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CASE NO.: Appeal (civil) 5473  of  1998

PETITIONER: SMT. VIJAYALAKSHMAMMA & ANR.

       Vs.

RESPONDENT: B. T. SHANKAR

DATE OF JUDGMENT:       26/03/2001

BENCH: D.P. Mohapatra & Doraiswamy Raju.

JUDGMENT:

RAJU,  J. L...I...T.......T.......T.......T.......T.......T.......T..J

   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 partly allowing their appeal but in other  respects affirming  the  judgment and decree dated 7.10.1988  of  the Civil  Judge,  Madhugiri,  in Original Suit No.83  of  1987, decreeing the suit for partition and separate possession, as prayed for.

   The case of the respondent-plaintiff is that he has been adopted  on  22.6.1970 as per the customs prevalent  in  the@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ community by Sharadamma, wife of one A.T.  Nanjappa Rao, who@@ JJJJJJJJJJJJ 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.  It was urged for the  plaintiff  that since late Nanjappa Rao had  no  issues through  his  wives, named above, 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. 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.  Sharadamma, the senior  widow, died  on 25.5.1984 after prolonged illness.  Since  disputes arose  between the plaintiff and Sharadamma on one hand  and the  junior  widow, Neelamma, on the other hand, 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

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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 and  for future mesne profits from the date of suit till the date  of  delivery of separate possession to  be  determined under  Order  20  Rule 12 of the C.P.C.  The  stand  of  the plaintiff  also was that after the death of Sharadamma,  the Appellants-defendants herein with the help of their men were able to dispossess the plaintiff from some of the properties necessitating the suit claim as noticed above.

   The  junior widow of late Nanjappa Rao was impleaded  as the  second  defendant and the proclaimed  adopted  daughter Vijayalakshmamma was impleaded as the first defendant to the suit.   The  defendants  filed a  common  written  statement disputing  the  facts averred as well as claims made by  the plaintiff  by  contending 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 (Exb.  D.2) and the Will  dated  28.3.1984  (Exb.  D.1) 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, and that no  adoption could  have  been properly or legally made of the  plaintiff without the consent of both the widows of late Nanjappa Rao.

   In  support of the claim of the plaintiff, PWs.  1 to  8 were  examined  of  whom  P.W.1 being  himself,  P.W.2,  the Purohit,  who  was  said  to  have  performed  the  adoption ceremony,  P.Ws.   7  & 8 the natural  parents,  P.W.6,  the natural  maternal grand father of the plaintiff and P.Ws.  3 to  5  neighbours  of the plaintiff, who were said  to  have attended the adoption ceremony.  P.Ws.  4 & 5 were also said to   have  attested  the  adoption   deed  Exb.   P.1,   the unregistered  deed of adoption of the plaintiff.  Exbs.  P.1 to  P.5  were also marked as material documentary  evidence. To  prove  the claim of the defendants, D.Ws.  1 to  5  were examined  in  addition to marking Exbs.  D.1 to D.7.   On  a consideration  of  the  oral  and  documentary  evidence  on record,  the learned Trial Judge decreed the suit as  prayed for,  after  adverting to in great detail  the  overwhelming materials and evidence on record, rejecting at the same time the perfunctory evidence placed on record by the defendants.

   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  question  of factum of adoption of the plaintiff  while equally   confirming  the  findings   that  the   defendants miserably  failed  to  prove the case projected by  them  of adoption  of  the first defendant.  The registered  deed  of

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adoption  (Exb.D.2)  and the Will (Exb.  D.1) were  held  to have not been proved in respect of their genuineness and due execution  as  well by examining either the Attestors or  by taking  any  steps for proving the signature of  Sharadamma, the  senior  widow,  on  them.   At  the  same  time   while considering  the alternate plea of the appellants, the  High Court  held  that  since the adoption of the  plaintiff  was shown  to  have  been made only by  Sharadamma,  the  senior widow,  without the actual consent and participation of  the junior  widow, who was alive at that time, the adoption  was held  to be for Sharadamma, the senior widow, alone and  not on  behalf of both the widows of late Nanjappa Rao.  Keeping in view the legal position that on the death of Nanjappa Rao in  the  year  1968  under   the  provisions  of  the  Hindu Succession  Act,  1956, the widows came to inherit the  suit schedule  properties  with  equal  share, it  was  held  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.

   Mr.T.L.   Viswanatha Iyer, learned senior counsel, while inviting  our  attention to the relevant provisions  of  the@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Hindu  Adoptions  and  Maintenance  Act,  1956  (hereinafter@@ JJJJJJJJJJJJJJJJJJJJJ referred  to as ‘the Act) contended that when there are two co-widows,  one  widow alone cannot adopt a son or  daughter without the consent of the other co-widow, for or the estate of  the  late  husband.  The reason, according  the  learned counsel, being that as per Section 12 of the Act the adopted son  or  daughter shall be deemed to be the child of his  or her  adoptive father or mother for all purposes with  effect from  the  date  of  adoption.  Argued  the  learned  senior counsel  further  that  the  proviso to Section  7  and  the Explanation  thereto must necessarily be read into Section 8 providing  for adoption by a female Hindu and in case  where there  are  more than one wife, the right to adopt  in  such cases has to or can be exercised only either jointly by both the  widows  acting together or not at all.  Hence,  it  was urged   that  the  so-called   adoption  of  the  plaintiff- respondent was neither proper nor valid in law to clothe him with  any rights, as the adopted son of and that too in  the properties  left behind by, late Nanjappa Rao.  The judgment of  the  Courts  below was challenged only  on  these  legal submissions  and not based on any challenge to the factum of proof  of  adoption of the plaintiff or on the  question  or proof or the legality and propriety of the adoption of first defendant   projected  by  the   appellants   but   rejected concurrently  by  the  Courts below.   The  learned  counsel appearing  for  the respondent adopted the reasoning of  the Courts  below  to  justify the conclusions  arrived  at  and sought to sustain the decree passed in favour of his client. There  has been no cross appeal on the part of the plaintiff to  challenge the modification in the decree allowed by  the High Court by reducing the share of the plaintiff from 3/4th to one half only.

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   To  have a proper appreciation of the legal  submissions of   the  principles  of  law   pleaded  on  behalf  of  the appellants,   it   becomes  necessary  to  have   a   proper perspective  of the position of law governing the matter  as on  the date of coming into force of the Hindu Adoption  and Maintenance  Act, since the Act in question was not only  to amend  but  also  codify the law relating  to  adoption  and maintenance  comprehensively  dealing with every  phase  and aspect  of the law specifically dealt with and further  more with  a  provision  of the nature in Section 4  of  the  Act giving  an  overriding effect to the provisions of  the  Act over  any  text, rule or interpretation of Hindu Law or  any custom  or  usage  as part of that law or any other  law  in force  with respect to which any provision has been made  in the  Act  or insofar as it is inconsistent with any  or  the provisions of the Act.  The need to delve at length with the various  principles  governing adoption under  the  Shastric Hindu Law based on the ancient texts is considerably averted due  to  the  law laid down by this Court on more  than  one occasion,  after  an  exhaustive  review  of  the  case  law rendered  by the Judicial Committee of the Privy Council and some of the High Courts.

   Every  male Hindu who is of sound mind and has  attained the age of discretion though he be a minor was held entitled to,  subject to the provisions of any law for the time being in  force,  take a son in adoption provided he has  no  son, grandson or great grandson, natural or adopted living at the time  of  such  adoption.  When a Hindu  makes  an  adoption during his life time, his wife would necessarily join him in the  essential religious ceremonies to be performed therefor and,  therefore,  he was not obliged to take the consent  of the  wife  and  the  assent  of  the  wife  has  never  been considered  to be a condition precedent for the exercise  of the  right by the husband.  The nature and character as also the  purport and object of an adoption came to be considered in  great detail while dealing with the capacity or a  right of  a  Hindu  woman  to  adopt,  in  V.T.S.   Chandrasekhara Mudaliar vs Kulandaivelu Mudaliar & Ors.  (AIR 1963 SC 185), K.Subba  Rao,  J.,  as  the learned Judge then  was,  on  an elaborate  consideration  of the relevant case law, held  as follows:

   12.   It  is common place that a widow adopts a boy  to her  husband  and  that nobody except a widow  can  make  an adoption  to  her  husband.  The reason is  that  Hindu  law recognises her not merely as an agent of her husband but, to use  the  felicitous Hindu metaphor, as his surviving  half; see  Brihaspati  XXV, II and Yagnavalkya I, 156.  In  Sarkar Sastris  Hindu Law, 8th Edn.  Pp 161-162 it is stated  that though according to the commentaries the widow adopts in her own  right,  the  modern view is that she acts merely  as  a delegate  or representative of her husband, that is to  say, she  is  only  an  instrument through whom  the  husband  is supposed  to  act.  Mulla in his book Principles  of  Hindu Law stated that she acts as a delegate of her husband.  The Judicial  Committee  in  Balusu   Gurulingaswami  vs  Balusu Ramalakshmamma,  ILR 22 Mad.  398 at p.408 (PC), pointed out that  if  the  consent  of the husbands  kinsmen  has  been obtained,  the  widows power to adopt is co-extensive  with that  of her husband.  It is, therefore, clear that a  Hindu widow  in  making  an adoption exercises a power  which  she alone  can exercise, though her competency is conditioned by other  limitations which we shall consider at a later stage.

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Whether  she was authorised by her husband to take a boy  in adoption or whether she obtained the assent of the sapindas, her  discretion  to make an adoption, or not to make it,  is absolute  and  uncontrolled.   She is not bound to  make  an adoption  and she cannot be compelled to do so.  But if  she chooses  to  take  a boy in adoption there is  an  essential distinction  between the scope of the authority given by her husband  and  that of the assent given by the sapindas.   As the  widow acts only as a delegate or representative of  her husband,  her  discretion in making an adoption is  strictly conditioned  by the terms of the authority conferred on her. But  in  the  absence of any specific authorization  by  her husband,  her power to take a boy in adoption is  coterminus with  that of her husband, subject only to the assent of the sapindas.  To put it differently, the power to adopt is that of  the  widow as the representative of her husband and  the requirement  of assent of the sapindas is only a  protection against  the  misuse of it.  It is not, therefore, right  to equate  the  authority of a husband with the assent  of  the sapindas.   If this distinction is borne in mind, it will be clear  that  in essence the adoption is an act of the  widow and the role of the sapindas is only that of advisers.

   As  to  what is the object of an adoption,  the  learned Judge  proceeded  further  to  observe   that  it  would  be unnecessary  and even be pedantic to consider the old  Hindu Law texts at such a late stage in the evolution of the Hindu law  when  the subject was fully and  adequately  considered from  time  to time by the Judicial Committee of  the  Privy Council  and  came  to  be   categorically  held  that   the substitution  of a son of the deceased, for the failure of a male issue, for spiritual reasons is the essence of adoption and  the  devolution of property is a mere accessory to  it. Reference  has  also been made to the decision in G.   China Ramasubbayya vs M.  Chenchuramayya (AIR 1947 PC 124) wherein the  two-fold  object  of adoption was stated to be  (a)  to secure the performance of the funeral rites of the person to whom  the  adoption  is  made;   and  (b)  to  preserve  the continuance  of his lineage and reiterated the position that the  validity of the adoption has to be judged by  spiritual rather  than temporal considerations and that devolution  of property is only of secondary importance.

   While adverting to the question as to why does the Hindu Law insist upon the assent of the sapinda as a pre-requisite for the validity of an adoption made by a widow, the learned Judge,  on an elaborate consideration of the principles laid down  in the various texts and the catena of case law,  held as follows:

   17.   It  will be seen that the reason for the rule  is not the possible deprivation of the proprietary interests of the  reversioners  but  the state of perpetual  tutelage  of women,  and  the consent of kinsmen was considered to be  an assurance  that it was bona fide performance of a  religious duty  and  a  sufficient guarantee  against  any  capricious action by the widow in taking a boy in adoption.

   In  Guramma  Bhratar Chanbasappa Deshmukh &  Ors.,  etc. Vs.   Mallappa Chanbasappa & Anr., etc.  (AIR 1964 SC  510), the  very  learned  Judge had an occasion to deal  with  the object  of adoption and the limitations, if any, on the said power and held as follows:

   8.   ..  These texts ex facie do not equate a  son

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in  existence with a son in the womb.  If the authors of the said  treatises  intended to equate the one with the  other, they would not have left in the doubt, for such an extension of the doctrine would introduce an element of uncertainty in the  matter  of  adoption  and defeat, in  some  cases,  the religious  object  underlying  adoption.   It  is  now  well settled  that  the  main  object of adoption  is  to  secure spiritual  benefit  to  the adopter,  though  its  secondary object  is  to  secure an heir to perpetuate  the  adopters name.  Such being the significance of adoption, its validity shall  not be made to depend upon the contingencies that may or  may not happen.  It is suggested that an adoption cannot be  made unless there is certainty of not getting a son  and that  if the wife is pregnant, there is a likelihood of  the adopter begetting a son and, therefore, the adoption made is void.   The texts cited do not support the said proposition. Its  acceptance  will lead to anomalies.  Suppose a  husband who  is  seriously  ill  and who had  no  knowledge  of  the pregnancy of his wife, makes an adoption;  in such an event, the  existence of a pregnancy, of which he has no knowledge, invalidates the adoption, whether the pregnancy turns out to be  fruitful or not.  If he has knowledge of the  pregnancy, he  will  not  be in a position to take a boy  in  adoption, though  ultimately the wife may have an abortion, or deliver a  still-born  child or the child born may turn out to be  a girl.   Further,  as  it  is well settled  law  that  a  son includes  a  sons  son  and  a grandson  of  the  son,  the pregnancy  of  a sons widow or a grandsons widow,  on  the parity  of the said reasoning, will invalidate an  adoption. We  cannot introduce such a degree of uncertainty in the law of   adoption  unless  Hindu   law  texts  or  authoritative decisions  compel us to do so.  There are no texts of  Hindu law  imposing  a condition of non- pregnancy of the wife  or sons  widow  or  a grandsons widow for the exercise  of  a persons  power to adopt.  The decisions of the High  Courts on  the  subject discountenance the acceptance of  any  such condition.   But  there  is  a decision of  Sudr  Adalut  in Narayana  Reddi  vs Varadachala Reddi, S.A.  No.223 of  1859 MSD  1859, p.  97 wherein it was observed that it was of the essence of the power to adopt that the party adopting should be hopeless of having issue.  Mr.  Mayne commenting upon the said observation drew a distinction between a husband taking a  boy  in adoption knowing that his wife was  pregnant  and doing so without the said knowledge and stated:

   If  a  wife,  known  to  be pregnant  at  the  time  of adoption, afterwards brought forth a son, it might fairly be held he was then in existence to the extent of precluding an adoption .

   A   Division  Bench  of  the   Madras  High   Court   in Nagabhushanam  vs  Seshammagaru, ILR 3 Mad.  180  criticised the opinion of the pandits as well as the observation of Mr. Mayne,  and  came  to the conclusion that an adoption  by  a Hindu  with  knowledge  of  his  wifes  pregnancy  was  not invalid.   The Bombay High Court in Shamavahoo vs  Dwarkadas Vasanji,  ILR 12 Bom.  202 (note) accepted the said view.  A Division  Bench of the Allahabad High Court in Daulat Ram vs Ram  Lal,  ILR 29 All.  310 followed the Madras  and  Bombay decisions.  No other decision has been brought to our notice either  taking a different view or throwing a doubt thereon. All  textbooks-Mayne,  Mulla,   Sarkar  Sastri-accepted  the correctness of the said view without any comment.

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   The question as to how the adoption could or ought to be made  when  a Hindu male dies leaving behind more  than  one widow  came  to  be considered by this Court in  Eramma  and others  vs  Muddappa  (AIR 1966 SC  1137),  with  particular reference  to the Mysore Hindu Law Womens Rights Act  1933, stipulating that in the absence of an express prohibition in writing by the husband, his widow, or where he has left more widows than one, the seniormost of them shall be presumed to have  his  authority to make an adoption, and this  position was  also  found to be in conformity with law in the  Bombay State.   In  Tehsil  Naidu and another Vs  Kulla  Naidu  and others  (AIR  1970  SC  1673)   this  Court  held  that  the requirement  of  consent  from a sapinda for adoption  by  a widow  was considered to be necessitated only when the widow has not obtained the consent of her husband in his lifetime. While  dealing with the necessity or otherwise to obtain the consent of the female sapinda in addition to male sapinda of the  deceased  husband,  this  Court observed  that  if  the consent  of the husband or sapinda was held to be  necessary for  the  reason  that a woman is  incapable  of  exercising independent  judgment in the matter of deciding whether  she should  adopt a son to her deceased husband, she can  hardly be  a competent adviser to another widow on the same  matter and, therefore, it was held that the absence of consent of a female  sapinda would not invalidate the adoption in a given case.

   Speaking for a Division Bench of the Andhra Pradesh High Court,  in a decision reported in K.  Varadamma Vs.   Kanchi Sankara  Reddi & Ors.  (AIR 1957 A.P.  933), K.  Subba  Rao, CJ.,  as  the learned Judge then was, has  meticulously  and exhaustively analysed the case law on the subject pertaining to  adoption  made by a senior widow without  obtaining  the consent of the junior widow and observed as hereunder :-

   11.   It is therefore clear that the presumed incapacity of  a woman to arrive at a balanced and independent judgment connected with matters of adoption was the foundation of the doctrine  of consent.  It is futile to enquire at this stage whether there was any justification for that assumption.  It was considered that the advice of the nearest sapindas would enable the widow to act without any caprice in the discharge of  her religious duty.  If that be the reason for the rule, it  would  obviously  be incongruous to hold  that  a  widow incompetent  to act independently can, relying upon  another woman  suffering  from  the  same infirmity,  make  a  valid adoption.   It would be more anomalous if it were to be held that  a senior widow with a presumed mental incapacity could sustain  her act by invoking the aid of the junior widow who by  the same party of reasoning would be mentally  deficient to a higher degree.

   12.   But it is said that, as the proprietary  interests of the junior widow would be affected by the adoption, it is just  and equitable that she should be consulted before  the remoter sapindas are consulted.  It is true that at one time greater  emphasis  was  laid on  the  proprietary  interests affected  by reason of the adoption.  But that question  was finally  and  authoritatively decided in Amarendra Nath  Man Singh  v.  Sanatan Singh, ILR 12 Pat 642;  (AIR 1933 PC  155 (E), by the Judicial Committee.

   14.   The  Judicial Committee in ILR (1948)  Mad.   362: (AIR 1947 PC 124) (B), accepted ILR 12 Pat.  642:  (AIR 1933 PC  155)  (E), as laying down the correct position  on  this

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aspect of the case.  It is therefore clear that the doctrine of  consent  is  based upon the presumed incompetency  of  a widow rather than upon the idea of any interference with the proprietary rights of the sapindas.

   15.   But it is contended that the word ‘sapinda has  a comprehensive  meaning so as to take in a widow and there is no justification for excluding her when the decided cases do not  in terms do so.  In the Mitakshara, the term  ‘sapinda is used in the sense of, one of the same body, i.e., a blood relation.   But, according to the Hindu mode of computation, this includes relations within the seventh degree.  The term ‘sagotra  sapinda  was used in respect of relations of  the same  gotra  and binnagotra sapinda for  bandhus.   Lawfully wedded  wives  of the sapindas were also brought under  that category.   See Gopalchandra Sarkar Sastris Hindu Law,  8th edition, p.  69.  There is, therefore, justification for the contention that the word ‘sapinda takes in the widow of the last male holder.  But the principle underlying the doctrine of  consent  cannot sustain any such wide interpretation  in the  present context.  The acceptance of this argument would destroy  the  principle itself.  Indeed all decisions  which form  landmarks  in the development of the doctrine,  either expressly  or  impliedly use the word in the sense  of  male sapindas.   In  12 Moo Ind App 397 (PC)(A), the widow  of  a divided  member  took a boy in adoption with the consent  of her  father-in-law.   Their Lordships, in dealing with  that question, observed at p.  441:

   In  such a case, therefore, their Lordships think  that the  consent of the father-in-law to whom the law points  as the  natural  guardian and venerable protector of the  widow would be sufficient.

   22.   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.   A  Hindu with  two or more wives may take a boy in adoption or  after his  death one of his widows may take a boy in adoption.  In such cases in a competition between two or more wives or two or  more  widows, Courts were called upon to decide  on  the preferential right of the one or other of them.  Invariably, they  accepted the doctrine that the elder of the two  being the  dharmapathni  is  entitled to take a  boy  in  adoption unless  the  husband expressly or by  necessary  implication directed otherwise.  When once the preferential right of the senior  widow  is conceded it follows that the junior  widow cannot  take  a  boy  in adoption unless  the  senior  widow agrees.   The  decisions  in 28 Mad LJ 72:   (AIR  1915  Mad 775)(M) and Rajah Venkatappa Nayanim Bahadur Vs.  Ranga Rao, ILR  39  Mad 772:  (AIR 1916 Mad 919 (2) (P), where  it  was held  that an adoption by the junior widow with the  consent of  sapindas  but  without consulting the senior  widow  was invalid,  can  be supported on the aforesaid principle.   As the  senior widow who had a preferential right in the matter of  adoption was not consulted, the adoption was held to  be invalid.   Those decisions have obviously no bearing on  the doctrine of consent evolved by Hindu Law.

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   23.  Before closing we should refer to the decision of a Division  Bench  of the Madras High Court  in  Narayanaswami Naick  v.  Mangammal, ILR 28 Mad 315 (Q), which is the  only direct decision on the point.  There the senior widow took a boy  in  adoption after having obtained the consent  of  his sapindas  but  without  consulting the  junior  widow.   The learned  Judges,  Davies  and  Benson, JJ.,  held  that  the adoption  was good. At p. 319, the learned Judges observed:

   The  junior  widow  is bound, as a matter of  duty,  to consent  and if as their Lordships of the Privy Council  say (12  Moo Ind App 397 (A)) the consent of kinsmen is required by   reason  of  the  presumed   incapacity  of  women   for independence  rather  than  the necessity of  procuring  the consent  of all those whose interest in the estate would  be defeated  by the adoption it would seem that the omission to consult  the co-widow though no doubt improper, would not be a sufficient reason for holding the adoption to be invalid.

   24.   We entirely agree with the aforesaid observations. While  for  family peace and good relationship ordinarily  a senior  widow  should  do well to consult  the  younger  one before  introducing a boy into the family, there is  nothing in  law  which  compels  her to do so.   We  therefore  hold agreeing  with  the learned Judge that the adoption  in  the present case is valid.

   The  said  decisions not only succinctly  and  correctly stated  the law on the subject but seem to accurately accord@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ with  the basic principles of law laid down in the judgments@@ JJJJJJJJJJJJJJJ of this Court, noticed supra.

   Coming to the position of law, as found codified, in the Hindu  Adoptions and Maintenance Act, 1956, it is found that@@        JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ apart  from the overriding effect given to the provisions of@@ JJJJJJJJJJJJJJJ the  Act, Section 5 mandates that no adoption shall be  made after  the commencement of this Act by or to a HIndu  except in  accordance with the provisions contained in  Chapter-II, and  proclaims the consequences any contravention thereof to render  such  adoption  void, thereby neither  creating  any rights  in the adoptive family nor destroying the rights  in the  family  of  birth.   While  Section  6  lays  down  the requisites  of a valid adoption, the provisions of Section 7 deals  with the capacity of a male Hindu to take in adoption whereas  Section 8 deals with the capacity of a female Hindu to  take  in  adoption.  It is necessary to  set  out  those provisions  to properly consider the claim made on behalf of the appellants.  Section 7 reads as follows :-

   Capacity  of a male Hindu to take in adoption.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:

   Provided  that,  if he has a wife living, he  shall  not adopt  except  with the consent of his wife unless the  wife has completely and finally renounced the world or has ceased to  be a Hindu or has been declared by a court of  competent jurisdiction to be of unsound mind.

   Explanation.  If a person has more than one wife living at  the  time of adoption, the consent of all the  wives  is

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necessary  unless  the  consent  of   any  one  of  them  is unnecessary  for  any  of  the   reasons  specified  in  the preceding proviso.

   Section 8 reads, thus

   Capacity  of  a female Hindu to take in adoption.  Any female Hindu

   (a) who is of sound mind,

   (b) who is not a minor, and

   (c)  who  is not married, or if married, whose  marriage has  been  dissolved  or  whose   husband  is  dead  or  has completely  and finally renounced the world or has ceased to be  a  Hindu  or has been declared by a court  of  competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.

   A  reference to Sections 12 and 14 also become necessary and Section 12 reads as hereunder :-

   12.   Effects  of  adoption.An adopted child  shall  be deemed  to  be  the child of his or her adoptive  father  or mother  for  all purposes with effect from the date  of  the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced  by  those created by the adoption in the  adoptive family :  Provided that

   (a)  the  child cannot marry any person whom he  or  she could  not  have married if he or she had continued  in  the family of his or her birth;

   (b)  any  property  which vested in  the  adopted  child before  the  adoption shall continue to vest in such  person subject  to  the  obligations,  if  any,  attaching  to  the ownership  of  such  property, including the  obligation  to maintain relatives in the family of his or her birth;

   (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

   Section 14 reads, thus

   14.   Determination  of  adoptive   mother  in  certain cases.(1)  Where  a  Hindu who has a wife living  adopts  a child, she shall be deemed to be the adoptive mother.

   (2)  Where an adoption has been made with the consent of more  than one wife, the senior- most in marriage among them shall  be deemed to be the adoptive mother and the others to be step-mothers.

   (3)  Where  a widower or a bachelor adopts a child,  any wife  whom he subsequently marries shall be deemed to be the step-mother of the adopted child.

   (4)  Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child.

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   A  compendious  reading  of  all  the  above  provisions harmoniously  with  due regard to the purpose sought  to  be achieved  will  inevitably  lead   to  certain   inescapable consequences.  They are (i) a female unmarried or if married but  satisfying the requirements of clause (c) of Section 8, conferred  with  a  right  to adopt  subject  to  the  other provisions  of  Chapter-II,  and   (ii)  since,  unlike  the position  in  the old Hindu Law a Hindu female is  not  only adopting  for the husband but rendered eligible and entitled to adopt a son or a daughter in her own right and to herself also  if  unmarried,  it  has   become  necessary  for   the Legislature  to  enact  a  fiction to the  extent  that  the adopted  child shall be deemed to be the child of his or her adoptive  father or mother for all purposes with effect from the  date of adoption, with certain enumerated  consequences also  flowing  from  the same, one of such  being  that  the adopted  child  shall  not divest any person of  any  estate which  vested in him or her before the adoption.  This Court also  in Sawan Ram Vs.  Mst.  Kalawanti & Ors.  (AIR 1967 SC 1761)  after adverting to Section 5 of this Act, has held as follows :-

   7.It  is  significant that, in this  section,  the adoption  to  be made is mentioned as by or to  a  Hindu,. Thus,  adoption is envisaged as being of two kinds.  One  is adoption  by a Hindu, and the other is adoption to a  Hindu. If  the  view  canvassed  on  behalf  of  the  appellant  be accepted,  the  consequence will be that there will be  only adoptions  by Hindus and not to Hindus.  On the face of  it, adoption  to  a Hindu was intended to cover cases  where  an adoption  is by one person, while the child adopted  becomes the  adopted son of another person also.  It is only in such a  case that it can be said that the adoption has been  made to  that  other  person.   The  most  common  instance  will naturally  be  that  of adoption by a female  Hindu  who  is married  and  whose husband is dead, or has  completely  and finally renounced the world, or has been declared by a court of  competent jurisdiction to be of unsound mind.  In such a case,  the  actual  adoption would be by the  female  Hindu, while  the adoption will be not only to herself, but also to her  husband  who  is dead, or has  completely  and  finally renounced  the  world or has been declared to be of  unsound mind.

                                [Emphasis supplied]

   Adverting  to  Section  12  of the Act  and  as  to  the correctness  of  the view taken by the Andhra  Pradesh  High@@                  JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Court  in N.  Hanumantha Rao Vs.  N.  Hanumayya [ILR  (1966)@@ JJJJJJJJJJJJJJJJJJJJJJJJ Andh.  Pra.  140] , it was observed as hereunder:-

   8.   The  second  provision, which was ignored  by  the Andhra  Pradesh  High  Court,  is one contained  in  S.   12 itself.  The section, in its principal clause, not only lays down  that the adopted child shall be deemed to be the child of  his  or her adoptive father or mother for  all  purposes with effect from the date of the adoption, but, in addition, goes  on to define the rights of such an adopted child.   It lays  down that from such date all the ties of the child  in the family of his or her birth shall be deemed to be severed and  replaced  by  those  created by  the  adoption  in  the adoptive  family.   A question naturally arises what is  the adoptive  family of a child who is adopted by a widow, or by

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a  married  woman whose husband has completely  and  finally renounced  the  world or has been declared to be of  unsound mind even though alive.  It is well recognised that, after a female is married, she belongs to the family of her husband. The child adopted by her must also, therefore, belong to the same family.  On adoption by a widow, therefore, the adopted son  is  to  be deemed to be a member of the family  of  the deceased  husband of the widow.  Further still, he loses all his  rights in the family of his birth and those rights  are replaced  by  the  rights  created by the  adoption  in  the adoptive family.  The right, which the child had, to succeed to  property  by  virtue  of being the son  of  his  natural father,  in the family of his birth, is, thus, clearly to be replaced  by  similar  rights in the adoptive  family,  and, consequently,  he would certainly obtain those rights in the capacity of a member of that family as an adopted son of the deceased husband of the widow, or the married female, taking him in adoption.  This provision in S.  12 of the Act, thus, itself  makes  it clear that, on adoption by a Hindu  female who  has  been married, the adopted son will, in effect,  be the  adopted  son  of  her husband also.   This  aspect  was ignored  by the Andhra Pradesh High Court when dealing  with the  effect  of  the language used in other  parts  of  this section.

                                [Emphasis supplied]

   It  was also emphasised by this Court that the  ultimate decision  given  in  N.  Hanumantha Rao Vs.   N.   Hanumayya@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ (supra)  by the Andhra Pradesh High Court is not in any  way@@ JJJJJJJJJJJJJJJ rendered  incorrect  while making it clear at the same  time that  the  restriction placed upon the adopted  child  under clause  (c) of Section 8 cannot lead to the inference that a child  adopted  by  the widow will not be deemed to  be  the adopted son of her deceased husband.

   The  legality of the adoption in this case is challenged on  the  ground of want of consent of the junior widow  (the second  wife/second  appellant).  Though under Section 7  of the  Act,  a restriction has been specifically engrafted  on the  exercise  of power and right of the male Hindu  not  to adopt,  if he has a wife living, except with the consent  of his  wife  unless  the  wife   has  completely  and  finally renounced  the world or has ceased to be a Hindu or has been declared  by  a  court of competent jurisdiction  to  be  of unsound  mind  and  the   Explanation  further  enjoins  the necessity  of  taking the consent of all the wives,  if  the person  has  more  than  one  wife living  at  the  time  of adoption,  unless  the consent of any one of them  has  been rendered unnecessary for any of the reasons specified in the main  proviso itself.  The question that now requires to  be considered  is  as  to  whether the plea on  behalf  of  the appellants   that  the  proviso   and  Explanation   thereto engrafted  in Section 7 can and also should be dovetailed or read  into Section 8, for any justifiable reason or purpose, deserves or merit our acceptance.

   The  nature,  object and purpose of the Act in  question has   already  been  noticed   supra.   The  Parliament  has consciously  and  deliberately  effected certain  vital  and substantial  changes  in the personal law of the  Hindus  on several  branches  including the law relating to  adoptions.

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The  statement of objects and reasons, so far as it pertains to the law on adoption reads as follows:-

   This  part of the Hindu Code deals with the subject  of adoptions and maintenance among Hindus.

   2.   With the passing of the Hindu Succession Act, 1956, which  treats  sons and daughters equally in the  matter  of succession,  it has now become possible to simplify the  law of  adoption  among  Hindus.   The  Bill  provides  for  the adoption  of boys as well as girls.  There is no longer  any justification  for  allowing a husband to prevent  his  wife from  taking  a  child  in adoption after  his  death.   The adoption  made by a Hindu widow will hereafter be in her own right.  No person need be divested of any property which has vested  in him by reason only of the fact that subsequent to such  vesting  an  adoption  has been made.   This  rule  of divesting  has been the cause of many a ruinous  litigation.

                                       [Emphasis supplied]

   This  Court  also  endorsed  the said  position  in  the decision  reported in G.  Appaswami Chettiar & Anr.  Vs.  R. Sarangapani  Chettiar  & Ors.  (AIR 1978 SC 1051) vide  Para 13.  The extent to which and the areas and aspects or facets of  old Hindu Law which required modernisation, 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

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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.

   For  all  the reasons stated above, we find 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.