KASHIBAI W/O LACHIRAM AND ANR. versus PARWATIBAI W/O LACHIRAM AND ANR.

Citation: [1995] SUPP. 4 S.C.R. 63 · Decided: 25-09-1995 · Supreme Court of India · Bench: N.P. SINGH, FAIZAN UDDIN · Disposal: Appeal(s) allowed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

... 
KASHIBAI W/O LACHIRAM AND ANR. 
v. 
PARWATIBAI W/0 LACHIRAM AND ANR. 
SEPTEMBER 25, 1995 
IN.P. SINGH AND FAIZAN UDDIN, JJ.] 
• 
Hindu Adoption and Mailllenance Ac4 1956: 
Section 7--Adoption of second wife's son--Absence of consellt of livi11g 
wife--Validity of-Held: adoptio11 i11va/id. 
Evide11ce Act, 1872: 
Section 68--Will-Proof of due execution of-Attestatio11--Witlwut at-
testation execution of deed of Will 11ot proved. 
Code of Civil Procedure, 1908: 
Sectio11 100(4)-'-Second Appeal-Power of High Cowt--Cannot reap-
preciate the evidence and inteifere with the concunmt finding of facts of 
courts below without even fommlating any questio11 of law has 110 j111isdictio11 
A 
B 
c 
D 
to e11te1tain second appeal on ground of en-011eous finding of fact, based on E 
appreciation of relevant evidence. 
Words and Phrases : ''Attestation''-Meaning of-In the co11teJ.t of 
Section 3 of the Transfer of Prope1ty Act, 1882. 
The appellants tiled a suit in the Trial Court claiming half share in 
the property lert behind by L, being his legal heirs. The respondents 
contested the suit on the ground that L had adopted his grandson by a 
registered Deed of Adoption and also executed the Deed of Will bequeath-
ing his property to him and that the appellants had no right over his 
property. 
The Trial Court found that the respondents failed to prove the 
execution of the Deed of adoption and the Deed of Will and allowei) the 
suit which was allirmed by the first Appellate Court. The respondenl' 
filed an appeal before the High Court which was allowed. 
F 
G 
Aggrieved by the High Court's Judgment the appellants had H 
63 
64 
SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R. 
A 
preferred the present appeal. 
8 
c 
On behalf of the appellants it was contended that the question of 
proof of the Deed of Adoption and the Deed of Will was a pure finding of 
fact; that the High Court" was not justified in interfering with the finding 
of fact arrived at by the two Courts below in exercise of the power under 
Section 100 of the Code of Civil Procedure, 1908; and that the High Court 
was not justified in substituting its own views for those of the lower courts. 
Allowing the appeal, this Court, 
HELD: 1.1. Section 7 of the Hindu Adoptions and Maintenance Act, 
1956 provides that 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. It provides 
that if he has a wife living, he shall not adopt except with the consent of 
his wife. In the present case as seen from the evidence discussed by the 
Trial Court it is abundantly clear that the appellant, the first wife of 
D deceased L, had declined to give consent for the said adoption and, 
therefore, the plea of alleged adoption advanced by the respondents was 
.,, 
clearly hit by the provisions of Section 7 and the adoption can not be said 
< 
E 
F 
to be a valid adoption. (69-A-R] 
1.2. Section 68 of the Evidence Act, 1872 relates to the proof of 
execution of document required by law to be attested. A Deed of Will is oue 
of such documents which necessarily require by law to be attested. Section 
68 of the Evidence Act contemplates that if a document is required by law 
to be attested, it shall not be used as evidence until one attesting witness 
atleast has been called for the purpose of proving its execution, if there be 
an attesting witness alive, and subject to the process of the Court and 
capable of giving evidence. A reading of Section 68 will show that "attesta-
tion11 and "execution11 are two different acts one following the other. There 
can be no valid execution of a document which under the law is required 
to be attested without the proof of its due attestation and if due attestation 
G is also not proved, the fact of execution is of no avail. (69-D-E] 
2.1. Having regard to the definition of the expression "attested" as 
contained in Section 3 of the Transfer of Property Act, 1882 an attesting 
witness is a person who in the presence of an execution of a document puts 
his signature or mark after he has either seen the execution himself or 
H 
someone on direction of the execution has put his signature or affixed his 
' 
KASHIBAI v. PARWATIBAI 
65 
mark on the document so required to be attested or after he has· received A 
from the executant a personal ackncnvledgment of his signature or mark 
or the signature or mark of such other person. (70-D] 
2.2. In the present case the Trial Court after a close scrutiny and
Excerpt shown. Read the full judgment & AI analysis in Lexace.