GHISALAL versus DHAPUBAI (DEAD) BY LRS. AND ORS.

Citation: [2011] 1 S.C.R. 651 · Decided: 12-01-2011 · Supreme Court of India · Bench: G.S. SINGHVI · Disposal: Disposed off
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Judgment (excerpt)

y 
[201) 1 S.C.R. 651 
GHISALAL 
v. 
DHAPUBAI (DEAD) BY LRS. AND ORS. 
(Civil Appeal Nos.6373-6374 of 2002) 
JANUARY 12, 2011 
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.] 
Hindu Adoption and Maintenance Act, 1956: 
A 
B 
s. 7, proviso - Consent of wife is a condition precedent c . 
for adoption by a male Hindu - Consent should either be in 
writing or reflected by an affirmative/positive act voluntarily 
and willingly done by her- Presence of wife as a spectator in 
the assembly of people who gather at the place where the 
ceremonies of adoption are performed cannot be treated as . 0 
her consent- Wife's silence or lack of protest on her part also 
would not give rise to an inference that she had consented to 
the adoption - In .the instant case, Ghisalal claimed right in 
properties of Gopalji on the ground that Gopalji had adopted 
him with the consent of his wife Dhapubai - All the courts 
E 
below held that the consent of Dhapubai could be presumed 
because she was present in the ceremonies of adoption -
High Court went a step further and observed that failure of 
Dhaplibai to challenge the adoption deed was a strong 
circumstance to show that she had consented to the adoption 
of Ghisalal by her husband - Courts below completely ignored 
F 
that presence of Dhapubai in the ceremonies of adoption was · 
only as a mute spectator and not as an active participant -
Neither Ghisalal nor any of the witnesses examined by him 
stated that before taking Ghisalal in adoption, Gopalji had 
consulted Dhapubai or taken her in confidence and that the 
G 
- latter had given her consent or agreed to the adoption or that 
she had taken prominent part in the adoption ceremonies -
All of them made a parrot like statement that Dhapubai was 
651 
H 
" 
652 
SUPREME COURT REPORTS 
[2011] 1 S.C.R. 
A sitting with other women below the chabutra - No evidence 
was produced by Ghisalal to prove that Dhapubai was a 
signatory to the adoption deed or was present at the time of 
its execution and/or registration - Therefore, the contents of 
adoption deed could not be made basis for assuming that 
B Dhapubai was a party to the adoption -
Testimony of 
Kishanlal, the natural father of Ghisalal was most crucial and 
yet he was not examined - The concurrent finding recorded 
by the courts below that Gopalji had adopted Ghisalal with the 
~ 
consent of Dhapubai was perverse inasmuch as the same was 
c based on unfounded assumptions and pure conjectures -
Dhapubai had succeeded in proving that the adoption of 
Ghisalal by Gopalji was not valid - . Therefore, the suit filed 
by Ghisalal for partition of properties belonging to Gopalji was 
not maintainable. · 
D 
s. 7, proviso - Interpretation of the term 'consent' used in 
the proviso - Held: The term 'consent used in the proviso to 
'-f' 
s. 7 and the explanation appended thereto has not been 
defined in the Act - Therefore, while interpreting the provision, 
the court has to keep in view the legal position obtaining before 
E enactment of the 1956 Act, the object of the new legislation 
and apply the rule of purposive interpretation and if that is 
done, it would be reasonable to say that the consent of wife 
envisaged in the proviso to s. 7 should either be in writing or 
reflected by an affirmative/positive act voluntarily and willingly 
F done by her -
Interpretation of statutes -
Purposive 
interpretation. 
Hindu law: Old. and present law relating to adoption -
Comparison between - Hindu Adoption and Maintenance Act, 
G 1956. 
-j... 
The case of the appellant was that one Gopalji had 
taken him in adoption at the age of 5~6 years in 1959. He 
gave description of the adoption ceremonies by stating 
H 
GHISALAL v. DHAPUBAI (DEAD) BY LRS. AND ORS. 653 
that his natural father, Kishanlal had made him to sit in 
A 
,.,,. 
the lap of Gopalji and the latter accepted him as the 
adopted son. The deed of adoption was executed and 
got registered on 25.6.1964. Dhapubai, the wife of Gopalji 
had consented to the adoption. 
The appellant filed a suit for partition with a prayer 
8 
that he should be given one half share in the properties 
+ 
belonging to Gopalji. In the said suit, he challenged gift 
deed dated 22.10.1966 executed by Gopalji in favour of 
·· .. 
Dhapubai and sale deed dated 19.1.1973 executed by the c 
latter in favour of one Sunderbai in respect of one parcel 
of land. Later on, an amendment was also made in the 
plaint that gift deed dated 29.11.1944 was invalid, 
inoperative and ine
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