Dwarka Nath Vs. Shri Lal Chand &
Ors  INSC 28 (10 February 1965)
10/02/1965 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C.
CITATION: 1965 AIR 1549 1965 SCR (3) 27
U.P. Court of Wards Act, 1912 (Act 4 of 1912),
ss. 37, 53--Scope of--Consent of Court of Wards for Adoption--If adoption can
be challenged in Civil Court.
A widow whose estate was under the charge of
the Court of Wards. made an adoption and applied under s. 37 of the U.P. Court
of Wards Act, 1912, for permission to make the adoption. The Collector refused
the permission as the grant of authority to adopt, by the husband who died in
1901, was not proved. The 1st respondent's father, the nearest reversioner,
filed a suit challenging the adoption as contrary to s. 37 of the Act and the
suit was decreed.
The widow. There after, applied to the Court
of Wards for permission to adopt the appellant. Fresh enquiries about grant of
authority by the husband to adopt, were made, and permission was granted and
the appellant was adopted in 1929. Immediately after the adoption of the
appellant the Court of Wards, released the estate and assumed charge of it
again on behalf of the appellant who was a minor. On the death of the widow in
1943, the 1st respondent's father filed a suit, challenging the validity of the
appellant's adoption on the ground that the widow had no authority from her
husband to adopt. The Trial Court decreed the suit and the High Court, on
appeal. affirmed the decree. In appeal to this Court it was contended that the
conclusion of the Court of Wards to grant permission and the reasons for the
decision could not be questioned in a civil suit.
HELD: The Civil Court was competent to
reconsider the question, of the authority given by the husband, even after the
consent of the Court of Wards.
Section 37 of the U.P. Court of Wards Act
affects the competence of the wards to make an adoption, and as the consent of
the Court of Wards is a pre-requisite, any adoption made without such consent
must be ineffective. The section, however, does not make the sanction of the
Court of Wards cure illegalities or breaches of personal law. Nor does the
sanction make up for incompetence arising under the personal law. Those matters
would have to be determ/ned according to the personal law in a Civil Court of
competent jurisdiction. [30E-G] Section 53 also is not a bar to such a suit.
The section only provides that if the Court of Wards gave or refused its
consent to a proposed adoption a suit would not lie to cancel the consent or to
compel it. It does not go to the length of saying that after the consent of the
Court of Wards, the adoption itself cannot be questioned at all.
[30H] In deciding the question of authority,
the statements made by witnesses at the second enquiry by the Court of Wards
for giving its consent to adopt, could not be considered by the Civil Court
they were not relevant or admissible either under s. 32(7) or s. ,of the Indian
Evidence Act. [32 D-F; 33 A-C] 28 As the 1st respondent's father never accepted
the appellant's adoption it could not be said that the suit, filed more than 15
years after the adoption during which time the appellant had been considered by
everyone to be legally and validly adopted, ought to be dismissed. [33E-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 195 of 1963.
Appeal from the judgment and decree dated
March 24, 1959 the Allahabad High Court in First Appeal No. 76/47.
C.B. Agarwala and J.P. Goyal, for the.
S.T. Desai, M.V. Goswami and B.C. Misra, for
the respondent No. 1.
M.V. Goswami and B.C. Misra, for respondents
Nos. 2, 7.
R.S. Gupta, S.S. Khanduja and Ganpat Rai, for
respondent No. 9.
The Judgment of the Court was delivered by
Hidayatullah, J. This appeal arises from a suit filed by respondents 1 and 2
for declaration of their rights to the Phulpur Estate, for possession of
properties belonging to the Estate and for mesne profits. The Phulpur Estate is
situated in Allahabad District. One Rai Bahadur Rai Pratap Chand who died on
January 23, 1901, was the Zamindar of this Estate. After his death, his widow
Rani Gomti Bibi succeeded to the Estate. Rani Gomti Bibi was considerably
influenced by her brother Gaya Prasad and priests belonging to some temples. In
the years following the death of her husband, Rani Gomti Bibi made many
endowments involving vast properties and in July 1920, the Court of Wards
assumed charge of the Estate which the Rani was mismanaging.
On February 21, 1923, the Rani adopted one
Bindeshwari Prasad and then applied to the Court of Wards under s. 37 of the
U.P. Court of Wards Act for permission to make the adoption. The Collector (Mr.
Knox) made an enquiry and on April 3, 1923. made a report Ex. 79 stating that
the evidence tendered before him was so conflicting and unreliable that he had
come to the conclusion that the authority of Rai Pratap Chand to adoption by
his widow was not proved. He, therefore, recommended that Rani Gomti Bibi be
declined permission to make the adoption and the Board of Revenue accordingly
refused permission. Rani Gomti Bibi, however, executed a deed of adoption on
November 6, 1924 in favour of Bindeshwari Prasad. A suit was filed by
Parmeshwar Dayal (who was the first plaintiff in the persent suit) in 1925
against Rani Gomti Bibi, Bindeshwari Prasad and the Court of Wards challenging
the adoption made by the Rani. On August 21, .1926, the suit was decreed, and
it was held that the adoption was contrary to s. 37 of the U.P. Court of Wards
Act, 1912 and was thus 29 invalid inasmuch as permission to take the adoption
was not obtained from the Court of Wards.
Rani Gomti Bibi then applied to the Court of
Wards for permission to adopt Bindeshwari Prasad's brother's son Dwarka Nath
who is the present appellant. Fresh enquiries about the authority of the
husband were made by the then Collector Mr. Thompson. He examined witnesses
from a list filed by Gaya Prasad in the earlier suit of 1925. After considering
the evidence, the Collector recommended grant of permission under s. 37 of the
U.P. Court of Wards Act and permission was accordingly granted by the Board of
On November 28, i929, the Rani adopted Dwarka
Nath at Phulpur. Immediately after this adoption the Court of Wards released
the Estate and assumed charge of it again on behalf of Dwarka Nath who was a
On january 5, 1943, Rani Gomti Bibi died and
the present suit was filed by Parmeshwar Dayal and one Amarnath Agarwal to whom
Parmeshwar Dayal had assigned 6/16th share in the Estate. This suit was decreed
by the Civil Judge of Allahabad who held inter alia that Parmeshwar Dayal was
the nearest reversioner of Rai Partap Chand and was entitled to succeed him,
and further that the adoption was invalid as there was no proof of authority
given by Rai Pratap Chand to Rani Gomti Bibi to make the adoption. The suit for
declaration and possession was decreed with mesne profits amounting to Rs.
88,000 against Dwarka Nath and the Collector and the Court of Wards who was
also made a party to the suit. Three appeals were filed against the judgment
and by a common judgment dated March 24, 1959, the High Court affirmed the
decree except in respect of mesne profits. The High Court certified the case as
fit for appeal to his Court and the present appeal results.
At the hearing, Mr. C.B. Agarwala stated on
behalf of the appellant that he did not challenge that Parmeshwar Dayal was the
nearest reversioner of Rai Pratap Chand. We are also not now concerned with the
endowments. Mr. Agarwala contended that the findings about authority by Rai Pratap
Chand to the adoption were erroneous an required to be reconsidered. In seeking
reconsideration of this finding.
Mr. Agarwala relied both on facts and law. In
so far as his claim is to have the evidence reconsidered, it may be stated at
once that it is not the practice of this Court to examine the evidence at large
specially when the High Court and the Court below have drawn identical
conclusion from it. In this case, the evidence about the authority, such as it
was, was considered both by the Trial Judge and the High Court and they could
not persuade themselves to accept it. Following the settled practice of this
Court we declined to look into the evidence for the third time, but we
permitted Mr. Agarwala to raise arguments of law and we shall deal with those
30 Mr. Agarwala relies upon ss 37 and 53 of
the U.P. Court of Wards Act, 1912 and contends that inasmuch as the Court of
Wards made an enquiry into the truth of the allegations that Rai Pratap Chand
had given express authority to Rani Gomti Bibi to make an adoption after his
death and found in favour of authority, the conclusion of the Court of Wards to
grant permission and the reasons for the decision cannot be questioned by a
civil suit. This argument, in our judgment, cannot be accepted. Section 37, of
the U.P. Court of Wards Act, in so far as it is material. reads as follows:-"37.
Disabilities of wards-A ward shall not be competent-(a)...........................
(b) to adopt without the consent in writing
of the Court of Wards;
Provided, first, that the Court of Wards
shall not withhold its consent under clause (b) ............if the adoption
............. is not contrary to the personal or special law applicable to the
ward ............... ". .lm0 The section obviously places a hurdle in the
way of adoptions by the wards which must be removed before the adoption can be
valid. The section affects the competence of the Wards to make the adoption and
as the consent is a pre-requisite, any adoption made without such consent must
be ineffective. The section, however, does not make the sanction of the Court
of Wards to cure illegalities or breaches of the personal law. Nor does the
sanction make up for incompetence arising under the personal law. It is obvious
that if the adoption is void by reason of the personal law of the person
adopting, the consent of the Court of Wards cannot cure it.
Nor would' the consent take the place of the
essential ceremonies or the religious observances where necessary. Those
matters would have to be determined according to the personal law in civil
court of competent jurisdiction.
Mr. Agarwala argues that s. 53 is a bar to
any suit questioning the adoption made after the consent of the Court of Wards
to the adoption has been given. That section cannot be used in this manner. It
"53. (i) The exercise of any discretion
conferred on the State Government or the Court of Wards bythis Act shall not be
questioned in any Civil Court.
The section merely puts the exercise of
discretion by officers acting under the Court of Wards Act beyond question.
Thus if the Court of Wards gave or refused its consent to a proposed adoption a
suit would not He either to cancel the consent or to compel it. This section,
however, does not go to the length that after the consent of the Court of Wards
the adoption itself cannot be questioned at all. There are no words in the
section to this effect nor can such a result be implied. If the Court of Wards
gave its concurrence to a proposed adoption, the bar created by s. 37 of the
Act would be removed. but it would not make the adoption immune from attacks in
a Civil Court on any ground on which adoptions are usually questioned there.
Mr. Agarwala claims that the reasons for the consent of the Court of Wards are
a part of the consent and are within s. 53(1). This cannot be accepted. No
doubt, the Court of Wards reached its own conclusion for purpose of s. 37 that
Raj Pratap Chand had accorded authority to Rani Gomti Bibi to adopt a son. but
if the adoption was questioned in a civil court. the civil court would not be
ousted of its jurisdiction to decide the question. All that the civil court
would be compelled hold would be that the requirements of the Court of Wards
Act ds to the consent of the Court of Wards were fulfilled. In our judgment,
the legal argument that after the consent of the Court of Wards the Civil Court
was incompetent to reconsider the question of the authority given by the
husband cannot be accepted.
In deciding the question of authority, the
High Court rejected the oral evidence led before it and affirmed the
conclusions of the trial Judge. The High Court considered this evidence both
intrinsically and in the light of the attending circumstances and found it
unacceptable. The trial Judge pointed out that as lawyers were present when Rai
Pratap Chand 'is alleged to have given authority to his widow and as it was
also suggested that that fact should be recorded, it was unbelievable, if the
statements were true, that written authority would not have been prepared then
and there. The High Court did not content itself with accepting the opinion of
the trial Judge but discussed the evidence de novo and rejected it. The High
Court pointed out that Rai Pratap Chand was only 30 years old at the time of
his death and his wife was 25 years old and he could not have abandoned the
hope of having an issue. Evidence shows that the writing was put off because it
was not thought that Rai Pratap Chand was dying. The High Court also pointed
out that Rani Gomti Bibi executed between November 24, 1901 and August 19, 1904
4 documents making different endowments. In none of these documents, she
mentioned that she had been asked by her husband to make them. The High Court
pertinently pointed out that the oral evidence showed that the declaration of
the authority to his wife and the oral will to make the endowments, were made
by Rai Pratap Chand at the same time and these facts would have figured as the
reason for the endowments in these documents. Mr. Agarwala contends that even
if the reasons for the endowments might be expected to be expressed. it is not
logical to say that the deeds should have recited the irrelevant fact that
authority was given to Rani Gomti Bibi to make the adoption. This is perhaps
right, but the fact remains that the two directions of Rai Pratap Chand went
hand in hand; and even if the fact of authority was not 32 recited in the
documents, one would expect at least the oral will to make the endowments to be
mentioned. This shows that the whole story about oral directions to Rani Gomti
Bibi was untrue.
Mr. Agarwala then seeks to use the statements
made by Gaya Prasad and the witnesses before Mr. Thompson. In the High Court
this claim was based upon ss. 11, 32 and 157 of the Indian Evidence Act. The
High Court rejected these statements and declined to attach any value to them.
Section 11 was not relied upon before us; but
the other two sections were referred to in an effort to have that evidence read.
Section 157 of the Indian Evidence Act lays down:
"157. Former statements of witness may
be proved to corroborate later testimony as to same fact:
In order to corroborate the testimony of a
w:mess, any former statement made by such witness relating to the same fact at
or about the time when the fact took place, or before any authority legally
competent to investigate the fact, may be proved." Two circumstances,
which are alternative, are conditions precedent to the proof of earlier
statements trader this section. The first is that the statements must have been
made at or about the time when a fact took place. The fact here is the
authority said to have been given by the husband in 1901. The statements were
made on December 18, 1928, 27 years after the event. They cannot be said to
have been made "at or about the time when the fact took place".
Further, as rightly pointed 'out by i;he High Court, the Court of Wards was
making an enquiry for the purpose of according its consent. It was not enquiring
into the fact of the giving of authority as an 'authority legally competent'.
That authority, as we have pointed out already, is the civil court for the
civil court alone can finally decide such a question. It can do so even after
the Court of Wards had reached a conclusion, and contrary to that conclusion.
Section 157 therefore cannot make the
Mr. Agarwala next relies on s. 32(7) of the
Indian Evidence Act to introduce the earlier statements. That sub-section
"32. Statements. written or verbal, of
relevant facts made by a person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance cannot be procured
without an amount of delay or expense which under the circumstances of the case
appears to the Court unreasonable, are themselves relevant facts in the
following cases:* * * * (7) When the statement is contained in any deed, will
or other document which relates to any such transaction as is mentioned in s. 13,
* * * * 33 Clause (7) makes relevant
statements made in deeds, wills and such other documents which relate to
transactions by which a right or custom in question "was created, claimed,
modified, recognised, asserted or denied" (to add the words of cl. (a)of
s. 13). The clause does not allow introduction of parole evidence, see Field on
the Law of Evidence 8th Edn. p. 202. Such parole evidence may be relevant under
cl. (5) of s. 32, but that is not relied upon. We questioned Mr. Agarwala
whether he wished to rely upon clause (5), but he did not wish to put his case
under that clause and we need not therefore consider the application of that
clause. We think Mr. Agarwala is right in taking this course, because cl. (5)
requires that such a statement should have been made before the quest, ion in
dispute was raised. The statements in question were definitely made after the
question in dispute in the suit had already arisen, because one enquiry had
already been made by Mi'. Knox and the statements now relied upon were made in
the second enquiry before Mr. Thompson.
Mr. Agarwala next wishes to use the
statements made by Gaya Prasad on March 14, 1926 "Ex. 72"; but that
clearly is not admissible, because when it was made in the suit, Gaya Prasad
was being examined as a party before issues were framed. In fairness to Mr.
Agarwala it may be mentioned that he did not press the point after noticing the
Mr. Agarwala` contends lastly that as Dwarka
Nath was adopted on November, 28, 1929 and the present suit was filed on May
21, 1945, after more than 15 years, and as during this time. Dwarka Nath had
been considered by everyone to be legally and validly adopted the suit ought to
have been dismissed. It may be pointed out that Parmeshwar Dayal never accepted
the adoption of Dwarka Nath. He had filed an earlier suit and questioned the
competence of Rani Gomti Bibi to make the adoption of Bindeshwari Prasad. In
that suit he had denied that Rai Pratap Chand had given authority to his wife
to make the adoption of a son after his death.
He consistently denied the validity of the
second adoption and in these circumstances, it cannot be said that he was
concluded by any rule of law from questioning the adoption of Dwarka Nath after
Rani Gomti Bibi's death.
On an examination of all the legal pleas
against the judgment of the High Court we are satisfied that none of them
avails the appellant. In so far as the question of fact are concerned, we have
already stated that we do not propose to go into them as it did, not appear to
us that there was any legal reason for reaching a different conclusion.
We accordingly dismiss the appeal but order
that the parties shall bear their own costs throughout.