SMT. VIJAYALAKASHMAMMA AND ANR. versus B.T. SHANKAR

Citation: [2001] 2 S.C.R. 769 · Decided: 26-03-2001 · Supreme Court of India · Bench: D.P. MOHAPATRA · Disposal: Disposed off

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

SMT. VIJAYALAKASHMAMMA AND ANR. 
v. 
B.T. SHANKAR 
MARCH 26, 2001 
[D.P. MOHAPATRA AND OORAISWAMY RAJU, JJ.] 
Hindu Law: 
Hindu Adoptions and Maintenance Act, 1956-Sections 7, 8, 12 and 
14-Adoption-By widow-Consent of co-widow-Necessity of-Plea that stipu-
lation provided under Section 7 to be read into Section 8---Held, consent not 
required-Since omission to provide necessity to seek consent of co-widow 
indicates that the legislative intent was not to impose any such clog on the 
power specifically conferred upon the female Hindu-Reading of the stipula-
tions provided under Section 7, into Section 8 would amount to legislation by 
Courts, which is impermissible. 
Respondent-plaintiff filed a suit against the appellants, for declara· 
tion that he was the only son of 'A' and for his 3/4th share in the suit 
property. He claimed that the senior widow of the two widows of' A' adopted 
the respondent after death of 'A', as he had no issues, as per the Adoption 
Deed. The junior widow, due to disputes between the widows and the re· 
spondent, in order to trouble the respondent, started projecting claim of 
adoption of petitioner No. 1. Petitioners-defendants, in their written state-
ment, contended that the respondent-plaintiff was never adopted and the 
unregistered Adoption Deed was a £abricated one. Alternatively they con· 
tended that since the adoption of the respondent was only by the senior 
widow, without consent and participation of the junior widow, the adoption 
could not be for the estate of 'A' and alternatively at the most the adoption 
by the senior widow would be only in respect of ber share in tbe property; 
and that adoption of the respondent could not be properly or legally made 
without the consent of both the widows. Trial Court decreed the suit. 
In appeal, High Court amrmed the ftndlng of the Trial Court on the 
ll 
question of factum of adoption, while considering the alternative plea held 
that the adoption was for the estate of that widow who had adopted the 
A 
B 
c 
D 
E 
F 
G 
respondent, and so he was entitled to Inherit only her share. 
H 
769 
A 
B 
c 
D 
E 
770 
SUPREME COURT REPORTS 
[2001] 2 S.C.R. 
Ip appeal to this Court, the appellants contended that the adoption 
of the respondent was neither proper nor valid in law, in view of Hindu 
Adoptions and Maintenance Act, according to which when there are two 
co-widows, one widow alone cannot adopt a son or daughter without the 
consent of the other co-widow; and that the proviso and explanation to 
Section 7 should he read into Section 8 of the Act. 
Dismissing the appeal, the Court 
HELD : 1. To subject the exercise of power by the senior widow to 
adopt, conditioned upon the consent of the junior widow where a Hindu 
male died leaving behind two widows with no progeny of his own, would 
render the exercise of power more cumbersome and paradoxical, leaving 
at times, such exercise of power to adopt only next to impossibility. Having 
regard to the provisions contained in proviso (c) to Section 12 of the Act 
which ensures that the adopted child shall not divest any person of any 
estate which vested in him or her before the adoption and consequent 
protection of the rights vested with the junior widow in the property left 
behind by the deceased husband and the real and ultimate object of adop-
tion by the widow, no injustice could be said to be caused to the junior 
widow on account of the legislature not making it obligatory for the senior 
widow to obtain the consent of the junior widow to adopt a child which · 
would be deemed to be not only for her but also to the deceased husband as 
envisaged in Section 12 of the Act. [789-C-E] 
VTS. Chandrasekhara Mudaliar v. Kulandaivelu Mudaliar & Ors., AIR 
(1963) SC 185; G. China Ramasubbayya v. M. Chenchuramayya, Am (1947) 
PC 124; Guramma Bhratar Chanbasappa Deshmukh & Ors., Etc. v. Mallappa 
F 
Chanbasappa & Anr. Etc., Am (1964) SC 510; Eramma and Others v. 
G 
H 
Muddappa, Am (1966) SC 1137; Tehsil Naidu and Anr. v. Kulla Naidu and 
Ors., Am (1970) SC 1673 and K. Varadamma v. Kanchi Sankara Reddi & 
Ors., Am (1957) A.P. 933, referred to. 
2. When Parliament resolved to provide for and insist upon the · 
obtaining of the consent of the wife or if there are more than one living 
wives the consent of all of them, unless they or any one of them suffered 
any of the enumerated infirmities rendering such consent unnecessary, the 
conscious and posi~ve as well as deliberate omission to provi

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