) SRJ 384: 2006(2) SCJD 431 [AR. Lakshmanan, J.: Altamas Kabir, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 3(b) & 23 — `Maintenance’ — Scope — Definition clearly shows that the intention of legislature by including food, clothing, residents etc. was to provide a real maintenance and not a bare or starving maintenance — By virtue of section 3(b)(ii) an unmarried daughter also entitled to the expenses of and incident to her marriage — Words and Phrases — Maintenance.

 

Ruma Chakraborty v. Sudha Rani Banerjee [Bench Strength 2], CA No. 2565/2001 (04/10/2005), 2005 AIR(SC) 3557: 2005(Supp-3) SCR 1051: 2005(8) SCC 140: 2005(12) JT 134: 2005(8) SCALE 124: 2005(6) Supreme 734: 2005(7) SLT 497(2): 2005(8) SCJ 458: 2005(10) SRJ 384: 2006(2) SCJD 431 [AR. Lakshmanan, J.: Altamas Kabir, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 24, 25 & 13-B — Maintenance — Waiver of right to claim, by consent order, determination — Eviction proceeding, right of a divorced wife to implead as a party defendant — As per appellant’s own averment the sole tenant, the husband of appellant-wife has divested himself of physical possession of premises in question — While dissolving marriage u/s 13-B of Marriage Act, matrimonial court with consent of parties ordered a sum of Rs. 200/- for maintenance of minors only — Thus by such consent orders appellant has expressly waived her right to maintenance and therefore has no right to be impleaded to eviction proceedings — West Bengal Premises Tenancy Act, 1956 — Sections 13(1)(a), 14, 16, 2(d) & (h) — Civil Procedure Code, 1908 — Order 1 Rule 10(2) — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Sections 3(b), 18 & 23.

 

Ruma Chakraborty v. Sudha Rani Banerjee [Bench Strength 2], CA No. 2565/2001 (04/10/2005), 2005 AIR(SC) 3557: 2005(Supp-3) SCR 1051: 2005(8) SCC 140: 2005(12) JT 134: 2005(8) SCALE 124: 2005(6) Supreme 734: 2005(7) SLT 497(2): 2005(8) SCJ 458: 2005(10) SRJ 384: 2006(2) SCJD 431 [AR. Lakshmanan, J.: Altamas Kabir, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 18 & 22 — Maintenance — Entitlement to, despite grant of properties by husband under Will, determination — Testator due to unhappy marital life with first wife started living with one divorced lady as man and wife accepting her as second wife in same village and begot two sons through second wife — He executed a Will providing his some properties to first wife for her decent living and rest of the properties to sons born through second wife — Whether first wife entitled to maintenance? — Held, no — In view of fact that she has been given some properties under Will u/s 22 of Act, she is not entitled to any maintenance — Criminal Procedure Code, 1973 — Section 125 — Hindu Marriage Act, 1955 — Sections 24 & 25.

 

Pentakota Satyanarayana v. Pentakota Seetharatnam [Bench Strength 2], CA Nos. 5941-5942/2005 (29/09/2005), 2005 AIR(SC) 4362: 2005(Supp-3) SCR 719: 2005(8) SCC 67: 2005(12) JT 258: 2005(7) SCALE 682: 2005(8) Supreme 666: 2005(7) SLT 423: 2005(7) SCJ 173: 2005(10) SRJ 341 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 23, 18, 19 & 20 — Maintenance — Quantum of — Appellant-husband unable to climb up to the third floor of court building, effect — Appellant (husband), a physically handicapped person moved 2 applications before family court for time to engage an advocate as he could not climb the steps to reach the court in 3rd floor of the building — Family Court under the impression that appellant trying to avoid his appearance in court, proceeded to pass an order granting Rs. 5,000/- as maintenance to each of the respondents — On revision the High Court modified the order by reducing the maintenance to Rs. 3,000/- for wife and Rs. 2,500/- each for 2 daughters — Request for further reduction of amount of maintenance — Having regard to material on record matter requires deeper consideration — Direction given to the appellant to continue to pay a sum of Rs. 4000 per month by way of maintenance to the respondents till disposal of application by Family Court — Directions also given to Family Court to keep in view the fact that the appellant is unable to climb up to the third floor of the court building — In view of the disabilities of the appellant, if such an application is made, the appellant may be examined on commission unless it is possible for the court to sit in one of the courtrooms on the ground floor to dispose of the matter — Matter remitted back to Family Court for rehearing.

Ashwani Kumar v. State of Uttaranchal [Bench Strength 2], CrA No. 400-01/2005 (10/03/2005), 2005(9) SCC 280 [B.P. Singh, J.: S.B. Sinha, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125 — Maintenance — Entitlement to, requirement for — “Wife”, meaning of — Right of second wife married illegally — One who intends to take benefit u/s 125 has to establish the necessary condition that she is wife of person concerned — The expression `wife’ to be interpreted to mean only a legally wedded wife — Whether a women having been marriaged in accordance with Hindu rites with a man having a living spouse is entitled to benefit of section 125? — Held, no — Marriage of a women in accordance with Hindu rites with a man having a living spouse is a complete nullity in eye of law and she is not entitled to benefit of S. 125 of CrPC — Words and Phrases — Wife — Hindu Marriage Act, 1955 — Sections 11, 24 & 25 — Hindu Adoption and Maintenance Act, 1956 — Section 18.

HELD: The word `wife’ is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the `Marriage Act’). Marriage with person having living spouse is null and void and not voidable. However, the attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 of the Code has been enacted in the interest of a wife and one who intends to take benefit under sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained.

Savitaben Somabhai Bhatiyan v. State of Gujarat [Bench Strength 2], CrA No. 399/2005 (10/03/2005), 2005 AIR(SC) 1809: 2005(2) SCR 638: 2005(3) SCC 636: 2005(3) JT 164: 2005(3) SCALE 80: 2005(2) Supreme 503: 2005(3) SLT 59: 2005(5) SCJ 22: 2005(4) SRJ 193: 2005 CrLJ 2141: 2005 SCC(Cr) 787: 2005(2) Crimes 1(SC): 2005(1) JCC 505: 2005(2) RecentCR 190: 2005(3) CRJ 176 [Arijit Pasayat, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 3(b) & 18 — “Maintenance” — Meaning of — Whether it has been so defined as to include therein provision for residence amongst other things — Held, yes — Further for the purpose of maintenance the term “wife” includes a divorced wife — Words and Phrases — Maintenance — Words and Phrases — Wife — Rent Law — Suit for eviction — Entitlement of divorced wife to contest, requirement for — Hindu Marriage Act, 1955 — Sections 24, 25 & 27 — Civil Procedure Code, 1908 — Order 1 Rules 3, 9 & 10 — Criminal Procedure Code, 1973 — Section 125 — Divorce Act, 1869 — Sections 37 & 38 — Special Marriage Act, 1954 — Sections 36 & 37 — Parsi Marriage and Divorce Act, 1936 — Sections 39 to 42 — Muslim Law — Maintenance — Family Courts Act, 1984 — Section 7.
B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Karnataka Rent Control Act, 1961 — Sections 21(1)(a), (h), (2) & 30 — Suit for eviction — Denial to deserted wife to contest, justification — Entitlement of appellant, a deserted wife continuing in tenanted premises taken on lease by husband — Admitted by appellant that during pendency of eviction proceedings a decree for dissolution of marriage by divorce based on mutual consent has been passed — It is not the case of mutual consent has been passed — It is not the case of appellant that she is entitled to continue her residence in tenanted premises by virtue of an obligation incurred by her husband to provide residence for her as a part of maintenance — Therefore she cannot be allowed to defend her right against claim for eviction made by landlord — Rent Law — Suit for eviction — Entitlement of deserted wife to contest, requirement for — Hindu Marriage Act, 1955 — Sections 13(1)(ib) — Civil Procedure Code, 1908 — Order 1 Rules 3, 9 & 10 — Hindu Adoption and Maintenance Act, 1956 — Section 18 & 3(b) — Family Courts Act, 1984 — Section 7(1)(f) — Criminal Procedure Code, 1973 — Section 125 — Transfer of Property Act, 1882 — Sections 105, 108 & 111.
B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Karnataka Rent Control Act, 1961 — Sections 21(1)(a), (h), (2) & 30 — Suit for eviction — Entitlement of divorced wife to contest, requirement for — Right of a divorced wife of residence in matrimonial home — Her entitlement to defend eviction petition against husband-tenant — Divorce is termination of matrimonial relationship and brings to an end the status of wife as such — Right of a divorced wife for residence is depend on the terms and condition in which the decree of divorce has been granted and provision for maintenance including residence has been made — If provision for residence of a divorced wife has been made by husband in matrimonial home situated in tenanted premises, such divorced wife would be entitled to defend in eviction proceeding, the tenancy right and rights of occupation thereunder but not higher or larger than that of husband — Rent Law — Suit for eviction — Entitlement of divorced wife to contest, requirement for — Hindu Marriage Act, 1955 — Sections 24 & 25 — Civil Procedure Code, 1908 — Order 1 Rules 3, 9 & 10 — Hindu Adoption and Maintenance Act, 1956 — Section 18 & 3(b) — Criminal Procedure Code, 1973 — Section 125 — Divorce Act, 1869 — Sections 37 & 38 — Special Marriage Act, 1954 — Sections 36 & 37 — Parsi Marriage and Divorce Act, 1936 — Sections 39 to 42 — Muslim Law — Divorce — Maintenance — Transfer of Property Act, 1882 — Sections 105, 108 & 111.

B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Karnataka Rent Control Act, 1961 — Sections 21(1)(a), (h), (2) & 30 — Suit for eviction — Entitlement of deserted wife to contest, requirement for — A deserted wife if entitled to be in occupation of matrimonial home is entitled to contest the suit for eviction filed against her husband subject to satisfying two conditions — (1) That the tenant has given up the contest and such giving up by tenant-husband shall prejudice the deserted wife residing in premises in question — (ii) that the scope and ambit of contest by wife would not be on a footing higher than that of tenant himself — This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and right to occupy the house as a part of right to maintenance coming to an end — Rent Law — Suit for eviction — Entitlement of deserted wife to contest, requirement for — Hindu Marriage Act, 1955 — Sections 13(1)(ib) — Civil Procedure Code, 1908 — Order 1 Rules 3, 9 & 10 — Hindu Adoption and Maintenance Act, 1956 — Section 18 & 3(b) — Family Courts Act, 1984 — Section 7(1)(f) — Criminal Procedure Code, 1973 — Section 125.

HELD: In our opinion, a deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions : first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. In other words, such a wife would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and Rent Control Legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end.

A deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of himself. We are inclined to hold – and we do so – that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself.

B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 25 & 27 — Maintenance — Right of, continuance of, scope — Right of a wife for maintenance is an incident of the status or estate of matrimony and a Hindu is under a legal obligation to maintain his wife — However on the status of wife being terminated by a decree or divorce, the rights of divorced wife seem to be cribbed, confined and cabined by provisions of Hindu Marriage Act and to the rights available u/s 25 and 27 of H.M. Act — Hindu Adoption and Maintenance Act, 1956 — Section 18.

B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 18 — Right to residence of a wife — Availability of protection under provisions of Rent Control Laws, determination — A Hindu wife is entitled to be maintained by her husband — She is entitled to remain under his roof and protection — She is also entitled to separate residence if by reason of husband’s conduct she is compelled to live apart from him — This right statutorily recognised with enactment of Act, 1956 — Provisions made by Rent Control Laws for protection of tenant is not only for his benefit but also for benefit of all those residing or entitled to reside with him — So long as the tenant defends himself, the interest of his family members merges with him and they too are protected — Tenant cannot by collusion or by deliberate act, give up the protection of law to detriment of his family members — Rent Law — Tenant — Protection of right of, scope — Karnataka Rent Control Act, 1961 — Section 21(1)(a).

B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Hindu Succession Act, 1956 — Section 23 & Schedule — Dwelling house — Right of female heir in respect thereof — N had seven daughters and a grand daughter validly adopted B, appellant herein, as his son — Deceased N and appellant occupied dwelling house during his lifetime — N had married off all his daughters during his lifetime — Held, in such circumstances, appellant would be entitled to the ancestral house in which he was living along with his adoptive father during his lifetime unless he chooses to divide the same and after his death, if there is no other coparcener, then the property would revert back to all the heirs of his father i.e. as per Schedule of the Act — Female heirs will have no right to claim partition — Right of the appellant in the dwelling house would be subject to the right of any of the female heirs if she becomes a widow or is separated from her husband — Hindu Adoption and Maintenance Act, 1956 — Sections 12 & 13.

Narashimaha Murthy vs. Susheelabai, 1969(3) SCC 644: AIR 1996 SC 1826, Relied on.

Basavarajappa v. Gurubasamma [Bench Strength 2], CA No. 4365/1999 (01/02/2005), 2005(12) SCC 290 [Ashok Bhan, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 12, 11 & 13 — Adoption — Effect of, on right of adoptee — Held, on adoption, adoptee gets transplanted in adopting family with the same rights as that of natural born son — Adopted child becomes a coparcener in Joint Hindu Family Property after severing all his ties with natural family.

Sitabai vs. Ramchandra, 1969(2) SCC 544, Relied on.

HELD: On adoption, the adoptee gets transplanted in the family in which he is adopted with the same rights as that of a natural-born son. The legal effect of giving a child in adoption is to transfer the child from the family of his birth to the family of his adoption. He severs all his ties with the family from which he is taken in adoption. Interpreting Section 12 and sub-section (vi) of Section 11, this Court in Sitabai v. Ramchandra, 1969(2) SCC 544, held that the adoptee ceases to have any ties with the family of his birth. Correspondingly, these ties are automatically replaced by those created by the adoption in the adopted family. The adopted child becomes a coparcener in the Joint Hindu family property.

Basavarajappa v. Gurubasamma [Bench Strength 2], CA No. 4365/1999 (01/02/2005), 2005(12) SCC 290 [Ashok Bhan, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Law — Adoption — Power of widow, revival and existence of, scope — Power to adopt vested in widow is extinguished if she has a surviving son or his widow — Said power would not even revive on remarriage of son’s widow — Hindu male dying leaving behind his widow and two sons — Sons also died later on leaving behind their widowed mother and widows — After remarrying daughter-in-law widow adopted her grandson, the appellate herein — Held, adoption by widow was invalid in the presence of her sons’ widows — Such right cannot be held to have revived on their re-marriage — Hindu Adoption and Maintenance Act, 1956 — Section 8.

Gurunath vs. Kamalabai, Kom Kenchangauda Nadgaudar, 1955(1) SCR 1135: AIR 1955 SC 206, Followed.

Bapuji vs. Gangaram, ILR 1941 Nag 178, Overruled.

Ashabai Kate vs. Vithal Bhika Nade, 1989 Supp.(2) SCC 450, Referred.

Ningappa v. Shivappa [Bench Strength 2], CA No. 4579/1999 (29/09/2004), 2005(12) SCC 492 [Ashok Bhan, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 18 & 20 — Maintenance to second wife — Quantum of — Maintenance proceedings by wife — Grant of interim maintenance of Rs. 400/- p.m. increased to Rs. 700/- p.m. — Wife claiming Rs. 12,000/- p.m. on ground that husband has received substantial amount as retiral benefits — Husband contesting proceedings on ground of competence of present wife to claim maintenance and the quantum — Appellant claiming to be second wife of respondent — Husband agreed to provide second floor of accommodation owned by him for separate residence of wife — Amount of interim maintenance increased to Rs. 1,500/- p.m. with right of separate residence provided to the wife.

HELD: Before the High Court, it appears at one stage, reconciliation efforts were made in which the husband had agreed to provide second floor of the accommodation owned by him for separate residence of the wife with Rs. 1,500/- per month as permanent alimony to her during her life. Efforts of reconciliation, however, failed as at a later stage, the wife backed out. The copies of orders passed by the Division Bench of High Court on 13.2.2003 and 17.2.2003, in the course of reconciliation proceedings, have been produced by the parties in this appeal.

As the legal right of the second wife to claim maintenance under the Act and its quantum are hotly contested issues in the main case, we refrain from expressing any opinion on merit of the claims and contentions of the parties. For the purpose of fixing appropriate amount of interim maintenance, we may assume that the financial position of husband is such that he can easily pay a sum of Rs. 1,500/- per month as interim maintenance without disturbing the right of separate residence provided to the wife at the second floor of the husband’s premises.

Narinder Pal Kaur Chawla v. Manjeet Singh Chawla [Bench Strength 2], CA No. 2606/2004 (Arising out of SLA (c) No. 20230/2003 (21/04/2004), 2004 AIR(SC) 3453: 2004(9) SCC 617: 2004(4) SCALE 822: 2004(3) Supreme 422: 2004(3) SLT 230: 2004(6) SRJ 259: 2004(1) DMC 652: 2004(2) KAJ 293 [Shivaraj V. Patil, J.: D.M. Dharmadhikari, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 5, 6 & 11 — Adoption — Proof, contradictory evidence — Question of adoption is essentially one of fact merely depending upon pure appreciation of evidence on record — Well merited findings concurrently recorded by courts below holding plaintiff not a adopted son — High Court rightly declined to interfere on facts and circumstances of the case — Original appellant’s claim of being adopted son of BB rejected by trial court and first Appellate Court — Claim intricately linked with functioning as a Pujari in temple — Original appellant filed a suit for declaration that the temple belonged to entire class of Vaishnava Worshippers — Evidence regarding plea of adoption not in line with pleadings and was at variance with it and in virtual self contradiction — Adverse inference to be drawn — Evidence cannot be looked into or relied upon — Hindu Law — Adoption — Proof, contradictory evidence — Civil Procedure Code, 1908 — Order 6 Rule 1 & Order 18 Rule 2 — Evidence Act, 1872 — Section 114.

Siddiqui Mohammad Shah vs. Mst. Saran and Ors., AIR 1930 PC 57 & Trojan and Co. vs. RM. N.N. Nagappa Chetiar, AIR 1953 SC 235, Relied on.

Kashi Nath v. Jaganath [Bench Strength 2], CA No. 6974/1996 with CA No. 8596/2003 (06/11/2003), 2003(Supp-5) SCR 202: 2003(8) SCC 740: 2003(8) JT 358: 2003(9) SCALE 368: 2003(7) Supreme 714: 2003(6) SLT 778 [Doraiswamy Raju, J.: Arijit Pasayat, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 17 — Scope and applicability of — Section 17 enacted to prevent trafficking of children — Contravention sub-section (1) is punishable with imprisonment which may extend to six months or fine or both — It is not intended to cover cases where a major person agrees not to set up any claim with regard to certain items belonging to adoptive family — Section 17 can be held to have an overriding effect so as to change the legal proposition prevalent prior to the commencement of the Act.

Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao [Bench Strength 2], CA No. 14870/1996 (19/09/2003), 2003 AIR(SC) 3314: 2003(Supp-3) SCR 948: 2003(8) SCC 282: 2003(Supp-1) JT 536: 2003(7) SCALE 665: 2003(6) Supreme 1011: 2003(6) SLT 35: 2003(10) SRJ 340 [Y.K. Sabharwal, J.: B.N. Agrawal, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 17, 4 & 10(iv) — Ante-adoption agreement — Validity, determination — Vyasa community — Ante-adoption agreement entered into prior to adoption between to be adopted son and the would be adoptive father — Appellant being a major person was adopted by defendant no. 1 and his wife — On same date in evening marriage between appellant and niece of wife of defendant No. 1 taken place — No question of adoptive father giving any payment or reward to plaintiff/appellant as a consideration for adoption — No question of any payment or agreement to make payment by appellant to his would be adoptive father — Recital in agreement does not show any payment was either made or agreed to be made by appellant to first defendant — Appellant before adoption had no interest of any kind in properties — By agreement appellant agreed not to claim any interest in some of the properties of his adoptive father — It did not cover all the properties of defendant no. 1 — No question of any trafficking in children — Section 17 does not prohibit every kind of agreement between a major adoptee and the would be adoptive father — Agreement does not suffer from vice of section 17 and hence valid — Hindu Law — Adoption — Ante-adoption agreement, validity, determination.

HELD: To consider this question, we would assume as correct the conclusion of the High Court that the appellant on adoption on 24th March, 1962 became a coparcener and the first defendant ceased to be a sole surviving coparcener. Learned counsel for the respondents has not raised the invalidity of adoption under clause (iv) of Section 10 of the Act on the ground that the appellant was more than 15 years of age. Finding of the High Court on the said aspect is that in view of the custom in the Vaish community to which the parties belong adoption after the age of 15 years is permissible. This finding is also not under challenge.

Prior to enforcement of the Act, Section 500 of Principles of Hindu Law stipulated that where the adopted son was a major at the time of the adoption, he may by an agreement with the adoptive father or the adopting widow made before the adoption, consent to a limitation of his rights in the property of his adoptive father. The settled law before the commencement of the Act was that when a person of full age at the time of adoption agrees or assents to the condition under agreement entered into with the adoptive father limiting his right in the properties of the adoptive father, such agreement was legal and binding on the adoptive son.

The recital in Exhibit B-16 does not show any payment was either made or agreed to be made by the appellant/plaintiff to the first defendant. It cannot be construed as an agreement whereby any payment was made or agreed to be made by the appellant/plaintiff to defendant No. 1. It also seems difficult to construe this agreement whereby the plaintiff gave or agreed to give to his adoptive father any `other reward’.

In the present case there is no question of adoptive father giving any payment or reward to the plaintiff as a consideration for the adoption. As already noticed, there was no question of any payment or agreement to make payment by plaintiff to his would be adoptive father. Regarding giving of reward by plaintiff or agreement to give any reward to his would be adoptive father for consideration of adoption, that question would arise only if the plaintiff had any right in the properties. Prior to adoption plaintiff had no such right and, therefore, the question of his giving anything to defendant No.1 does not arise. On facts earlier noticed, the plaintiff was being fostered by adoptive father and his wife for five years prior to adoption. The wife of adoptive father had transferred various properties in favour of the plaintiff about five years earlier to adoption. At the same time she had also settled certain properties in favour of the girl with whom the plaintiff was to marry and in fact married. By agreement Exhibit B-16, the appellant/plaintiff agreed not to claim any interest in some of the properties of his adoptive father. It did not cover all the properties of defendant No. 1. Such an agreement is not prohibited by Section 17. Under the circumstances of the case, there was no question of any trafficking in children. Section 17 does not prohibit every kind of agreement between a major adoptee and the would be adoptive father. Exhibit B-16 does not suffer from the vice of Section 17 of the Act.

Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao [Bench Strength 2], CA No. 14870/1996 (19/09/2003), 2003 AIR(SC) 3314: 2003(Supp-3) SCR 948: 2003(8) SCC 282: 2003(Supp-1) JT 536: 2003(7) SCALE 665: 2003(6) Supreme 1011: 2003(6) SLT 35: 2003(10) SRJ 340 [Y.K. Sabharwal, J.: B.N. Agrawal, J.] <<LAWPACK SUPREME COURT>>
Hindu Law — Adoption — Validity of, determination — Adoption of one `G’ — Question whether `G’ was adopted by his natural father or by his brother — Finding recorded by first Appellate Court that `G’ was given in adoption by his natural father — Justification of — `G’ was given in adoption much before the coming into force of Hindu Adoption and Maintenance Act, 1956 — Parties to be governed by law which was in force at the time of adoption — As per Mulla Hindu Law, the only person who can lawfully give a boy in adoption are his father and his mother — This shows that `G’ could have been given in adoption by his father and not by brother — No averment in plaint that `G’ was not given in adoption by his father — In absence of pleading there was no lis between the parties on this question — No error in finding recorded by first appellate court — Hindu Adoption and Maintenance Act, 1956.

Rajgopal v. Kishan Gopal [Bench Strength 2], CA Nos. 3829-30/2000 (16/09/2003), 2003 AIR(SC) 4319: 2003(Supp-3) SCR 732: 2003(10) SCC 653: 2003(7) SCALE 516: 2003(6) Supreme 712: 2003(5) SLT 691: 2003(10) SRJ 447 [Y.K. Sabharwal, J.: B.N. Agrawal, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 12 proviso (c) — Rights of adopted son — Adoption after death of sole surviving coparcener, effect — Rights of adopted son in relation to family properties — Whether adopted son could divest the property, which devolved on heirs of sole surviving coparcener and vested in them prior to his coparcener and vested in them prior to his adoption — Held, No — Defendant 6 having been adopted by widow four months after death of V, sole surviving coparcener, held not entitled for share in suit properties — Adopted child shall be deemed to be child of his or her adopted father or mother for all purposes with effect from date of adoption — Adopted child shall not divest any person of any estate, which vested in him or her before the adoption — Principle of relation back, limitations — Hindu Succession Act, 1956 — Section 6.

Jivaji Annaji vs. Hanmant Ramchandra, AIR 1950(37) Bom. 360, Approved.

Dharma Shamrao Agalawe vs. Pandurang Miragu Agalawe, AIR 1988 SC 845, Distinguished.

Sawan Kumar vs. Kala Wanti, 1967(3) SCR 687, Relied on.

HELD: On the date of death of Vyankat the properties of the joint family in his hands devolved on his heirs. i.e., his sons and daughters as per Section 6 of the Hindu Succession Act 1956, subject to rights of maintenance of defendant No.2 Krishnabai. Opening of succession and devolving of properties operated immediately on the death of Vyankat and the joint family properties stood vested in the heirs of Vyankat. Defendant No. 6 was adopted by defendant No.2 about four months after the death of Vyankat by which time the properties had already been vested in his heirs as stated above.

It is plain and clear that an adopted child shall be deemed to be the child of his or her adopted father or mother for all purposes with effect from the date of adoption as is evident from the main part of Section 12. Proviso (c) to Section 12 in clear terms states that the adopted child shall not divest any person of any estate, which vested in him or her before the adoption.

On the death of Vyankat, in the present case, property in his hands devolved and vested in his heirs. In view of proviso (c) of Section 12 of the Act defendant No. 6 Dattatraya by virtue of his adoption four months after the death of Vyankat could not divest the properties vested in the heirs of Vyankat so as to claim is share.

It appears that, by making such a provision, the Act has narrowed down the rights of an adopted child as compared with the rights of a child born posthumously. Under the Shastric law, if a child was adopted by a widow, he was treated as a natural- born child and, consequently, he could divest other members of the family of rights vested in them prior his adoption. It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in clause (c) of the proviso to S.12, and section 13 of the Act were incorporated.”

This being the legal position defendant No. 6 having been adopted after the death of Vyankat and after the properties vested in his heirs, is not entitled for share in the suit properties.

Namdev Vyankat Ghadge v. Handrakant Ganpat Chadge [Bench Strength 2], CA No. 11632/1995 (25/02/2003), 2003 AIR(SC) 1735: 2003(2) SCR 299: 2003(4) SCC 71: 2003(2) JT 504: 2003(2) SCALE 407: 2003(2) Supreme 276: 2003(4) SRJ 256: 2003(3) KAJ 739 [Doraiswamy Raju, J.: Shivaraj V. Patil, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125 — Maintenance to daughter even after attaining majority till marriage — Permissibility — Provision of s.125 does not fix liability of parents to maintain children beyond attainment of majority — However, maintenance to minor girl u/s 23 of Hindu Adoptions and Maintenance Act (HAM) is given till her marriage — Family Court taking cue from s.20(3) directing maintenance to daughter till her marriage — Held, justified, on combined reading of s.125 CrPC and Section 20(3) of HAM Act, to avoid multiplicity of proceedings — Hindu Adoption and Maintenance Act, 1956 — Section 20(3).

Jagdish Jugtawat v. Manju Lata [Bench Strength 3], SLP(Crl.) No. 905/2001 (23/04/2002), 2002(5) SCC 422: 2004(4) SLT 482: 2002 SCC(Cr) 1147: 2004(3) CCR 12(SC): 2003(3) RecentCR 471 [D.P. Mohapatra, J.: Brijesh Kumar, J.: D.M. Dharmadhikari, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 & 11(vi) — Adoption — Presumption as to adoption, scope — Onus of proof — Registered Deed of Adoption — Dispute relating to estate of one S, between daughter of `S’ and allegedly adopted son, appellant — Presumption as to adoption duly rebutted by evidence on record — Voter’s list prepared before institution of suit, describing appellant as son of his natural father — In reply filed by appellant in proceedings u/s 125 CrPC, initiated by his wife, appellant described himself as son of his natural father — No specific ceremonies noted pertaining to adoption in Adoption Deed — High Court rightly came to a conclusion negating adopting — Order of High Court held legally sustainable — Constitution of India — Article 136.

Madan Singh v. Sham Kaur & Ors., AIR 1973 P & H 122 Approved.

HELD: The Section 16 envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law Mandate of the Statute is rather definite since the Legislature has used “shall” instead of any other word of lesser significance. Incidentally, however the inclusion of the words “unless and until it is disproved” appearing at the end of the statutory provision has made the situation not that rigid but flexible enough to depend upon the evidence available on record in support of adoption. It is a matter of grave significance by reason of the factum of adoption and displacement of the person adopted from the natural succession – thus onus of proof is rather heavy. Statute has allowed some amount of flexibility, lest it turns out to be solely dependent on a registered adoption deed. The reason for inclusion of the words “unless and until it is disproved” shall have to be ascertained in its proper perspective and as such the presumption cannot but be said to be a rebuttable presumption. Statutory intent thus stands out to be rather expressive depicting therein that the presumption cannot be an irrebuttable presumption by reason of the inclusion of the words just noticed above.

While it is true that the registered instrument of adoption presumably stands out to be taken to be correct but the Court is not precluded from looking in to it upon production of some evidence contra the adoption. Evidence, which is made available to the Court for rebutting the presumption, can always be looked into and it is on production of that evidence that the High Court has recorded a finding non-availability of the presumption to the Appellant.

The High Court upon, recording the fact of the presumption being rebuttable, came to a conclusion negating the adoption. On the wake of the aforesaid, we do not see any reason to lend concurrence to the submissions of Mr. Jain that the statutory presumption should give way to all other instances available on record. The presumption under Section 16 being a rebuttable presumption as the statute prescribes and on the state of evidence available on record question of decrying the order of the trial court as also of the two appellate courts on the fact situation of the matter in issue cannot be termed to be so perverse so as to authorise this Court to scan the evidence and reappreciate the same. This is where Mr. Ramachandran contended that scope of Article 136 being limited and by reason of definite allegation of fraud in the matter of bringing forth the document of adoption interference with the orders of three different forums would not arise. We do find a great deal of substance thereon since the appreciation of evidence as noticed above cannot be had at this stage of proceedings unless the order can be ascribed to be totally perverse.

Jai Singh v. Shakuntala [Bench Strength 2], CA No. 9469/1996 (14/03/2002), 2002 AIR(SC) 1428: 2002(2) SCR 431: 2002(3) SCC 634: 2002(3) JT 52: 2002(2) SCALE 627: 2002(2) Supreme 415: 2002(2) SLT 524: 2002(2) SCJ 435: 2002(4) SRJ 221 [U.C. Banerjee, J.: Brijesh Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 25 & 23 — Maintenance — Quantum of — Suit for enforcement of an alleged family settlement entered into between husband and wife — Appellants alleging the agreement as void as they signed it under duress — However, Single Judge of the High Court held that respondents, wife and daughter were entitled to get interim maintenance @ Rs. 40,000/- p.m. — Appellants were directed to clear arrears of maintenance from 1.1.1997 to 30.9.1998 @ Rs. 40,000/- p.m. and to deposit school fee and other charges in connection with education of 2nd respondent — Appellants were also directed to provide a house to respondents in terms of settlement — Directions challenged — Appeal disposed of directing expeditions trial, holding discretionary power exercised by the court cannot be said to be perverse or irrational — Constitution of India — Article 136.

HELD: The counsel for the appellant vehemently contended that the Memorandum of Settlement was signed by the appellants under special circumstances and the first appellant is financially not in a position to meet the alleged obligations under the agreement. The counsel argued that by the impugned judgment, the plaintiff-respondents have been given virtually the entire relief sought for in the suit and the appellants are unduly burdened with financial liabilities which are incapable of being performed by the first appellant. We notice the force in this contention, but at the same time it is to be borne in mind that this is only an interim order passed by the court in exercise of the discretionary power vested in it in such family proceedings. Further, the interim arrangement made under the order only covers payment of interim maintenance, arrear and current, deposit of school fees of the child and providing a separate residence. From the impugned judgment, it is clear that there was a long and elaborate debate by the counsel on either side regarding the financial capability of the appellants. Having regard to the fact that the order under challenge is an interim order, without expressing any opinion on merits we would only say that the discretionary power exercised by the court cannot be said to be perverse or irrational so as to warrant interference by this court. But at the same time, the appellants have raised certain serious contentions which require consideration at the hands of the learned Single Judge before whom the matter would come up for trial. We only wish that the suit may have an expeditious trial and the same be finally disposed of. The parties also, with the help of friends and well-wishers shall explore the possibility of an amicable settlement and bury the hatchet once and fort all. We make it clear that any observation made by this Court or the High Court shall not have any persuasive effect when the matter is finally considered by the Court.

Ravi Singhal v. Manali Singhal [Bench Strength 2], 2012(6) SCALE 19: 2012(5) SLT 131 (01/10/2001), 2001 AIR(SC) 3952: 2001(Supp-3) SCR 460: 2001(8) SCC 1: 2001(8) JT 256: 2001(6) SCALE 580: 2001(7) Supreme 293: 2001(7) SLT 17: 2001(3) SCJ 576: 2001(10) SRJ 79 [D.P. Mohapatra, J.: K.G. Balakrishnan, J.] <<LAWPACK SUPREME COURT>>
Rent Law — Tenant — Legal heirs of, determination — Eviction petition — Tenant died intestate leaving no heir — Appellant used to reside in suit premises — Her plea that she was adopted daughter of deceased tenant — Failure to prove factum of adoption — No document produced showing any ceremony or giving of appellant by her father or taking over by deceased tenant — Whether merely having a joint bank account would prove adoption in absence of any other evidence? — Held, No — Hindu Adoption and Maintenance Act, 1956 — Section 11 — Conditions for valid adoption.

Nilima Mukherjee v. Kanta Bhusan Ghosh [Bench Strength 2], CA No. 5383/2001 (17/08/2001), 2001 AIR(SC) 2725: 2001(Supp-1) SCR 675: 2001(6) SCC 660: 2001(6) JT 486: 2001(5) SCALE 333: 2001(6) Supreme 175: 2001(5) SLT 851: 2001(8) SRJ 235 [S.S.M. Quadri, J.: S.N. Phukan, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 11 — Conditions for valid adoption — Only joint bank account not sufficient — Burden of proof of factum of adoption and its validity — Eviction proceedings — Death of tenant — Appellant’s plea that she was adopted daughter of deceased tenant — No document for adoption produced — Whether merely having a joint bank account would prove adoption in absence of any other evidence? — Held, No — Appellant failed to prove that she was actually given in adoption by her father and taken in adoption by deceased tenant — Plea of adoption rightly rejected — Rent Law — Tenant — Legal heirs of, determination.

Lakshman Singh Kothari v. Rup Kanwar, 1962(1) SCR 477; L. Debi Prasad v. Smt. Tribeni Devi, 1970(1) SCC 677 Relied on.

Nilima Mukherjee v. Kanta Bhusan Ghosh [Bench Strength 2], CA No. 5383/2001 (17/08/2001), 2001 AIR(SC) 2725: 2001(Supp-1) SCR 675: 2001(6) SCC 660: 2001(6) JT 486: 2001(5) SCALE 333: 2001(6) Supreme 175: 2001(5) SLT 851: 2001(8) SRJ 235 [S.S.M. Quadri, J.: S.N. Phukan, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 18, 23 & 27 — Maintenance — Entitlement of Hindu Wife — Forfeiture of property of husband, a detenu under COFEPOSA Act — No charge for maintenance was created in favour of wife on those properties which are forfeited — Whether wife whose husband’s property is ordered to be forfeited is entitled to file an appeal as `person aggrieved’ u/s 12(4) of SAFEMA? (No) — Word `dependent’ as defined in Section 21 does not include the wife — Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 — Section 12(4).

Shobha Suresh Jumani v. Appellate Tribunal, Forfeited Property [Bench Strength 3], CrA No. 501/2001 (04/05/2001), 2001 AIR(SC) 2288: 2001(3) SCR 525: 2001(5) SCC 755: 2001(Supp-1) JT 112: 2001(4) SCALE 4: 2001(4) Supreme 36: 2001(4) SLT 193: 2001(3) SCJ 243: 2001(6) SRJ 436: 2001 CrLJ 2583: 2001 SCC(Cr) 1334: 2001(2) CCR 210(SC): 2001(2) RecentCR 806: 2001(249) ITR 405 [B.N. Kirpal, J.: M.B. Shah, J.: Ruma Pal, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 7 — Right of male Hindu to take a adoption — Permissibility — Consent of wife — Whether necessary — Discussed.

HELD: Every male Hindu who is of sound mind and has attained the age of discretion though he be a minor was held entitled to, subject to the provisions of any law for the time being in force, take a son in adoption provided he has no son, grandson or great grandson, natural or adopted living at the time of such adoption. When a Hindu makes an adoption during his life time, his wife would necessarily join him in the essential religious ceremonies to be performed therefor and, therefore, he was not obliged to take the consent of the wife and the assent of the wife has never been considered to be a condition precedent for the exercise of the right by the husband.

Vijayalakshmamma v. B.T. Shankar [Bench Strength 2], CA No. 5473/1998 (26/03/2001), 2001 AIR(SC) 1424: 2001(2) SCR 769: 2001(4) SCC 558: 2001(4) JT 290: 2001(3) SCALE 72: 2001(3) Supreme 90: 2001(3) SLT 186: 2001(2) SCJ 613: 2001(5) SRJ 141 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 12, 7, 8 & 14 — Adoption by senior widow — Permissibility — No consent of junior widow, effect — Capacity or right of a Hindu woman to adopt — When a Hindu male dies leaving behind more than one widow — Adoption by senior widow without obtaining consent of junior widow — Whether valid — Held, yes senior most widow shall be presumed to have authority to her husband to make an adoption — However, adopted child shall not divest any person of any estate which vested in him or her before the adoption — Plaintiff was adopted in 1970 by wife one N who died in year 1968 leaving behind two widows — N had no issues through his wives — Senior widow died — Plaintiff claiming partition of his 3/4th share in suit properties alleging that he was the only adopted son of deceased N — Junior widow disputing the claim alleging that there was no adoption of plaintiff by the senior widow as junior widow having not accorded her consent or participated in the adoption — High Court held that adoption of plaintiff having been made by senior widow alone, he would be entitled to inherit only share of senior widow — Plaintiff was held entitled for half an share as against the 3/4th share granted by Trial Court — No error of law or infirmity in decision of the High Court — Appeal dismissed.

V.T.S. Chandrashekhara Mudaliar v. Kulandaivelu Mudaliar & Ors., AIR 1963 SC 185; G. China Ramasubbayya v. M. Chenchuramayya, AIR 1947 PC 124; Guramma Bhrator Chanbasappa Deshmukh v. Mallappa Chanbasappa, AIR 1964 SC 510; Eramma & Ors v. Muddappa, AIR 1966 SC 1137; Sawan Ram v. Mst. Kalwanti, AIR 1967 SC 1761; G. Appaswami Chettiar v. R. Sarangapanu AIR 1978 SC 1051 Relied on; N. Hanumantha Rao v. N Hanumayya, ILR 1966 Andhra Pradesh 140 Approved; Ranjit Lal v. Bijoy Krishna, ILR 39 Calcutta 582; Chukkamma v. Punnamma, 28 Madras LJ 72; Muthuswami Nauken v. Pulavaratal, AIR 1922 Madras 106; Bijra Goudu v. Muniammal, AIR 1940 Madras 5 Distinguished.

HELD: The legality of the adoption in this case is challenged on the ground of want of consent of the junior widow (the second wife/second appellant). Though under Section 7 of the Act, a restriction has been specifically engrafted on the exercise of power and right of the male Hindu not to adopt, if he has a wife living, 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 and the Explanation further enjoins the necessity of taking the consent of all the wives, if the person has more than one wife living at the time of adoption, unless the consent of any one of them has been rendered unnecessary for any of the reasons specified in the main proviso itself. The question that now requires to be considered is as to whether the plea on behalf of the appellants that the proviso and Explanation thereto engrafted in Section 7 can and also should be dovetailed or read into Section 8, for any justifiable reason or purpose, deserves or merit our acceptance.

Either having regard to state of law prevailing on the eve of coming into force of the Act or the nature and extent of the changes and alterations effected in the then existing personal law envisaged by the Parliament could there be any justification whatsoever for Courts to re-write Section 8 of the Act by doing violence to the language by adding something which has been consciously and deliberately omitted by the Parliament itself. To subject the exercise of power by the senior widow to adopt, conditioned upon the consent of the junior widow where a Hindu male died leaving behind two widows with no progeny of his own, would render the exercise of power more cumbersome and paradoxical, leaving at times, such exercise of power to adopt only next to impossibility. Having regard to the provisions contained in proviso (c) to Section 12 of the Act which ensures that the adopted child shall not divest any person of any estate which vested in him or her before the adoption and consequent protection of the rights vested with the junior widow in the property left behind by the deceased husband and the real and ultimate object of adoption by the widow, no injustice could be said to be caused to the junior widow on account of the legislature not making it obligatory for the senior widow to obtain the consent of the junior widow to adopt a child which would be deemed to be not only for her but also the deceased husband as envisaged in Section 12 of the Act.

We are also of the view that either having regard to state of law prevailing on the eve of coming into force of the Act or the nature and extent of the changes and alterations effected in the then existing personal law envisaged by the Parliament could there be any justification what so ever for Courts to re-write Section 8 of the Act by doing violence to the language by adding something which has been consciously and deliberately omitted by the Parliament itself. To subject the exercise of power by the senior widow to adopt, conditioned upon the consent of the junior widow where a Hindu male died leaving behind two widows with no progeny of his own, would render the exercise of power more cumbersome and paradoxical, leaving at times, such exercise of power to adopt only next to impossibility. Having regard to the provisions contained in proviso (c) to Section 12 of the Act which ensures that the adopted child shall not divest any person of any estate which vested in him or her before the adoption and consequent protection of the rights vested with the junior widow in the property left behind by the deceased husband and the real and ultimate object of adoption by the widow, no injustice could be said to be caused to the junior widow on account of the legislature not making it obligatory for the senior widow to obtain the consent of the junior widow to adopt a child which would be deemed to be not only for her but also the deceased husband as envisaged in Section 12 of the Act.

A compendious reading of all the above provisions harmoniously with due regard to the purpose sought to be achieved will inevitably lead to certain inescapable consequences. They are (i) a female unmarried or if married but satisfying the requirements of clause (c) of Section 8, conferred with a right to adopt subject to the other provisions of Chapter-II, and (ii) since, unlike the position in the old Hindu Law a Hindu female is not only adopting for the husband but rendered eligible and entitled to adopt a son or a daughter in her own right and to herself also if unmarried, it has become necessary for the Legislature to enact a fiction to the extent that the 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 adoption, which certain numerated consequences also flowing from the same, one of such being that the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

Vijayalakshmamma v. B.T. Shankar [Bench Strength 2], CA No. 5473/1998 (26/03/2001), 2001 AIR(SC) 1424: 2001(2) SCR 769: 2001(4) SCC 558: 2001(4) JT 290: 2001(3) SCALE 72: 2001(3) Supreme 90: 2001(3) SLT 186: 2001(2) SCJ 613: 2001(5) SRJ 141 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Sections 96 & 100 — Power of first appellate court — Scope — Substantial question of law — Absence of, determination — Dispute about adoption — Appellant filing a suit seeking a declaration that the deed of adoption executed by her husband in favour of defendant no. 2 was void and that she had not given her consent for the alleged adoption and that there was no giving and taking ceremony at the time of the alleged adoption — Trial court, on appraisal of the evidence on record, accepted the case of the plaintiff and held that there was no valid adoption since the consent of the plaintiff had not been taken and the deed of cancellation was executed shortly after the date of the alleged adoption — First Appellate Court reversed the judgment and decree passed by the trial court and dismissed the suit — Second appeal filed by the plaintiff summarily dismissed by the High Court holding that no substantial question of law involved in the case — Held, first appellate court has power to interfere in the finding of trial court on the lack of consent of the plaintiff to the adoption — No exception can be taken to the High Court dismissing the second appeal holding that the appellant has not been able to formulate any question of law involved in the appeal — Hindu Adoption and Maintenance Act, 1956 — Section 9(2).

HELD: The learned Counsel appearing for the appellant strenuously urged that the finding of the trial court on the lack of consent of the plaintiff to the adoption should not have been disturbed by the first Appellate Court. We are unable to accept the said contention. The matter is essentially one of fact on which the first Appellate Court, which is the final court of fact, has recorded a specific finding based on the evidence on record that the plaintiff had given her consent to the proposed adoption and that the requirement of giving and taking for a valid adoption having been fulfilled the adoption cannot be said to be invalid on any count.

Raushan Devi v. Ramji Sah [Bench Strength 2], CA No. 4739/1996 (20/02/2001), 2002 AIR(SC) 2416: 2002(10) SCC 205: 2001(5) JT 320: 2001(3) SLT 145 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 12 & 13 — Adoption — Scope of — Discussed.

HELD: Reading Section 12 Proviso (c) and Section 13 together, it is apparent that adoption would not divest any person of any estate which is vested in him or her before the adoption. It also does not deprive the adoptive father or mother the power to dispose of his or her property by transfer, inter vivos or by Will. However, this power to dispose of the property would be subject to any agreement between the parties.

Legislature has codified and crystalised the situation prevailing prior to the enactment of the Act that there was no implied contract on the part of the adoptive father or mother in consideration of the gift of his son by a natural father or mother that he or she would not dispose of property by transfer or by Will. However, in case of specific agreement to the contrary between the parties, the power to dispose of the property would be subject to the said agreement.

Chiranjilal Srilal Goenka v. Jasjit Singh [Bench Strength 2], CA No. 723/1973 (01/12/2000), 2000(3) R.A.J. 472: 2001 AIR(SC) 266: 2000(Supp-5) SCR 313: 2001(1) SCC 486: 2000(Supp-3) JT 418: 2000(8) SCALE 130: 2000(8) Supreme 137: 2000(8) SLT 603: 2001(1) SRJ 192: 2001(1) ArbLR 1 [M. Jagannadha Rao, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Arbitration Act, 1940 — Sections 33 & 30 — Misinterpretation of documents — Setting aside of award on the ground of — Dispute about legal heirs of deceased — One of the daughters claiming under a Will, one `R’ claiming as adopted son and wife of adopted son claiming independently — `R’ relying on a letter written by his natural parents when he was given in adoption to the deceased — Letter signed by number of persons — No signature of deceased on letter — No evidence that he accepted the same as it was — No positive or negative agreement limiting the rights of deceased to dispose of his property either by transfer or by Will — No registration of document — Arbitrator holding `R’ to be a sole legal heir and Will in favour of daughter inoperative — Held, not valid — No adoption agreement as contemplated under Section 13 of Hindu Adoption and Maintenance Act — Held, award is, on the face of it, illegal and erroneous and contrary — Award based on misinterpretation of letter liable to be set aside — Hindu Adoption and Maintenance Act, 1956 — Sections 12 proviso c & 13 — Registration Act, 1908 — Sections 17(1)(b) & 49.

HELD: In our view, the photocopy of the letter, presuming that such letter was written by Mangal Das Kedia to Chiranjilal at the time of giving Radheyshyam in adoption, there can be no doubt that it does not reflect any agreement between the parties. At the most it was only a unilateral offer giving child in adoption on certain expectations. The letter appears to be signed by number of persons and if really Chiranjilal had accepted it, then he would have placed his signatures on the said letter. There is nothing on record that he accepted the same as it was.

Secondly, the letter at the most indicates that from that day, Radheshyam would be the adopted son of Chiranjilal and would inherit his property. However, it was made clear in that very letter that during the lifetime of Chiranjilal and his wife, they were the absolute owners of their properties. There is nothing to indicate in the said letter that it was a covenant or a contract restricting the powers of Chiranjilal or his wife to dispose of the property either by transfer or by Will. Nowhere, it is stated that during his lifetime, Chiranjilal will not be entitled to dispose of his property either by transfer or by Will. Hence, there is no positive or negative agreement limiting the rights of Chiranjilal to dispose of the property by executing the Will. Presuming that the aforesaid letter is an agreement, at the most it can be stated that from the said date Radheshyam would be son of Chiranjilal and would be entitled to inherit his properties. This also would not mean that there is any agreement that adoptive father has no right to dispose of his property.

Learned senior Counsel for the respondent, Mr. Sanghi submitted that the aforesaid letter is not to be construed as a deed, but is to be taken as an offer letter and by conduct of adopting Radheshyam as son, Chiranjilal could not dispose of the property by Will. In our view, this argument is totally devoid of any substance because if reliance is required to be placed on the letter for holding that it restrains Chiranjilal to dispose of the property by Will, then it is required to be read as a document which limits the rights of Chiranjilal to deal with his property including the immovable property. Therefore, it would require registration. In any case, the aforesaid question is not required to be considered in detail because we have already arrived at the conclusion that there is no agreement between the parties before adoption indicating any contrary intention as contended.

Finally, we would deal with the contention of learned Counsel, Mr. Sanghi that when two views are possible and the Arbitrator has taken a plausible view, the Award cannot be interfered with. For deciding this contention, we would refer to some parts of the Award which would reveal that the award is, on the face of it, illegal and erroneous and contrary to what has been discussed above. The Arbitrator has misinterpreted the letter as an adoption agreement between Mangal Chand Kedia and late Chiranjilal and thereafter relied upon the part of the said agreement as two terms of the agreement and has held that as per the said terms, Chiranjilal has committed him to have only life interest in the said property for himself and his wife. After their death, Radheshyam would be the successor of their entire property. He, therefore, held that “there is an implied prohibition, against them to transfer any part of their property. Obviously, either of them is incompetent to transfer any part of the property inter vivos or under any Will. In this view of the matter, I hold that the adoption agreement covered by the finding on issue no. 6 is an agreement to the contrary as contemplated under Section 13 of the Act.”

In this view of the matter, we hold that the Award dated 16th June, 2000 passed by the Arbitrator holding that the Will executed by Chiranjilal is inoperative and requires to be set aside and we so do. It is held that on the basis of the probated Will, Sushilabai N. Rungta is legal heir of the deceased Chiranjilal.

The next question would be whether the said letter, if considered as an agreement, restraining or limiting the rights of adoptive father to bequeath the property requires registration? In support of this, contention, learned Counsel Mr. Bobde referred to the decision of this Court in Dinaji v. Daddi, 1990(1) SCC 1. In that case Hindu widow adopted a son on April 28, 1963 by executing the deed of adoption. The document was not registered and the trial court admitted the same in evidence in proof of adoption. Subsequently, by registered sale deed dated April 28, 1966, she transferred immovable property including agricultural land and houses in favour of the appellant-Dinaji. On the basis of the sale deed, suit for injunction and possession was filed against the adopted son. After considering the provisions of Section 12(c), this Court held that after the Hindu Succession Act came into force, widow became absolute owner of the property of her husband and, therefore, merely by adopting a child, she could not be deprived of any of her rights in the property. The Court further held “the adoption would come into play and the adopted child could get the rights for which he is entitled after her death as is clear from the Scheme of Section 12 Proviso (c).” Thereafter, the Court considered Section 13 of the Act and observed that “this Section enacts that when the parties intend to limit the operation of Proviso (c) to Section 12, it is open to them by an agreement and it appears that what she included in the present deed of adoption was an agreement to the contrary as contemplated in Section 13 of the Hindu Adoptions and Maintenance Act.” However, the Court held that in view of Section 17(1)(b) of the Registration Act, the said part of the deed which refers to the creation of immediate right in the adopted son and the divesting of the right of the adoptive mother in the property, will squarely fall within the ambit of Section 17(1)(b) and, therefore, under Section 49 of the Registration Act.

Chiranjilal Srilal Goenka v. Jasjit Singh [Bench Strength 2], CA No. 723/1973 (01/12/2000), 2000(3) R.A.J. 472: 2001 AIR(SC) 266: 2000(Supp-5) SCR 313: 2001(1) SCC 486: 2000(Supp-3) JT 418: 2000(8) SCALE 130: 2000(8) Supreme 137: 2000(8) SLT 603: 2001(1) SRJ 192: 2001(1) ArbLR 1 [M. Jagannadha Rao, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Gift Tax Act, 1958 — Section 5(1)(vii) — Taxable gift — Determination, transfer of Property to meet the obligation under law, effect — Not a gift under Gift Tax Act — Gift made in favour of three minor daughter — Gift deed expressly providing that the gift is made in satisfaction of the assessee’s obligation under law to maintain his daughters — Under section 20 of Hindu Adoption & Maintenance Act, a Hindu is bound during his life time to maintain his daughter and his obligation — Effect — Transfer to meet the obligation under law can not be regarded as a gift within the meaning of Gift Tax Act — Hindu Adoption and Maintenance Act, 1956 — Sections 20 & 3(b).

Commissioner of Gift Tax v. B.S. Apparao [Bench Strength 3], CA No. 1981/1995 (16/11/2000), 2002(9) SCC 672: 2000(8) SLT 721: 2001(248) ITR 103 [S.P. Bharucha, J.: D.P. Mohapatra, J.: S.N. Phukan, J.] <<LAWPACK SUPREME COURT>>
Torts — Medical negligence — Damages — Complete sterilisation operation — Poor labourer already having 7 children — Certificate issued in respect of complete sterilisation operation — Child conceived even after complete sterilisation — Plea that operation related only to right Fallopian Tube and left Fallopian tube not touched — Negligence of medical authorities — Doctor as also the State must be held responsible — Damages for a sum of Rs. 54,000/- with interest at the rate of 12% p.a. from the date of institution of suit till the payment of the decretal amount awarded — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Sections 20, 22 & 23 — Consumer Protection Act, 1986 — Sections 2(1)(o) & (g).

HELD: Family Planning is a National Programme. It is being implemented through the agency of various Govt. Hospitals and Health Centres and at some places through the agency of Red Cross. In order that the National Programme may be successfully completed and the purpose sought may bear fruit, every body involved in the implementation of the Programme has to perform his duty in all earnestness and dedication. The Govt. at the Centre as also at the State level is aware that India is the second most-populous country in the world and in order that it enters into an era of prosperity, progress and complete self-dependence, it is necessary that the growth of the population is arrested. It is with this end in view that family planning programme has been launched by the Government which has not only endeavoured to bring about an awakening about the utility of family planning among the masses but has also attempted to motivate people to take recourse to family planning through any of the known devices or sterilisation operation. The Programme is being implemented through its own agency by adopting various measures, including the popularisation of contraceptives and operation for sterilising the male or female. The implementation of the Programme is thus directly in the hands of the Govt. officers, including Medical Officers involved in the family planning programmes. The Medical Officers entrusted with the implementation of the Family Planning Programme cannot, by their negligent acts in not performing the complete sterilisation operation, sabotage the scheme of national importance. The people of the country who cooperate by offering themselves voluntarily for sterilisation reasonably expect that after undergoing the operation they would be able to avoid further pregnancy and consequent birth of additional child.

The public policy here professed by the Government is to control the population and that is why various programmes have been launched to implement the state-sponsored family planning programmes and policies. Damages for the birth of an unwanted child may not be of any value for those who are already living in affluent conditions but those who live below the poverty line or who belong to the labour class who earn their livelihood on daily basis by taking up the job of an ordinary labour, cannot be denied the claim for damages on account of medical negligence.

It is, no doubt, true that the parents are under an obligation to maintain their minor children. This is a moral, apart from a statutory, liability in view of the provisions contained in Section 125 of the Code of Criminal Procedure. It is also a statutory liability on account of Section 20 of the Hindu Adoptions and Maintenance Act.

“Maintenance” would obviously include provision for food, clothing, residence, education of the children and medical attendance or treatment. The obligation to maintain besides being statutory in nature is also personal in the sense that it arises from the very existence of the relationship between parent and the child. The obligation is absolute in terms and does not depend on the means of the father or the mother.

Under every system of law governing the patriarchal society, father being a natural guardian of the child, is under moral liability to look after and maintain the child till he attains adulthood.

Smt. Santra, as already stated above, was a poor lady who already had seven children. She was already under considerable monetary burden. The unwanted child (girl) born to her has created additional burden for her on account of the negligence of the doctor who performed sterilisation operation upon her and, therefore, she is clearly entitled to claim full damages from the State Govt. to enable her to bring up the child at least till she attains puberty.

Having regard to the above discussion, we are positively of the view that in a country where the population is increasing by the tick of every second on the clock and the Government had taken up the family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilisation operation, the doctor as also the State must be held responsible in damages if the sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilisation.

State of Haryana v. Santra [Bench Strength 2], CA 2897/2000 (24/04/2000), 2000 AIR(SC) 1888: 2000(3) SCR 195: 2000(5) SCC 182: 2000(5) JT 34: 2000(3) SCALE 417: 2000(3) Supreme 520: 2000(4) SLT 93: 2000(5) SRJ 360: 2000(2) CLT 152(SC) [S. Saghir Ahmad, J.: D.P. Wadhwa, J.] <<LAWPACK SUPREME COURT>>
Hindu Succession Act, 1956 — Sections 14(1) & (2), 8(a) & Schedule — Widowed destitute daughter — Rights of — Will by her father — Pre-existing right in testator’s estate — Testator carved out the residuary 1/3rd part of estate for being handed over to widowed daughter on his demise — Full ownership or life interest — Determination — Hindu Adoption and Maintenance Act, 1956 — Section 19(1)(a).

HELD: The testator in his wisdom with a view to ensure future claim of maintenance of appellant no. 1 against his estate, carved out the residuary 1/3rd part thereof for being handed over to appellant no. 1 on his demise. But for that provision his entire estate would have remained liable to meet the claim of future maintenance of appellant no. 1 from that estate and could have been enforced against any of the heirs of deceased testator who might have succeeded to his estate as testamentary heirs on the testamentary succession getting opened in their favour. The testator wanted to free his other testamentary heirs from his pre-existing liability attached to his estate. He, therefore, carved out a parcel of his estate for enjoyment of his destitute widowed daughter, though of course as life interest which Section 14(1) of the Act made a full estate on the demise of the testator. It is in the light of this pre-existing statutory right of appellant no. 1 for maintenance against the estate of the testator that the provision in the will, granting 1/3rd residuary life interest to appellant no. 1, has to be appreciated. Once this legal right of appellant no. 1 is visualised, it would obviously be the pre-existing right of maintenance in her favour qua the estate of the testator and it is this right which, though circumscribed as life interest in the will, would get matured into full ownership in her favour under Section 14(1) of the Succession Act, on the coming into operation of the will. That would precisely attract Section 14(1) of the Succession Act and would take the case out of the exceptional provision of Section 14(2).

If the testator had created a life interest to the extent of 1/3rd of his property in favour of his maid servant or a female cook who might have served him during his life time, then such female legatees could not have claimed benefit of Section 14(1) and their claim would have confined only to Section 14(2) as they would not have any pre-existing legal right of maintenance or dependency qua the estate of the deceased employer but appellant no. 1, as a destitute widowed daughter of the testator, stands on entirely a different footing. The will in her favour does not create for the first time any such right as might have been created in favour of a maid servant or a cook. In fact, the will itself recognises her pre-existing right in express terms and provides that even after his death, his other legatee brothers have to look after the welfare of his widowed daughter. Under these circumstances, Section 14(1) can legitimately be pressed in service by learned senior counsel for the appellants’ on the basis of legal right flowing to her under the relevant provisions of the Maintenance Act.

Balwant Kaur v. Chanan Singh [Bench Strength 2], CA 4157/1989 (18/04/2000), 2000 AIR(SC) 1908: 2000(3) SCR 61: 2000(6) SCC 310: 2000(5) JT 102: 2000(3) SCALE 332: 2000(3) Supreme 505: 2000(4) SLT 106: 2000(5) SRJ 376: 2000(2) CLT 164(SC) [S.B. Majmudar, J.: M. Jagannadha Rao, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 19(1)(a) — “From the estate of her husband or her father mother — Meaning of — Discussed — Words and Phrases — From the estate of her husband or her father mother.

HELD: Under the proviso to Section 19(1), the words used are “(a) from the estate of her husband or her father or mother” and they mean that she has a right-apart from the right she has against the estate of her husband – a personal right against her father or mother during their respective lives. The words ‘the estate of’ before the words ‘her husband’ are not to be read into the latter part of the clause as ‘estate of her father or mother’. What the proviso does here is to create (i) a right against the estate of her husband and also (ii) an independent and personal right against the father during his lifetime (or against the mother) if the daughter is unable to maintain herself out of her earnings or other property etc. That right against the father during his lifetime can be enforced against the property he is holding. The legislature has deliberately not used the words ‘estate of her father’ in the proviso (a) to section 19(1).

Balwant Kaur v. Chanan Singh [Bench Strength 2], CA 4157/1989 (18/04/2000), 2000 AIR(SC) 1908: 2000(3) SCR 61: 2000(6) SCC 310: 2000(5) JT 102: 2000(3) SCALE 332: 2000(3) Supreme 505: 2000(4) SLT 106: 2000(5) SRJ 376: 2000(2) CLT 164(SC) [S.B. Majmudar, J.: M. Jagannadha Rao, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 21(vi), 22(2) & 19(1)(a) — Widowed daughter — Right of maintenance — Destitute widowed daughter — No estate of her own — Hindu Succession Act, 1956 — Section 14(1) & (2).

HELD: Proviso (a) to Section 19(1) creates a personal right in favour of the widowed daughter against her father during his lifetime. Any property given in lieu thereof, during his life time or to go to her after the father’s life time would certainly fall under Section 14(1) of the Hindu Succession Act, 1956, that being in lieu of a pre-existing right during the father’s lifetime.

On facts, it must be held that the widowed daughter had a right against her father, during the latter’s lifetime, as she was a destitute and not taken care of by her husband or his estate. It is in lieu thereof, he gave her 1/3rd of her property.

This provision clearly indicates that if the widowed daughter-in-law is destitute and has no earnings of her own or other property and if she has nothing to fall back upon for maintenance on the estate of her husband or father or mother or from the estate of her son or daughter, if any, then she can fall back upon the estate of her father-in-law. This provision also indicates that in case of a widowed daughter-in-law of the family if she has no income of her own or no estate of her husband to fall back upon for maintenance, then she can legitimately claim maintenance from her father or mother. On the facts of the present case, therefore, it has to be held that appellant no. 1, who was a destitute widowed daughter of the testator and who was staying with him and was being maintained by him in his lifetime, had nothing to fall back upon so far as her deceased husband’s estate was concerned and she had no estate of her own. Consequently, as per Section 19(1)(a) she could claim maintenance from the estate of her father even during her father’s lifetime. This was a pre-existing right of the widowed daughter qua testator’s estate in his own lifetime and his right which was tried to be crystallised in the will in her favour after his demise fell squarely within the provisions of Section 22(2) of the Maintenance Act. Thus, on a conjoint operation of Sections 19(1)(a) and 22(2) read with Section 21(vi) there is no escape from the conclusion that appellant no. 1 had a pre- existing right of being maintained from the estate of the testator during the testator’s lifetime and also had got a subsisting right of maintenance from the said estate even after the testator’s death when the estate would pass in favour of his testamentary heirs and the same situation would have occurred even if the testator had died intestate and if appellant no. 1 could have become a Class-I heir.

Balwant Kaur v. Chanan Singh [Bench Strength 2], CA 4157/1989 (18/04/2000), 2000 AIR(SC) 1908: 2000(3) SCR 61: 2000(6) SCC 310: 2000(5) JT 102: 2000(3) SCALE 332: 2000(3) Supreme 505: 2000(4) SLT 106: 2000(5) SRJ 376: 2000(2) CLT 164(SC) [S.B. Majmudar, J.: M. Jagannadha Rao, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 20, 18 & 3(b) — Rights of minor to claim maintenance — Scope — Held, minor child so long as he is minor can claim maintenance from his or her father or mother — Section 20 is to be contrased with s.18 — Obligation of maintenance as much of the father as that of the mother — It is not the law that how affluent mother may be it is the obligation only of the father to maintain the minor.

Padmja Sharma v. Ratan Lal Sharma [Bench Strength 2], CA 2462/1999 (28/03/2000), 2000 AIR(SC) 1398: 2000(2) SCR 621: 2000(4) SCC 266: 2000(2) SCALE 589: 2000(2) Supreme 653: 2000(3) SLT 174: 2000(5) SRJ 252: 2000(2) CLT 100(SC): 2000(1) DMC 629 [D.P. Wadhwa, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Interpretation of Statutes — Hindu Marriage Act — Held, Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 Constitute a law in a coded form for the Hindus — Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision — Hindu Minority and Guardianship Act, 1956 — Hindu Adoptions and Maintenance Act, 1956 — Hindu Succession Act, 1956 — Hindu Marriage Act, 1955 — Applicability — Interpretation of Statutes — Hindu Minority and Guardianship Act, 1956 — Hindu Adoptions and Maintenance Act, 1956 — Hindu Succession Act, 1956 — Word — Definition of.

Padmja Sharma v. Ratan Lal Sharma [Bench Strength 2], CA 2462/1999 (28/03/2000), 2000 AIR(SC) 1398: 2000(2) SCR 621: 2000(4) SCC 266: 2000(2) SCALE 589: 2000(2) Supreme 653: 2000(3) SLT 174: 2000(5) SRJ 252: 2000(2) CLT 100(SC): 2000(1) DMC 629 [D.P. Wadhwa, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 9(5), (2) & 16 — Custody of child — Intention of child — Weightage — Natural mother of child filing petition for issuance of writ of habeas corpus alleging that her daughter is in illegal custody of the elder brother of her husband and that her daughter should be produced in court and she should be given the custody of the child — Plea by opposite party that a registered deed of adoption has been executed that the child has been given in adoption by the natural parents — Deed of adoption was pleaded to be fraudulent by the natural mother — Child produced in the Chambers of Judges of Supreme Court to ascertain the view of the child — Judges got the impression on questioning her that the child would like to stay with her natural mother and does not want even to talk with adoptive parents — Effect — Direction of High Court allowing the custody of the child to the natural mother until appropriate decision of competent forum is obtained with regard to the validity of adoption deed as well as the custody of child upheld in such circumstances making it clear that any observation made by the High Court in the impugned judgment with regard to the validity of the registered deed of adoption or with regard to the suitability of the custody of child will not be binding in the pending proceedings — Constitution of India — Article 226.

Rajiv Bhatia v. Government of NCT of Delhi [Bench Strength 2], CrA 922/1999 (09/09/1999), 1999 AIR(SC) 3284: 1999(Supp-2) SCR 280: 1999(8) SCC 525: 1999(6) JT 523: 1999(5) SCALE 414: 1999(7) Supreme 561: 1999(7) SLT 299: 1999(9) SRJ 312: 1999 CrLJ 4292: 1999(3) CCR 209(SC): 1999(2) JCC 449 [G.B. Pattanaik, J.: U.C. Banerjee, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 226 — Petition for habeas corpus — Power of High Court — Scope of — Dispute regarding custody of child — Legality of the deed of adoption — Determination of — Natural mother of the child filed the petition for habeas corpus in Rajasthan High Court — Thereafter filing another petition in Delhi High Court — Held, Delhi High Court is not entitled to examine the legality of the deed of adoption for coming to the conclusion one way or the other with regard to the custody of the child — Hindu Adoption and Maintenance Act, 1956 — Section 16 — Civil Procedure Code, 1908 — Section 20.

Rajiv Bhatia v. Government of NCT of Delhi [Bench Strength 2], CrA 922/1999 (09/09/1999), 1999 AIR(SC) 3284: 1999(Supp-2) SCR 280: 1999(8) SCC 525: 1999(6) JT 523: 1999(5) SCALE 414: 1999(7) Supreme 561: 1999(7) SLT 299: 1999(9) SRJ 312: 1999 CrLJ 4292: 1999(3) CCR 209(SC): 1999(2) JCC 449 [G.B. Pattanaik, J.: U.C. Banerjee, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 226 — Petition for habeas corpus — Entitlement to file — Dispute regarding custody of child — Legality of the deed of adoption — Determination of — Natural mother of the child filed the petition for habeas corpus in Rajasthan High Court — Thereafter filing petition before Delhi High Court — Held, she cannot invoke the jurisdiction of the Delhi High Court — Hindu Adoption and Maintenance Act, 1956 — Section 16 — Civil Procedure Code, 1908 — Section 20.

Rajiv Bhatia v. Government of NCT of Delhi [Bench Strength 2], CrA 922/1999 (09/09/1999), 1999 AIR(SC) 3284: 1999(Supp-2) SCR 280: 1999(8) SCC 525: 1999(6) JT 523: 1999(5) SCALE 414: 1999(7) Supreme 561: 1999(7) SLT 299: 1999(9) SRJ 312: 1999 CrLJ 4292: 1999(3) CCR 209(SC): 1999(2) JCC 449 [G.B. Pattanaik, J.: U.C. Banerjee, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 — Adoption — Presumption of — Impossibility — Deed of adoption neither signed by any person giving the child in adoption nor registered — Held, presumption under Section 16 does not arise — Denial of compassionate appointment on the basis of such adoption deed cannot be said to be invalid — Service and Labour Law — Appointment — Compassionate appointment — Adopted son.

Chairman, Bihar Rajya Vidyut Board v. Chhathu Ram [Bench Strength 2], CA 2783/1999 (07/05/1999), 1999(5) SCC 673: 1999(10) JT 263: 1999(9) Supreme 195: 1999(9) SLT 393: 1999(4) LLN 66: 1999(3) SLR 7 [Sujata V. Manohar, J.: R.P. Sethi, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 22 Rules 5 & 2 — Substitution — Challenge to — Remedy — Partition suit — Death of plaintiff — Respondent filing an application for substitution and producing a registered deed of adoption — Collateral challenge to the adoption deed by other legal heirs — Held, in such circumstances, trial court should have substituted him in place of deceased-plaintiff on being satisfied that conditions of section 16 of Hindu Adoption and Maintenance Act, 1956 had been complied with — It is not open to the defendants to collaterally challenge the said registered deed of adoption in the same proceeding — However, in view of Section 16 it is open to them to disprove such deed of adoption only after taking independent proceeding — Hindu Adoption and Maintenance Act, 1956 — Section 16 — Presumption under — Challenge — Procedure — Hindu Law — Partition.

Deu v. Laxmi Narayan [Bench Strength 2], CA 2227/1982 (01/08/1996), 1998(8) SCC 701 [N.P. Singh, J.: K. Venkataswami, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 12 & 16 — Invalid adoption — Effect of — Rebuttal of presumption as to registered documents relating to adoptions in the light of the evidence adduced on behalf of parties — Effect of — Held, if deed of adoption has not been held to be valid it shall be deemed that the right, title and interest of the appellant in the properties belonging to his natural father shall survive and shall not deemed to have been extinguished.

Lal Man v. Deputy Director of Consolidation [Bench Strength 2], CA 1172/1980 (01/08/1996), 1998(8) SCC 693 [N.P. Singh, J.: K. Venkataswami, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 — Presumption as to registered documents relating to adoptions — Rebuttal of — Interference by Supreme Court — Determination of — Held, presumption has to be drawn by the Court and such presumption can always be rebutted on the basis of evidence adduced before the court concerned — Where Deputy Director of Consolidation and the High Court having examined the validity of the deed of adoption in the light of the evidence adduced on behalf of the parties coming to the conclusion that in fact there was no valid adoption, held, Supreme Court, in such circumstances, should be reluctant to interfere with such findings while exercising jurisdiction under Article 136 — Constitution of India — Article 136.

Lal Man v. Deputy Director of Consolidation [Bench Strength 2], CA 1172/1980 (01/08/1996), 1998(8) SCC 693 [N.P. Singh, J.: K. Venkataswami, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 12 & 14 — Effect of the adoption — The adopted child as on the date of adoption, acquires all the relationship in the adopted family subject to anything contrary under the Act — The adopted child however cannot divest any person of the property which stood vested in such person prior to adoption.

HELD: An adopted child shall be deemed to be the child of his adoptive father or mother for all purposes with effect from the date of the adoption and from such date all 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. As a consequence, when a widow adopts a child, the child not merely acquires an adoptive mother but also acquires other relationships in the adoptive family, unless there is anything to the contrary in the Hindu Adoptions and Maintenance Act.

This position is reinforced by Section 14(4) which set out that where a widows or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step- father of the adopted child. In other words, the family relationship get crystalised as at the date of adoption. The child will be deemed to be the child of the parent who adopts the child and the existing or deceased spouse of that parent (as the case may be), if any, will be considered the child’s father or mother, A spouse subsequently acquired by the adoptive parent becomes the step-parent of the adopted child. The adopted child, however, cannot divest any person of any property already vested in that person.

Chandan Bilasini v. Aftabuddin Khan [Bench Strength 2], CA 1245/1977 (16/11/1995), 1996 AIR(SC) 591: 1995(Supp-5) SCR 361: 1996(7) SCC 13: 1995(9) JT 364: 1995(6) SCALE 459: 1996(2) SCJ 210: 1996(1) CLT 205(SC): 1996(2) CLT 253(SC): 1996(1) DMC 579: 1996(1) HLR 79 [M.M. Punchhi, J.: Sujata V. Manohar, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 12 & 14 — Adoption of a child by a Hindu widow — Validity of — The adoption carried out with due ceremony in accordance with Hindu Rites — None of the persons present at the ceremony examined except the three witnesses — Registered deed of adoption also executed — The adoption is valid and in accordance with law.

HELD: There were three other witnesses who were present at the time of the adoption ceremony who were examined – one of them being the priest and the other one being a person who was also present at the time when the deed of admission of adoption was executed by the first plaintiff adoptive mother and was an attesting witness to the deed. The mere fact that some other persons who were also present at the adoption ceremony were not examined, cannot be considered as making the adoption doubtful. There is clear testimony relating to the ceremony of taking and giving the respondent Amaresh Sarkar in adoption as between the natural parents and the adoptive mother. The registered document regarding this adoption which was executed within a month of the adoption by the adoptive mother should also be given its due weight as evidence of adoption. There is also a second documents executed by the natural father after a lapse of two years. Since the natural father would be interested in executing such a document which would give an advantage to his natural son, the same probative value may not be attached to the second document. But the earlier document which is executed by the adoptive mother must be given its due weight. It has been properly proved and is a registered document.

Chandan Bilasini v. Aftabuddin Khan [Bench Strength 2], CA 1245/1977 (16/11/1995), 1996 AIR(SC) 591: 1995(Supp-5) SCR 361: 1996(7) SCC 13: 1995(9) JT 364: 1995(6) SCALE 459: 1996(2) SCJ 210: 1996(1) CLT 205(SC): 1996(2) CLT 253(SC): 1996(1) DMC 579: 1996(1) HLR 79 [M.M. Punchhi, J.: Sujata V. Manohar, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 7 — Adoption of a child by male Hindu who has a wife living at the time of adoption — The wife not only declined to participate in the adoption proceedings but also declined to give consent for the said adoption — Such adoption is invalid.

Kashibai v. Parwatibai [Bench Strength 2], CA 9100/1995 (25/09/1995), 1995(Supp-4) SCR 63: 1995(6) SCC 213: 1995(7) JT 48: 1995(5) SCALE 615: 1995(3) CCC 565: 1996(2) CLT 197(SC): 1996(2) DMC 266: 1995(2) HLR 712 [N.P. Singh, J.: Faizan Uddin, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 125 & 127 — Maintenance — Enhancement of — Respondent — Husband having two daughters out of first marriage living with their mother and two children out of second marriage — Elder daughter studying for Engineering and the younger one in 12th Class — Quantum of maintenance — Direction given to deposit a sum of Rs.30,000/- each in the name of two girls separately in a scheduled Bank in fixed deposit for a period of two years — Rs.1000/- each to the two girls has to be paid as a monthly maintenance — As and when the marriage of the girls is fixed, he shall pay Rs.1,00,000 (One lakh) on the marriage of each of the girls — Hindu Law — Maintenance — Enhancement of — Hindu Adoption and Maintenance Act, 1956 — Sections 23 & 20.

S. Jayalakshmi v. T. Prakash Rao [Bench Strength 2], CA 1245/1995 (18/04/1995), 1996(8) SCC 501 [Kuldip Singh, J.: S. Saghir Ahmad, J.] <<LAWPACK SUPREME COURT>>

Entry Filed under: Judgements

Leave a Comment

Required

Required, hidden

Some HTML allowed:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

Subscribe to the comments via RSS Feed


News That Matters

Recent Posts

Subscribe

Important Links