PETITIONER LAWYER
Shri Punit Jain
RESPONDENT LAWYER
Shri Nikhil Majithia
STATUTES:
Hindu Adoption and Maintenance Act, 1956
The Code of Civil Procedure, 1908
Constitution of India
BENCH:
G.S. Singhvi
Asok Kumar Ganguly
DATE OF JUDGEMENT:
12 January, 2011.
FACT:
Ghisalal was given in Baisakh of Samvat 2016 (1959) by his father, Kishanlal in adoption to Gopalji. Ceremonies like putting of tilak on his forehead and distribution of sweets were performed and registered deed of adoption was executed by Kishanlal and Gopalji on 25.6.1964.
Gopalji had inherited certain agricultural lands of villages Jeeran, Arnya Barona, Kuchrod, a two storeyed house and one court-yard from his father Roopji. After adoption, Ghisalal became coparcener in the family of Gopalji and thereby acquired right in the suit properties.
Gopalji executed three Gift Deeds dated 22.10.1966 whereby he transferred lands of villages Jeeran, Arnya Barona and Kuchrod to his wife Dhapubai and the latter sold a portion of land in survey No.945 of village Kuchrod to Sunderbai vide Sale Deed dated 19.1.1973. Gopalji pleaded that he had not adopted Ghisalal and no ceremony was performed.
Dhapubai also denied the factum of the adoption of Ghisalal by Gopalji and claimed that she had not given consent for the same.
FACT IN ISSUE:
- Whether the suit properties are the property of Joint Hindu Family?
- Whether the plaintiff is the legally adopted son of Gopalji and Dhapubai ?
- Whether the Gift Deed dated 22.10.66 is illegal and void?
- Whether the sale deed dated 19.1.73 has no effect on the plaintiff?
ARGUMENTS FROM PETITIONER:
- Shri Puneet Jain, learned counsel for Ghisalal argued that the trial Court and the lower appellate Court had concurrently held that Ghisalal was taken in adoption strictly in accordance with law and a registered deed of adoption was also executed by the natural and adoptive fathers and argued that the High Court rightly declined to upset the said finding.
- Learned counsel emphasized that the consent of Dhapubai was rightly presumed by the Courts below because she was present in the ceremonies of adoption and did not question the adoption till the stage of filing written statement in the suit filed by Ghisalal.
- Learned counsel further argued that after his adoption Ghisalal became a coparcener in the family of Gopalji and was entitled to half share in the properties inherited by his adoptive father and, as such, the finding recorded by the lower appellate Court and the High Court on his locus to challenge Gift Deed dated 29.11.1944, which adversely affected his right in the suit properties is legally unsustainable.
ARGUMENTS FROM RESPONDENT:
- Shri Nikhil Majithia, learned counsel for Dhapubai argued thateven though all the Courts concurrently held that Ghisalal was validly adopted by Gopalji, the finding recorded on this issue is liable to be set aside because his client had not given consent for the adoption.
- Learned counsel further argued that mere presence of Dhapubai at the place of ceremonies of adoption could not be made basis for assuming that she had willingly consented to the adoption of Ghisalal by Gopalji. He submitted that the consent contemplated by the proviso to Section 7 of the 1956 Act is mandatory and unless the consent of the wife is proved, the adoption cannot be treated valid.
JUDGEMENT HELD:
- Learned Single Judge of the High Court upheld the judgement of trial Court and the lower appellate Court and held that Ghisalal was validly adopted by Gopalji and he became coparcener in the family of adoptive father.
JUDGEMENT REASONING:
- Presence of Dhapubai in adoption ceremony is her consent.
- The registered deed of adoption dated 25.6.1964 proofs that Ghisalal was validly adopted.
CONCLUSION:
In Indian society, a male spouse enjoyed the position of dominance for centuries together. This was particularly so in Hindu families. Under the old Hindu Law, a Hindu male had an absolute right to adopt a male child and his wife did not have such right. After passing Hindu Adoption and Maintenance Act, 1956 both male and female have equal right.
BY GAURAV KUMAR