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M.Vanaja vs M.Sarla Devi (Dead) on 6 March, 2020

Non-Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8814 OF 2010

M. Vanaja …. Appellant(s)

Versus

M. Sarla Devi (Dead) …. Respondent(s)

JUDGMENT

L. NAGESWARA RAO, J.

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

[1]
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 pre-

requisites 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 grand-

mother 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

[11]
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

[12]
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

[13]

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