M. Vanaja vs M. Sarla Devi (Dead)

L. Nageswara Rao, J

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.

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 Respondentâ€" M. Sarla Devi (died)-Respondent herein.

Appellant pleaded in the suit that she was brought up as the daughter of the Respondentâ€" 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.

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 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.

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.

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’), 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.

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 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. (1970) 1 SCC 677 to argue that the subsequent events can be taken into account for the purpose of

proving adoption.

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 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.

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 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.

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.

Section 6 of the Act of 1956, prescribes the pre-requisites for a valid adoption, which are :-

“6 Requisites of a valid adoption â€" No adoption shall be valid unless â€

(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;

(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 Chapterâ€​

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 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 adoptionâ€​

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 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.

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. (2011) 2 SCC 298 held that the consent of the wife is mandatory for proving adoption.

In view of the aforementioned facts and circumstances, we find no error in the judgment of the High Court. Therefore, the Appeal is dismissed.