PETITIONER – SMT. VIJAYALAKSHMAMMA & ANR.
RESPONDENT – B. T. SHANKAR
DATE OF JUDGMENT: 26/03/2001
BENCH:
D.P. Mohapatra & Doraiswamy Raju.
CASE NO – Appeal (civil) 5473 of 1998
Statutes Referred:
The Essential Services Maintenance Act, 1968
The Hindu Succession Act, 1956
Case Referred:
Ranjit Lal V. Bijoy Krishna, ILR 39 Cal 582 (L)
Chukkamma V. Punnamma
Muthuswami Naicken V. Pulavaratal, ILR 45 Mad 266: (AIR 1922 Mad 106 (2)(N)
Byra Goudu V. Muniammal, 1939-2 Mal LJ 805: (AIR 1940 Mad 5) (O)
Facts:
The case of the respondent-plaintiff is that he has been adopted on 22.6.1970 as per the customs prevalent in the community by Sharadamma, wife of one A.T. Nanjappa Rao, who died in the year 1968 leaving behind him the suit schedule properties and also two widows, Smt. Sharadamma, the first wife, and Smt. Neelamma, the second wife.
The son of Nanjappa Rao’s elder brother came to be adopted by both the widows and the factum of adoption was also evidenced by an Adoption Deed written on the same day and, therefore, he became the absolute owner of the suit schedule properties.
The junior widow in collusion with another brother of Nanjappa Rao by name B.S. Krishnaoji Rao and his wife started giving trouble to the plaintiff by projecting a claim of adoption of their daughter by name Vijayalakshmamma in the year 1970 when she was nine years old but reduced into writing and affirmed under a registered deed dated 26.3.1984, and further said to be fortified by a Will dated 28.3.1984 jointly claimed to have been executed by late Sharadamma and Neelamma.
After asserting a claim for partition of his share of the properties by issuing a notice preceding the filing of the suit, the respondent filed Original Suit No.83/87 praying for a decree for declaration that he is the only adopted son of late Nanjappa Rao and for partition of his 3/4th share in the suit schedule properties by metes and bounds and for delivery of separate possession of his share
Aggrieved, the appellants pursued the matter in appeal before the High Court and, as noticed earlier, the Division Bench affirmed the findings of the learned Trial Judge on the questionIt was held by the high court that the adoption of the plaintiff by Sharadamma alone without the consent of the second wife did not affect the share of Neelamma in the properties and the plaintiff would be entitled to inherit only the share of late Sharadamma alone.
To that extent, the judgment and decree passed by the Trial Court came to be modified into one for an half share in favour of the plaintiff as against the 3/4th share granted by the Trial Court. Not satisfied with the partial relief granted, the appellants have come before this Court.
Aggrieved from the judgement the appellants (defendants) have filed the above appeal against the judgment and decree dated 29.5.1998 of a Division Bench of the Karnataka High Court in R.F.A. No.14 of 1989
Plaintiff’s contentions:
The plaintiff contends that the plaintiff, the son of Nanjappa Raos elder brother, came to be adopted by both the widows and the factum of adoption was also evidenced by an Adoption Deed written on the same day and, therefore, he became the absolute owner of the suit schedule properties.
Further it is averred that the adoption so made was claimed to have been acted upon by entering the name of the plaintiff in the revenue records as a son of late Nanjappa Rao and that he had been managing all the properties thereafter.
Defendant’s contentions:
The defendants contend that there was no adoption of the plaintiff by Sharadamma as claimed; that the unregistered deed of adoption was a fabricated one and no rights can be claimed on the basis of such a document.
The further stand was that the adoption of the first defendant as evidenced by the registered document dated 26.3.1984 and the Will dated 28.3.1984 fortified the claim of adoption projected by the defendants and at no point of time the plaintiff was the owner of the properties in question.
As an alternate plea, it was projected that in any event the second defendant-junior widow of late Nanjappa Rao, having not either accorded her consent or participated in the so-called adoption of the plaintiff by Sharadamma, the senior widow, the adoption of the plaintiff, if at all, could be for Sharadamma only and not for or the estate of her husband, late A.T. Nanjappa Rao that no adoption could have been properly or legally made of the plaintiff without the consent of both the widows of late Nanjappa Rao.
Judgement:
Learned counsel for the appellant relied upon a long catena of cases wherein the preferential right of the senior widow to take a boy in adoption was recognised. See Ranjit Lal V. Bijoy Krishna, ILR 39 Cal 582 (L), Chukkamma V. Punnamma, 28 Mad LJ 72: (AIR 1915 Mad 775) (M), Muthuswami Naicken V. Pulavaratal, ILR 45 Mad 266: (AIR 1922 Mad 106 (2)(N), Byra Goudu V. Muniammal, 1939-2 Mal LJ 805: (AIR 1940 Mad 5)(O). These cases lay down a principle applicable to a different situation altogether.
“The extent to which and the areas and aspects or facets of old Hindu Law which required modernization, modification and alteration are matters of legislative policy and merely because a particular change has been brought into effect in respect of one facet of law in force and a provision has been made specifically only to that limited extent, the Courts neither by means of an interpretative process nor under the guise of ensuring parity in what it may seem to Court would be desirable to achieve uniformity (an area once again exclusively pertaining to policy of legislation) add to or alter the language, structure and content of a provision by reading into it what was not specifically intended or what perhaps was deliberately and consciously avoided by the Parliament itself.Section 7 bears the caption `Capacity of a male Hindu to take in adoption in the same manner the immediately following Section 8 bears the heading `Capacity of a female Hindu to take in adoption.
When the 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 positive as well as deliberate omission to provide for a female Hindu seeking or obtaining any such consent from a co or junior widow is a definite pointer to indicate that the legislative intent and determination was not to impose any such clog on the power specifically conferred upon the female Hindu – may be for the obvious reason that under the scheme of the Act the Hindu female has been enabled and empowered to adopt not only to herself but also to her husband, and also in tune with the changed and modern concept of equality of women and their capabilities to decide independently statutorily recognised, and the very reason for insisting upon such an authority or consent from the Husband or the sapindas under the old Hindu Law having lost its basis and thereby ceased to be of any relevance or valid purpose whatsoever.
In such circumstances, acceding to the submission to read into Section 8 the stipulation in the proviso to Section 7 with the Explanation thereto would amount to legislation by Courts on the lines as to what in its view the law should be, which is wholly impermissible for Courts, dehors any justification or necessity for such a provision. In our view, there is no necessity even for such a provision in the context of the changed circumstances brought about by the various alterations and amendments to the Hindu Code regulating hitherto the personal law of the Hindus.
We are also of the view that either having regard to state of law prevailing on the eve of coming into force of the Act or the nature and extent of the changes and alterations effected in the then existing personal law envisaged by the Parliament could there be any justification whatsoever for Courts to re-write Section 8 of the Act by doing violence to the language by adding something which has been consciously and deliberately omitted by the Parliament itself.
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 adoption 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.”
Held:
For all the reasons stated above, the court finds no error of law or infirmity of any kind in the ultimate decision of the High Court to call for any interference at our hands. The appeal fails and is dismissed. No costs.
Prepared by – Devyansh Narula
