Sunday, 8 March 2020

Supreme Court: No valid adoption of child without consent of wife and actual ceremony of adoption

The Appellant relied upon a judgment of this Court
in L. Debi Prasad (Dead) by Lrs. (supra) to
submit that abundant evidence submitted by her before
Court would point to the fact that she was brought up as
the daughter of the Respondent and her husband (Late)
Narasimhulu Naidu. Such evidence can be taken into
account to draw inference that she was adopted by
them. The facts in L. Debi Prasad (Dead) by Lrs.
(supra) case are similar to those in the instant case. In

that case, Shyam Behari Lal was adopted by Gopal Das
in the year 1892 when he was an infant. Shyam Behari
Lal was unable to establish the actual adoption but has
produced considerable documentary evidence to show
that he was treated as the son of Gopal Das for a
quarter of century. This Court accepted the submission
of Shyam Behari Lal and held that there was sufficient
evidence on record to infer a valid adoption. Though
the facts are similar, we are unable to apply the law laid
down in L. Debi Prasad (Dead) by Lrs. (supra) to the
instant case. L. Debi Prasad (Dead) by Lrs. (supra)
case pertains to adoption that took place in the year
1892 and we are concerned with an adoption that has
taken place after the Act of 1956 has come into force.
Though the Appellant has produced evidence to show
that she was treated as a daughter by (Late)
Narasimhulu Naidu and the Defendant, she has not
been able to establish her adoption. The mandate of
the Act of 1956 is that no adoption shall be valid unless
it has been made in compliance with the conditions

mentioned in Chapter I of the Act of 1956. The two
essential conditions i.e. the consent of the wife and the
actual ceremony of adoption have not been established.
This Court by its judgment in Ghisalal v. Dhapubai
(Dead) by Lrs. & Ors.2 held that the consent of the
wife is mandatory for proving adoption.

Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8814 OF 2010

M. Vanaja Vs  M. Sarla Devi

L. NAGESWARA RAO, J.
Dated:March 06, 2020.

1. The Appellant filed a civil suit for a declaration that
she is the adopted daughter of the Respondent and Late
Narasimhulu Naidu. She sought for partition of the suit
schedule property. The suit was dismissed and the
judgment of the trial court was upheld by the High Court
of Andhra Pradesh at Hyderabad. Aggrieved by the
judgment, the Appellant has filed the above Appeal.
2. O.S. No. 190 of 2004 was filed by the Appellant in
the City Civil Court, Hyderabad. It was averred in the
plaint that both the natural parents and the Appellant

died when she was very young. Her mother is the sister
of the original Respondent– M. Sarla Devi (died)-
Respondent herein. Appellant pleaded in the suit that
she was brought up as the daughter of the Respondent–
M. Sarla Devi and her husband Late Narasimhulu Naidu.
In the records of School and College, the names of the
original Respondent and her husband were entered as
the parents of the Appellant. Even in the government
records like ration card, etc., the Appellant was
mentioned as the daughter of the original Respondent
and her husband.
3. Narasimhulu Naidu worked as a Lift Operator in the
Andhra Pradesh State Electricity Board (APSEB) and
retired on 30.06.1999. In his service record, the
Appellant is referred to as his daughter. The Appellant
has been nominated in the application for pension of
Narasimhulu Naidu. It was the case of the Appellant in
the plaint that her adoptive parents initially did not
approve the marriage of the Appellant with the person
of her choice, but later arranged a grand reception at
[2]
Hotel Swagat, Ameerpet, Hyderabad. Narasimhulu
Naidu was the absolute owner of a building situated at
Srinivas Nagar East, Gayatri Nagar, Ameerpet,
Hyderabad. He also purchased certain other properties.
Narasimhulu Naidu supplied textile materials and
clothes to the employees of the APSEB and the
Appellant was looking after the business. Narasimhulu
Naidu died intestate on 19.08.2003. According to the
Appellant, she along with the Respondent succeeded to
the entire estate of Narasimhulu Naidu and that she is
entitled to half share of his properties. It was submitted
that due to the ill-advice of relatives, the original
Defendant- M. Sarla Devi turned against the Appellant
and was making an attempt to alienate the properties.
As the negotiation for an amicable settlement failed, the
Appellant was constrained to file a suit for a declaration
that she is the adopted daughter of the original
Respondent and Narasimhulu Naidu, and for partition of
the properties belonging to Narasimhulu Naidu.
[3]
4. The original Respondent filed a written statement
in which it was stated that the Appellant is the daughter
of her younger sister Manjula. As the Appellant’s
biological parents died when she was very young, the
Respondent and her husband Narasimhulu Naidu
brought her up. They ensured that she had good
education but the Appellant was never adopted by the
Respondent and her husband. As such, it was
contended by the Respondent that the Appellant does
not have any right in the properties belonging to the
Defendant’s husband.
5. By a judgment dated 15.09.2006, the City Civil
Court dismissed the suit. The principal issues that were
framed by the City Civil Court relating to the relief of
declaration that the Appellant is the daughter of the
Respondent and deceased Narasimhulu Naidu and her
right for partition of the suit scheduled properties were
answered in favour of the Defendant. Relying upon
Sections 7 and 11 of Hindu Adoptions and Maintenance
Act 1956 (hereinafter referred to as the ‘Act of 1956’),
[4]
the trial court held that the Appellant could not prove
the ceremony of adoption. The High Court dismissed
the Appeal filed against the judgment of the trial court.
The High Court re-appreciated the evidence on record
and held that except the statement of the Appellant that
she was adopted by the Respondent and (Late)
Narasimhulu Naidu, there is no other evidence to show
that the actual adoption took place in accordance with
the procedure prescribed in the Act of 1956. The
evidence that was adduced on behalf of the Appellant
was brushed aside by the High Court which held that
the Appellant cannot succeed unless she proves the
adoption took place in accordance with the provisions of
the Act of 1956.
6. We have heard Mr. Kedar Nath Tripathy, learned
counsel appearing for the Appellant and Mr. T.V.
Ratnam, learned counsel appearing for the Respondent.
The learned counsel for the Appellant strenuously
submitted that there is overwhelming evidence brought
on record to show that the Appellant was treated as the
[5]
daughter of Narasimhulu Naidu and the Respondent
husband for all practical purposes. He relied upon the
School and College records apart from service record of
Narasimhulu Naidu in support of his submission. He
stated that it is not possible for the Appellant to prove
the manner in which the adoption took place as she was
very young at that time. He relied upon the judgment
of this Court in L. Debi Prasad (Dead) by Lrs. v. Smt.
Tribeni Devi & Ors.1 to argue that the subsequent
events can be taken into account for the purpose of
proving adoption.
7. Learned counsel for the Respondent urged that the
mandatory requirement of proving the factum of
adoption under Sections 7 and 11 of the Act of 1956
has not been complied with by the Appellant. He
argued that there is no pleading in the plaint regarding
the particulars regarding the ceremony of giving and
taking over. Any amount of evidence without the actual
adoption being proved cannot assist the Appellant in
1 (1970) 1 SCC 677
[6]
getting relief. He also relied upon the evidence of the
grand-mother (PW-3) of the Appellant i.e. mother of the
Respondent, who also supported the case of the
Respondent and deposed in Court that the Appellant
was never adopted.
8. The undisputed facts of this case are that the
Appellant is the daughter of the original Defendant’s
sister. The parents of the Appellant died when she was
very young. As the Appellant was very young, she was
brought by her grand-mother and given to the
Respondent and her husband to be taken care of. The
Appellant was brought up by the Respondent and her
husband, Narasimhulu Naidu. The School and College
records and other documents that were filed in Court by
the Appellant would show that the Respondent and her
husband were shown as the parents of the Appellant.
Eventually, the Appellant married and started living
separately. After the death of Narasimhulu Naidu, the
Respondent was residing in the suit schedule property
and was in enjoyment of the properties of Narasimhulu
[7]
Naidu. The request made by the Appellant for partition
of the properties was turned down by the Respondent
leading to the filing of the Civil Suit.
9. The only points that arises for our consideration are
whether the Appellant has proved that she has been
adopted by the Respondent and Respondent’s husband,
whether she is entitled to a declaration that she is the
daughter of the Respondent and Narasimhulu Naidu,
and whether the Appellant is entitled to partition of the
properties belonging to Narasimhulu Naidu.
10. Section 6 of the Act of 1956, prescribes the prerequisites
for a valid adoption, which are :-
“6 Requisites of a valid adoption – No
adoption shall be valid unless –
(i) the person adopting has the capacity,
and also the right, to take in adoption,
(ii) the person giving in adoption has the
capacity to do so;
[8]
(iii) the person adopted is capable of being
taken in adoption; and
(iv) the adoption is made in compliance with
the other conditions mentioned in this
Chapter”
11. Section 7 provides that the male Hindu who is of
sound mind and is not a minor has the capacity to take
a son or a daughter in adoption. The consent of his wife
has been made mandatory by the proviso to Section 7.
Section 9 deals with persons who are capable of giving
a child in adoption. The other conditions for a valid
adoption are stipulated in Section 11 of the Act of 1956.
One such condition is 11 (6) which is as under:-
“11. Other conditions for a valid adoption.
xx
(vi) the child to be adopted must be
actually given and taken in adoption by the
parents or guardian concerned or under their
authority with intent to transfer the child from
the family of his birth (or in the case of an
abandoned child or child whose parentage is
[9]
not known, from the place or family where it
has been brought up) to the family of its
adoption:
Provided that the performance of data homam
shall not be essential to the validity of
adoption”
12. A plain reading of the above provisions would make
it clear that compliance of the conditions in Chapter I of
the Act of 1956 is mandatory for an adoption to be
treated as valid. The two important conditions as
mentioned in Sections 7 and 11 of the Act of 1956 are
the consent of the wife before a male Hindu adopts a
child and proof of the ceremony of actual giving and
taking in adoption. The Appellant admitted in her
evidence that she does not have the proof of the
ceremony of giving and taking of her in adoption.
Admittedly, there is no pleading in the plaint regarding
the adoption being in accordance with the provisions of
the Act. That apart, the Respondent who is the adoptive
[10]
mother has categorically stated in her evidence that the
Appellant was never adopted though she was merely
brought up by her and her husband. Even the grandmother
of the Appellant who appeared before the Court
as PW-3 deposed that the Appellant who lost her
parents in her childhood was given to the Respondent
and her husband to be brought up. PW 3 also stated in
her evidence that the Appellant was not adopted by the
Respondent and her husband. Therefore, the Appellant
had failed to prove that she has been adopted by the
Respondent and her husband Narasimhulu Naidu.
13. The Appellant relied upon a judgment of this Court
in L. Debi Prasad (Dead) by Lrs. (supra) to
submit that abundant evidence submitted by her before
Court would point to the fact that she was brought up as
the daughter of the Respondent and her husband (Late)
Narasimhulu Naidu. Such evidence can be taken into
account to draw inference that she was adopted by
them. The facts in L. Debi Prasad (Dead) by Lrs.
(supra) case are similar to those in the instant case. In

that case, Shyam Behari Lal was adopted by Gopal Das
in the year 1892 when he was an infant. Shyam Behari
Lal was unable to establish the actual adoption but has
produced considerable documentary evidence to show
that he was treated as the son of Gopal Das for a
quarter of century. This Court accepted the submission
of Shyam Behari Lal and held that there was sufficient
evidence on record to infer a valid adoption. Though
the facts are similar, we are unable to apply the law laid
down in L. Debi Prasad (Dead) by Lrs. (supra) to the
instant case. L. Debi Prasad (Dead) by Lrs. (supra)
case pertains to adoption that took place in the year
1892 and we are concerned with an adoption that has
taken place after the Act of 1956 has come into force.
Though the Appellant has produced evidence to show
that she was treated as a daughter by (Late)
Narasimhulu Naidu and the Defendant, she has not
been able to establish her adoption. The mandate of
the Act of 1956 is that no adoption shall be valid unless
it has been made in compliance with the conditions

mentioned in Chapter I of the Act of 1956. The two
essential conditions i.e. the consent of the wife and the
actual ceremony of adoption have not been established.
This Court by its judgment in Ghisalal v. Dhapubai
(Dead) by Lrs. & Ors.2 held that the consent of the
wife is mandatory for proving adoption.
14. In view of the aforementioned facts and
circumstances, we find no error in the judgment of the
High Court. Therefore, the Appeal is dismissed.
……...............................J.
[L. NAGESWARA RAO]
…....……..........................J.
[DEEPAK GUPTA]
New Delhi,
March 06, 2020.
2 (2011) 2 SCC 298

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