Partly allowed

Shyam Lal Mahant v. Navratan Das

Chhattisgarh HC21 Nov 2019SA/155/2009

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Chhattisgarh declared the adoption deed void for lack of the adoptive mother's consent under Section 7 of the Hindu Adoptions and Maintenance Act, 1956, setting aside the lower courts' finding of limitation bar.

What did the court decide?

Adoption deed dated 25.1.1982 declared void and not binding on the appellant and her family. Finding of limitation bar set aside.

Shyam Lal Mahant Vs Navratan Das — Succession and Inheritance | Chhattisgarh HC (2019)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.155 of 2009

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Piyari Bai (died and deleted)

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Shyam Lal Mahant, S/o Late Nanki Das Mahant, Aged
about 48 years, R/o Village-Chhatamura, Raigarh,
Tahsil & District-Raigarh (CG)

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---- Appellant

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Versus

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Navratan Das, S/o Shri Ghasidas Panika, Aged about
35 years, Occupation 35 years, Occupation-Kotwar &
Agriculturist, R/o Village-Chhatamura, Tahsil &
District-Raigarh (CG)

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---- Respondents

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For Appellant :Mr.Vineet Kr.Pandey, Advocate
For Respondent/Defendant :None present though served

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Hon'ble Shri Justice Sanjay K. Agrawal

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Judgment On Board

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21/11/2019

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This plaintiff's second appeal under Section 100 of the CPC was admitted for hearing by formulating the following substantial questions of law: -

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“1. Whether in view of the provisions of
Section 7 of the Hindu Adoptions and
Maintenance Act, 1956 which provides that
in the adoption, if the husband has a wife
living, he shall not adopt except with the
consent of his wife unless the wife has
completely and finally renounced the world
or has ceased to be Hindu or has been
declared by a Court of competent
jurisdiction to be of unsound mind, the
deed of adoption dated 25.01.1982 which is
not signed by the plaintiff/adoptive mother
is valid in law ?

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2. Whether the finding recorded by the
Courts below that the suit is barred by
limitation is in accordance with law when
the plaintiff being the adoptive mother had
not signed the deed of adoption dated

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25.01.1982 ?”

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(For the sake of convenience, parties
hereinafter will be referred as per their
status shown and ranking given in the plaint
before the trial Court.)

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The suit property was originally held by Mantardas Panika and original plaintiff-Piyaribai was his wife, who died during pendency of this second appeal. The plaintiff filed a suit stating interalia that she and her husband was issueless. Her husband was kotwar of village Chhatamura and since they were issueless, Ghasidas, father of the defendant, developed intimacy with her husband to get the post of Kotwar and by deceiving her husband on 25.1.1982 got the adoption deed registered stating that they have adopted defendant-Navratandas as their adopted son, whereas she has never given her consent on such adoption and therefore, adoption deed dated 25.1.1982 is null & void and on the basis of said adoption deed, the defendant has obtained the post of kotwar, as such, it be set aside and the defendant be restrained from interfering with kotwari land.

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The defendant by filing written statement has denied the averments made in the plaint stating inter-alia that he was validly adopted by the plaintiff and her husband, as such, the plaintiff

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is not entitled for any relief and the suit
deserves to be dismissed.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 27.2.2007, dismissed the suit holding that the adoption deed dated 25.1.1982 is valid document. On appeal being preferred by the plaintiff under Section 96 of the CPC, the first appellate Court affirmed the judgment and decree of the trial Court. Questioning the judgment and decree of the first appellate Court, the plaintiff prepared this second appeal under Section 100 of the CPC before this Court, in which substantial questions of law have been formulated which have been set-out in the opening paragraph of this judgment.

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Mr.Vineet Kumar Pandey, learned counsel for the appellant, would submit that both the Courts below are absolutely unjustified in holding that adoption deed is valid ignoring the provisions contained in Section 7 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter called as 'Act of 1956') as

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consent of the wife is necessary for valid
adoption, if the husband has a wife living, unless
the wife has completely and finally renounced the
world or has ceased to be Hindu or has been
declared by a Court of competent jurisdiction to be

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of unsound mind, that is not the case here. He
would further submit that it was not signed by the
plaintiff and no ceremonies of adoption have taken
place and even it has not been pleaded by the
defendant. Therefore, the judgment and decree of
both the Courts below deserve to be set aside. He
would also submit that since the adoption deed is
in violation of Section 7 of the Act of 1956,
therefore, it would be void document as per Section
5(2) of the Act of 1956 and as such, the adoption
deed is not required to be set aside. Therefore,
dismissal of suit as barred by limitation is
unsustainable and bad in law.

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None present for the respondent/defendant though served.

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I have heard learned counsel for the appellant, considered his submissions made hereinabove and also went through the record with utmost circumspection.

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The question for consideration would be, whether both the Courts below are justified in holding the adoption deed (Ex.P-3) to be valid as it is the case of the plaintiff that she has not consented and her consent is mandatory under proviso to Section 7 of the Act of 1956.

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In order to consider the plea raised at the Bar, it

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would be appropriate to notice the contents of
adoption deed dated 25.1.1982 which states as
under:-

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xksnkukek

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eu ds earjnkl oYn cq)qnkl tkr ifudk lkfdu Nkrkeqjk rglhy oks ftyk jk;x<+ dk gwa tks fd esjk dksbZ yM+dk ;k yM+dh okfj'k ugha gS vkSj vc gksus dk Hkjkslk ugha gS blls eSa ok esjh L=h nksuksa ds jkth ls uk0 jrunkl oYn Jh ?kklhnkl ifudk Nkrkeqjk rg0 o ftyk jk;x<+ dsk blds eka cki ls ekaxdj bls vius tkfr; fjokt ds vuqlkj xksn esa ysdj bls vius lkFk j[kdj bldk ikyu iks"k.k djrs vk jgs gS xksnukek dh fy[kk i<+h ugha gq, jgus ls ;g xksnukek o gd uk0 jrunkl oYn ?kklhnkl ifudk Nkrkeqjk rg0 oks ftyk jk;x< dks ;g xksnukek fy[k dj bdjkj djrk gwa fd uk0 jrunkl ifudk vktUe esjk iq= gks x;kA vc og vius firk ds txg esjk uke fy[kk djs bls vc esjs py vPky lEifr ij esjs futh iq= ds vuqlkj ekfydkuk oks okfj'kkuk gd gkfyl gks x;kA

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esjs oks esjh L=h ds LoxZokl gksus esa esjk iq= jrunkl ifudk tkr fjokt ds vuqlkj e`rd deZ vkfn djsxk ;g gd vU; dks gkfly ugha gksxkA bl xksnukek ds f[kykQ dksbZ vU; O;fDr fdlh fdLe dk nkok ;k mtj djus ls ;g uktk;t gksxkA

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fygktk ;g xksnukek esjs [kq'kh jkth ls fy[k fn;k fd oDr ij dke vkosA rk- 25@1@1982

cdye%& pfUnzdkizlkn

x- eqdqnkl eUrjnkl

x- lqukÅnkl

A careful perusal of the aforesaid adoption

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deed would show that it is said to be executed by
Mantardas (plaintiff's husband) and it has been
signed in presence of two witnesses Mukundas and
Sunaudas on 25.1.1982 and in which Mantardas has
stated about the consent of his wife also in
adoption of the defendant and fact of adoption has
taken place earlier and it is only the deed

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acknowledgingtheearlieradoption,but

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surprisingly, Mantardas's wife i.e. plaintiff
herein was alive on the date of execution of
adoption deed and it has not been signed by the
plaintiff. Apart from this, it has been stated that
Mantardas has asked for adoption and it has been
given to him, but there is no consent or no
statement that natural father and father of
defendant-Navratandashavegivendefendant-
Navratandas on adoption, which is one of the
mandatory requirement as it has not been consented
by natural father and mother of Navratandas as
required under Section 11(iv) of the Act of 1956.
Even otherwise, there is no evidence on record to
show that the defendant was actually given and
taken in adoption by natural parents or guardian
concerned or under their authority with intent to
transfer the child from the family of its birth in
formal ceremony held and no witness of the said
adoption deed has been examined to prove the said
adoption deed.

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The short question for consideration would be, whether the fact of adoption of the defendant by the plaintiff is established that he is adopted son of the plaintiff ?

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In order to consider the said plea, it would be appropriate to notice the necessary provisions in

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this regard contained in the Act of 1956. Section

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7 of the Act of 1956 provides as under:-

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“7. Capacity of a male Hindu to take in
adoption.-Any male Hindu who is of sound
mind and is not a minor has the capacity to
take a son or a daughter in adoption:

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Provided that, if he has a wife living,
he shall not 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.

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Explanation.-If a person has more than
one wife living at the time of adoption,
the consent of all the wives is necessary
unless the consent of any one of them is
unnecessary for any of the reasons
specified in the preceding proviso.”

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Section 10 of the Act of 1956 provides as under: -

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“10. Persons who may be adopted.—No person
shall be capable of being taken in adoption
unless the following conditions are
fulfilled, namely—

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(i) he or she is a Hindu;

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(ii) he or she has not already been
adopted;

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(iii) he or she has not been married,
unless there is a custom or usage
applicable to the parties which permits
persons who are married being taken in
adoption;

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(iv) he or she has not completed the age of
fifteen years, unless there is a custom or
usage applicable to the parties which
permits persons who have completed the age
of fifteen years being taken in adoption.”

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Section 10 of the Act of 1956 states about the

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persons who may be adopted. Section 11 speaks
about the other conditions for a valid adoption.

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Clauses (4) and (6) of Section 11 are relevant
which are extracted herein-below: -

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“11. Other conditions for a valid adoption.
—In every adoption, the following
conditions must be complied with:

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(i) to (iii)xxxxxxxxx

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(iv) if the adoption is by a female and the
person to be adopted is a male, the
adoptive mother is at least twenty-one
years older than the person to be adopted;

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(v)xxxxxxxxx

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(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 its birth or in
the case of an abandoned child or a child
whose parentage is not known, from the
place or family where it has been brought
up to the family of its adoption:

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Provided that the performance of datta homan , shall not be essential to the validity of an adoption.”

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For a valid adoption, the physical act of

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giving and taking is an essential requisite. The give and take in adoption is a requirement under Section 11(vi) of the Act of 1956 and stands as a sine qua non for a valid adoption (see Jai Singh v. Shakuntala 1).

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In the matter of Kishori Lal v. Chaltibai 2, the Supreme Court has held that as an adoption results in changing the course of succession, depriving wives and daughters of their rights and

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1 (2002) 3 SCC 634

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2 AIR 1959 SC 504

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transferring properties to comparative strangers or
more remote relations it is necessary that the
evidence to support it should be such that it is
free from all suspicions of fraud and so consistent
and probable as to leave no occasion for doubting
its truth.

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The said judgment has further been followed in

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the matter of Madhusudan Das v. Smt. Narayanibai
(Deceased) by L.Rs. and others3 in which it has been
held that a person who seeks to displace the

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natural succession to property by alleging an
adoption must discharge the burden that lies upon
him by proof of the factum of adoption and its
validity. It has been further held as under: -

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“For a valid adoption, the ceremony of
giving and taking is an essential requisite
in all adoptions, whatever the caste. This
requisite is satisfied in its essence only
by the actual delivery and acceptance of
the boy, even though there exists an
expression of consent or an executed deed
of adoption. In some cases, to complete
the adoption a “datta homam” has been
considered necessary, but in the case of
the twice-born classes, no such ceremony is
needed if the adopted boy belongs to the
same gotra as the adoptive father.”

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Consequence of non-compliance of the provisions

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in adoption has been provided in Section 5 of the
Act of 1956 which provides as under:-

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“5. Adoptions to be regulated by this
Chapter.-(1) No adoption shall be made
after the commencement of this Act by or to

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3 (1983) 1 SCC 35

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a Hindu except in accordance with the
provisions contained in this Chapter, and any
adoption made in contravention of the said
provisions shall be void.

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(2) An adoption which is void shall neither
crate any rights in the adoptive family in
favour of any person which he or she could
not have acquired except by reason of the
adoption nor destroy the rights of any person
in the family of his or her birth.”

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The aforesaid provision clearly provides that any
adoption made in contravention of the provisions of
the said Act shall be void and an adoption which is
void shall not create any rights in the adoptive
family in favour of any person which he or she could
not have acquired except by reason of the adoption.

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Reverting to the facts of the present case, in light of legal position, it is quite vivid that in the alleged adoption made by husband of the plaintiff, consent of the adoptive mother is absolutely missing. The defendant has failed to prove express or implied consent of adoptive mother (plaintiff) in the said adoption, which is in total violation of proviso to Section 7 of the Act of 1956 and it is void by virtue of Section 5(1) of the Act of 1956

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The Supreme Court in the matter of Ghisalal v. Dhapubai (Dead) by L.Rs. and others 4 has clearly held that the consent of wife envisaged in proviso to Section 7 of the Act of 1956 should either be in

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4 AIR 2011 SC 644

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writing or reflected by an affirmative/positive act
voluntarily and willingly done by her. It was
further held that if adoption by a Hindu male
becomes subject-matter of challenge before the
Court, the party supporting 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 ceremonies of adoption
with an affirmative mindset to support the action
of husband to take a son or daughter in adoption.
It was also held that the Court cannot presume the
consent of the 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.
Their Lordships further held that it could be said
that adoption of son by husband was not valid
because consent of wife had not been obtained as
per mandate of proviso to Section 7 of the Act of
1956.

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The registration of adoption deed (Ex.P-3) by virtue of Section 16 of the Act of 1956 would also not save the adoption which is otherwise invalid. Once the statute declares an adoption made in contravention of the provisions therein to be void,

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the purported act of adoption, even if by way of
registered document cannot validate the same.

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The Supreme Court in the matter of Jai Singh v. Shakuntala 5 has held that presumption pertaining to registered adoption deed under Section 16 of the Act of 1956 that adoption is as per law, is rebuttable.

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Thus, it is quite vivid that merely because the adoption deed is registered, the Court is not precluded the examination of title thereof as in the instant case, Section 7 of the Act of 1956 was not complied with and the defendant has failed to prove that he was adopted by 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 as provided in Section 11(vi) of the Act of 1956, as such, adoption of the defendant by the plaintiff's husband is not in accordance with the provisions contained in Chapter II particularly proviso to Section 7 of the Act of 1956 and consequently, by virtue of Section 5(1) of the Act of 1956, any adoption made in contravention of Sections 7 and 11 of the Act of 1956 shall be void and by virtue of sub-section (2) of Section 5 of the Act of 1956, such adoption, which is void, shall not create any

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5 AIR 2002 SC 1428

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rights of the defendant in the family of the
plaintiff. Accordingly, the adoption deed (Ex.P-3)
is void document.

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Both the Courts below have held that the

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plaintiff's suit is barred by limitation.

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Now, the question for consideration would be, whether the adoption, which is held to be void by virtue of Section 5(1) of the Act of 1956, is required to be set aside or only declaration that adoption deed is not binding to the plaintiff would be sufficient ?

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25. The Supreme Court in the matter of Mahadeo Prasad Singh and another v. Ram Lochan and others 6

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has clearly held that the sale which was entirely
without jurisdiction was non est in the eye of law
and such a nullity does not from its very nature,
need setting aside. It was observed as under:-

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“34. This is not a case of an irregular or
voidable sale which continues to subsist so
long as it is not set aside, but of a sale
which was entirely without jurisdiction. It
was non est in the eye of law. Such a
nullity does not from its very nature, need
setting aside.”

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Similarly, in the matter of Prem Singh and others v. Birbal and others 7, the Supreme Court has held that when a document is valid, no question arises of its cancellation and when a document is

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6 (1980) 4 SCC 354

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7 (2006) 5 SCC 353

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void ab initio , a decree for setting aside the same would not be necessary as the same is non est in the eye of the law, as it would be a nullity.

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The Supreme Court in the matter of State of Maharashtra v. Pravin Jethalal Kamdar (Dead) by LRS. 8 has held that when in pursuance to an order which is without jurisdiction and nullity, a sale deed is executed, the sale deed is also a nullity and it is not necessary to seek a declaration about the validity of the sale deed and ignoring the said document, a suit for a substantive relief can be filed contending the documents to be a nullity.

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Likewise, the Supreme Court in the matter of Ranganayakamma and another v. K.s. Prakash (Dead) by LRS. and others 9 has held that a void document is not required to be avoided whereas a voidable document must be.

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Thus, it is now well settled legal position that if a particular document or decree is void, the person affected by such document or decree can very well ignore the same and file a suit seeking substantive relief which may be available to him without seeking a declaration that said decree or document is void.

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Thus, the alleged registered adoption deed

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8 (2000) 3 SCC 460

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9 (2008) 15 SCC 673

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executed by the plaintiff's husband in favour of
the defendant is void by virtue of Section 5(2) of
the Act of 1956 as it was executed in violation of
Section 7 of the Act of 1956 and therefore, it does
not create any right in favour of the defendant in
the family of the plaintiff or destroy any rights
of the defendant in the family of her birth. The
void adoption deed was not required to be set-
aside. It can be ignored as nullity that is non-
existed in the eye of law. It was not necessary to
seek a declaration about the invalidity of said
adoption deed and Article 58 of the Limitation Act,
1963 does not put a bar of granting just relief to
the plaintiff.

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Therefore, the finding of the Courts below that the suit is barred by limitation is set aside to the extent in part by holding that the adoption deed dated 25.1.1982 allegedly executed by the plaintiff's husband holding the defendant to be adoptive son is void document and is not binding on the plaintiff and his family, but she is not entitled for other relief of permanent injunction and appointment of the defendant to the post of Kotwar along with right and privileges have not challenged by the plaintiff. The substantial questions of law are answered accordingly.

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It is ordered and decreed that adoption deed

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dated 25.1.1982 executed by Mantardas, husband of
original plaintiff-Pyaribai is declared void and
not binding to her and family.

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The second appeal is partly allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s).

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A decree be drawn-up accordingly.

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 Sd/-

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(Sanjay K. Agrawal)
 Judge

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B/-

Shyam Lal Mahant v. Navratan Das

Case brief

What is this about?

What did the court decide?

Shyam Lal Mahant v. Navratan Das

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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