Case Note & Summary
The dispute arose from a suit for partition and separate possession filed by the first wife and her daughter against the second wife, her daughter, and grandson of the deceased Lachiram. The plaintiffs claimed half share in the suit properties as legal heirs of Lachiram, alleging that certain lands given to the first wife for maintenance had become her absolute property after the Hindu Succession Act, 1956 came into force, and that other lands purchased by Lachiram in the name of the second wife were liable to partition. The defendants contested, claiming that the grandson was adopted by Lachiram under a registered deed of adoption dated 29.4.1970 and that Lachiram had executed a will on the same date bequeathing the suit properties to the grandson, thereby excluding the plaintiffs. The trial court, after appreciation of evidence, found that the defendants failed to prove the adoption and the will, and decreed the suit for partition in favour of the plaintiffs. The first appellate court affirmed the trial court's findings. The High Court, in second appeal, reversed the concurrent findings, holding that the adoption and will were proved, and dismissed the suit. The plaintiffs appealed to the Supreme Court by special leave. The main legal issues were whether the High Court was justified in interfering with concurrent findings of fact under Section 100 of the Code of Civil Procedure, 1908; whether the adoption was valid in absence of consent of the first wife under Section 7 of the Hindu Adoptions and Maintenance Act, 1956; and whether the will was proved in accordance with law under Section 68 of the Indian Evidence Act, 1872 read with Section 63(c) of the Indian Succession Act, 1925 and Section 3 of the Transfer of Property Act, 1882. The Supreme Court held that the adoption was invalid because Section 7 required the consent of the wife, and the first wife had neither consented nor participated in the adoption proceedings. The Court further held that the will was not proved because none of the attesting witnesses deposed that the testator signed the will in their presence, and the High Court's assumption that the testator must have signed in the presence of a witness because the adoption deed was executed on the same day was based on conjectures and against the weight of evidence. Consequently, the Supreme Court found that the High Court erred in reappreciating evidence and setting aside the concurrent findings of fact, and allowed the appeal, setting aside the High Court's judgment and restoring the trial court's decree for partition.
Headnote
A) Hindu Law - Adoption - Validity of adoption - Hindu Adoptions and Maintenance Act, 1956, Section 7 - Consent of wife mandatory for adoption by male Hindu having wife living - Plaintiff No.1, first wife, did not consent to adoption of defendant No.3; her evidence showed she neither signed adoption deed nor participated in adoption proceedings - Held that adoption was invalid for want of consent, and trial court's finding of invalid adoption was correct (Paras 9-10). B) Evidence Law - Proof of Will - Attestation and execution - Indian Evidence Act, 1872, Section 68; Indian Succession Act, 1925, Section 63(c); Transfer of Property Act, 1882, Section 3 - A will required by law to be attested shall not be used as evidence until one attesting witness is called to prove execution and attestation; no valid execution without proof of due attestation - None of the attesting witnesses deposed that testator signed will in their presence; trial court correctly held will not proved; High Court erred in assuming execution from evidence of adoption deed executed on same day - Held that will was not proved in accordance with law (Paras 10-11). C) Civil Procedure - Second Appeal - Interference with findings of fact - Code of Civil Procedure, 1908, Section 100 - High Court in second appeal cannot reappreciate evidence or substitute its own view for that of lower courts unless findings are perverse - High Court reversed concurrent findings based on conjectures and surmises, not on evidence; its finding that will was executed based on assumption that testator signed in presence of witness because adoption deed executed same day was erroneous - Held that High Court exceeded jurisdiction and its judgment liable to be set aside (Paras 8-11).
Issue of Consideration
Whether the High Court was justified in interfering with concurrent findings of fact under Section 100 CPC; whether the adoption of defendant No.3 was valid in absence of consent of plaintiff No.1 (first wife) under Section 7 of Hindu Adoptions and Maintenance Act, 1956; whether the will executed by Lachiram in favour of defendant No.3 was proved in accordance with law under Section 68 of Indian Evidence Act, 1872, Section 63(c) of Indian Succession Act, 1925, and Section 3 of Transfer of Property Act, 1882
Final Decision
Appeal allowed. Judgment and decree of the High Court dated 5.2.1992 in Second Appeal No. 682/1981 set aside. Trial court's decree for partition restored. Adoption and will held not proved; plaintiffs entitled to half share in suit properties.
Law Points
- Adoption under Section 7 of Hindu Adoptions and Maintenance Act
- 1956 requires consent of wife
- without consent adoption invalid
- proof of will under Section 68 of Indian Evidence Act
- 1872 requires at least one attesting witness to prove execution and attestation
- Section 63(c) of Indian Succession Act
- 1925 and Section 3 of Transfer of Property Act
- 1882 define attestation
- High Court in second appeal under Section 100 of Code of Civil Procedure
- 1908 cannot reappreciate evidence or set aside concurrent findings of fact unless perverse
- findings based on conjectures and surmises are invalid
