Supreme Court: The 3-Judges Bench of Harilal Kania, C.J., and M.C. Mahajan and Chandrasekhara Aiyar*, JJ., upheld the Bombay High Court's decision wherein it was observed that “in Hindu law, the giving and the taking of the boy ‘in adoption' was only required and nothing more and so long as it was made out that the mother of the boy gave him in adoption and the adoptive mother took him as her adopted child with the intention to adopt, no further or separate declaration of any kind was necessary”.
Background
One Kanhayalalsingh, who had three brothers, died on 25-2-1936 issueless, leaving behind his widow, Tapabai, who died on 28-7-1942. Kewalsingh and Chayansingh, two of the three brothers of Kanhayalalsingh, pre-deceased him. Narayansingh, the last of the four brothers, filed a suit on 2-10-1942 against Sumersingh alias Shankarsingh, son of Kewalsingh, claiming the properties of Kanhayalalsingh and Tapabai as the nearest heir, and alleging that the defendant had taken wrongful possession of the same. The defendant, who was the son of Kewalsingh, resisted the suit, and stated that he was adopted to Kanhayalalsingh by his widow, Tapabai, and was therefore entitled to the property. He further alleged that he got the stridhanam properties also under a will executed by the adoptive mother, Tapabai.
The Subordinate Judge decreed it in favour of the plaintiff, holding that the defendant failed to prove his adoption, that Tapabai was prohibited by her husband from making an adoption, and that the will set up by the defendant was a forged document. The defendant preferred an appeal to the Bombay High Court (‘High Court'), which held that there was a valid adoption and that there was no prohibition against an adoption by Tapabai and thus, the plaintiff’s suit was dismissed. The present appeal was directed against the High Court’s decree dismissing the plaintiff’s suit.
Analysis, Law, and Decision
This Court observed that the Subordinate Judge while holding that the adoption was not proved, took the view that a separate and independent declaration of adoption, either contemporaneous with or subsequent to the adoption, was necessary under the Hindu law, and as the evidence did not establish any such declaration, the adoption was probably not in fact made.
This Court noted that the Subordinate Judge had observed that “the physical act of giving and taking must be accompanied by a specific declaration on the part of the giver as regards her consent and on the part of the taker as regards her acceptance. This want of declaration on the part of the adoptive mother vitiated the factum of adoption. Not only that but it created a doubt in the mind as regards the factum of adoption and as regards the consent of Tapabai to the whole adoption ”.
This Court opined that the Subordinate Judge went entirely wrong in this view. This Court observed that “what Hindu law required was the giving and the taking of the boy ‘in adoption' and nothing more. So long as it was made out that the mother of the boy gave him in adoption and the adoptive mother took him as her adopted child with the intention to adopt, no further or separate declaration of any kind was necessary ”. This Court noted that the giving and taking of the defendant in adoption was proved by Tapabai, who took the defendant in adoption, and Gopabai, who gave the boy in adoption, and there were other witnesses who were present at the ceremony. In this case, we have also a formal declaration very soon after the adoption. This Court noted that there were two deeds of adoption, one on the same date as the adoption and another two days later. The first deed could not be registered due to technical difficulty, and the latter deed therefore came into existence.
This Court noted that the High Court had observed that there was overwhelming evidence on the question of the fact of adoption and that the assessment of this evidence by the Subordinate Judge was coloured by the wrong angle of vision from which he approached the question by imagining that some sort of independent declaration was necessary. The Subordinate Judge stated that the adoption was in all probability foisted upon Tapabai without any knowledge of what she was doing and that she was forced to make a farce of an adoption. In the face of the two deeds of adoption and her own deposition, the High Court observed that it was impossible to agree with the view of the Subordinate Judge. This Court noted that the High Court had observed that there was no case set up of coercion, undue influence, or ignorance.
This Court held that the High Court had reached the correct conclusion, and thus, this Court affirmed the High Court's decree and dismissed the present appeal with costs.
[Nayansingh Gangaramsingh v. Sumersingh Kewalsingh, 1951 SCC 1050, decided on 26-10-1951]
Note: Requisites for valid adoption under Hindu Adoptions and Maintenance Act, 1956
Section 6 of the Hindu Adoptions and Maintenance Act, 1956 (‘HAM Act') states that no adoption will be valid unless (a) the person adopting has the capacity, and the right, to take in adoption; (b) the person giving in adoption has the capacity to do so; and (c) the person adopted is capable of being taken in adoption. Section 11 of the HAM Act states certain other conditions that need to be complied with for a valid adoption. Section 11(vi) of the HAM Act states that 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 its birth to the family of its adoption. The HAM Act nowhere mentions that a separate declaration was required for a valid adoption. Thus, it can be said that the requirement of adoption before the commencement of the HMA Act was the same as it is now.
Advocates who appeared in this case :
For the Appellant: S.B. Jathar, Advocate
For the Respondent: K.R. Bengeri, Advocate
*Judgement authored by: Justice Chandrasekhara Aiyar
