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PETITIONER: DWARKA NATH

       Vs.

RESPONDENT: SHRI LAL CHAND AND OTHERS

DATE OF JUDGMENT: 10/02/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. SIKRI, S.M.

CITATION:  1965 AIR 1549            1965 SCR  (3)  27

ACT:     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.

HEADNOTE:     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

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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]

JUDGMENT:     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. appellant.     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. and 8.     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

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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  Revenue. 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 minor.     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 arguments now. 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

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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; (c)  ........................                  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 reads:               "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.                 (2)  ......................     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 question- 31 ed 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

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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

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             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 statements provable. Mr. Agarwala next relies on s. 32(7) of the Indian  Evidence Act  to introduce the earlier statements.  That  sub-section reads:                     "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 them  selves 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, clause (a).               *       *         *           * 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, be  cause 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 above fact.     Mr. Agarwala‘ contends lastly  that as  Dwarka  Nath was adopted on November, 28, 1929 and the present suit was filed

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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.                                   Appeal dismissed. 34