Sahib Singh v. Arvinder Kaur & Ors

order." (emphasis supplied)

¶28Insofar as the reliance placed by learned senior counsel for the appellant on the Order dated 11 12.2009 passed on the application of respondents No. 1 to 4 under Order VII Rule 11 of the said Code is concerned, it was submitted that when the said Order was passed, neither was the written statement nor any admitted documents on record nor could they have been taken cognizance of. FAO (OS) Nos.444-445 of 2011 29, We are of the view that m order to appreciate the nval submissions, first the scheme of the said Act has to be seen. 30, The said Act was enacted to amend and codify the law relating to adoption and mamtenance amongst Hmdus, It, thus, superseded the traditional Hindu law of adoption with its religious basis and sacramental elements, which had earlier remained in force, Chapter II deals with the aspect of adoption. Section 5 makes it clear that no adoption can be made after commencement of the said Act by or to a Hindu except m accordance with the provisions contained m Chapter II thereof. An adoption made m contravention of the said provisions is to be void, 32, Section 6 of the said Act prescribes the requisites of a valid adoption and no adoption is valid as per sub-section (iv) thereof, unless inter alia the adoption is made in compliance with the other conditions mentioned m Chapter II, 33, Section 7 deals with the capacity of a male Hindu to take m adoption and reads as under: "7. 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 livmR, he shall not adopt except with the consent of his wife unless the wife has completely and fmally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mmd," (emphasis supplied) However, no particular methodology has been prescribed for obtaining such a consent FAO (OS) Nos.444-445 of 2011 Page U of 20

¶34Similarly, Section 9 of the said Act deals with persons capable of giving m adoption, which agam requires the consent of the wife The relevant portion of Section 9 reads as under:

¶9Persons capable of giving in adoption. - (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

(2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall have equal right to give a son or daughter m adoption: Provided that such right shall not be exercised bv either of them save with the consent of the other unless one of them 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. (emphasis supplied)

¶35Apart from specifying as to who is capable of taking in or givmg m adoption (Sections 7 to 9) and who can or is capable of bemg adopted (Section 10), Section 11 prescribes other conditions of valid adoption Section 1 l(vi) of the said Act, which has been relied upon, reads as under: "11. Other conditions for a valid adoption. -

(vi) the child to be adopted must be actuallv given and taken m adoption bv the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up to the family of the adoption." (emphasis supplied)

¶36Section 12 prescribes the effect of adoption and reads as under: "12. Effects of adoption. -An adopted child shall be deemed to be the child of his or her adoptive father or FAO (OS) Nos.444-445 of 2011 " Page of 20 r n mother for all purposes with effect from the date of the adoption and from such date all the ties of the child m 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 contmued 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 maintam relatives in the family of his or her birth,

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

¶37Section 15 proscribes the cancellation of a valid adoption and reads as under: "15. Valid adoption not to be cancelled. - No adoption which has been validlv made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth." (emphasis supplied)

¶38We may notice that under Section 16, there is a presumption as to registered documents relatmg to adoption. The said provision reads as under: "16. Presumption as to registered documents relating to adoption. - Whenever any document registered under any law for the time bemg m force is produced before any court purportmg to record an adoption made and is signed by the person givmg and the person takmg the child in adoption, the court shall presume that the adoption has been made m compliance with the provisions of this Act unless and until it is disproved." FAO (OS) Nos.444-445 of 2011 P<^8« o/20 r

¶39The aforesaid Section only clarifies that there is a presumption that the adoption has to be made m compliance with the provisions of the said Act and if it is registered, the proof of giving m and takmg the child would not be necessary. Thus, if the adoption is disputed, it will be for such a claimant to prove that the ceremony of giving in and taking has not taken place. However, such a presumption would operate so long as there is no rebuttal by the procedures known to law. Thus, registration itself would not be mandatory.

¶40Now, applying the aforesaid scheme of the said Act to the facts of the present case, it is not m dispute that an Adoption Deed was executed on 01.12.1984. It is also not m dispute that both the parents giving in adoption and persons taking m adoption had the legal capacity nor was the appellant suffermg from any disability to be given m adoption. It is not necessary that the Adoption Deed must be registered. In the present case, the Adoption Deed is duly notarized and signed by the father giving in adoption and the adoptive father. From this Adoption Deed, two questions arise:

(i) The effect of the two mothers not havmg signed the Adoption Deed dated 01.12.1984.

(ii) The Adoption Deed having clause (2) giving an assurance for reversion of adoption, were a natural child to be bom from the wedlock of the adoptive parents.

¶41The requirements of consent of the mothers to the adoption again cannot be disputed m view of the statutory provisions more specifically the proviso to Section 7 and the proviso to Section 9(2) of the said Act. It is also tme that there is no particular method set out for givmg such consent. No doubt, in view of the judgment m Ghisalal v. DhanubaTs case (sunral such a consent cannot be presumed merely by presence at the time of adoption and the wife's FAO (OS) Nos.444-445 cf20U r silence or lack of protest on her part cannot give rise to an inference/ that she has consented to adoption. However, m the present case, the adoption was acted upon. It is not even m question that the appellant stayed with his adoptive parents from the date of adoption. He was treated as a child post-adoption for all purposes It was only when the natural child was bom to the adoptive parents on 04.04.1990, i.e., almost five and a half years after the appellant had been adopted that the question arose of reversion of the adoption on account of clause

(2) contamed m the Adoption Deed dated 01.12.1984. Thus, the adoption has been acted upon. Not only that, it is a common case that the appellant contmued to stay m the house of his adoptive parents even post the so-called cancellation of adoption and the only explanation given is that since his grand-mother was residing m that house. It was so done. It is further not m dispute that the adoptive parents' name contmued to be reflected in all records qua the appellant.

¶42We may also notice that respondents No. 1 to 4 have given illustrations of how pre and post-filmg of the suit m question m the present appeal, the appellant contmued to show himself as the child of his adoptive parents Some of these illustrations are as under:

(i) The appellant acquirmg partnership busmess of his adoptive mother on 01.10.2007 and, at that stage, acknowledgmg, affirming and reiteratmg that he was the son of his adoptive parents.

(ii) The appellant choosing not to deny the allegation of his bemg son of adoptive parents m OMP No. 192/2008 where he kept silent and did not file any response. FAO (OS) Nos. 444-445 (f 2011

(ill) The appellant m his written statement to CS (OS) No. 1707/2008 filed by respondent No. 2 herem did not dispute this fact

(iv) The appellant, post-filing of the suit m question m the present appeal, filed the written statement in CS (OS) No. 1707/2008 along with an affidavit duly sworn on oath declarmg himself to be the son of his adoptive parents.

(v) The appellant in his own hand-writing made a complaint to the SHO, P S. Karol Bagh on 16.05.2011 where respondent No. 1, his natural mother, is stated to be his aunt and respondent No. 2 his cousm brother.

¶43In Ghisalal v. Dhapubaf s case (suprai. while dealmg with the aspect of consent of the wife, it has been observed that it may be either m writmg or reflected by an affirmative or positive act voluntarily and willingly done by her. No doubt, her presence cannot be a presumption, but m the facts of the present case, there is affirmative and positive acts both by the adoptive parents mcludmg the mother and the appellant affirming to the adoption. The mterestmg part is that even m the suit, the factum of havmg been validly adopted was never questioned. It is only when the defence has been disclosed by respondents No. 1 to 4 that the appellant appears to have woken up to the legal mfirmity in the plea of reversion of adoption and thereafter seeks to assail the adoption m replication. The subsequent facts, thus, establish that the appellant was given and taken in adoption thereby metmg the parameters of Section 11 (vi) of the said Act.

¶44We may usefully refer to the observations of the learned Single Judge (as he then was) of this Court m Anant Construction (PJ Ltd. V. Ram Niwas, 1994 IV AD (Delhi) 185 = 1994 (31) DRJ 205 FAO (OS) Nos.444'-445 42011 16 of 20 ■PUT" s; relying upon the observations of the Supreme Court in M.S.M.' Sharma v. Krishna Sharma, AIR 1959 SC 395, it was observed m para 20 as under: "20 A plea mconsistent with the case set out bv the plaintiff in the plamt can never be permitted to be raised in replication. So also a plea m rejoinder cannot be inconsistent with the case set out by the defendant m his written statement. Anv subsequent pleading mconsistent with the original pleading shall be refused to he taken on record and if taken shall be liable to be struck off and taken off the file." (emphasis supplied) While acknowledging that if replication is permitted to be filed, it forms part of the pleadings, it has been observed that subsequent pleadmgs are not substitute for amendment in the origmal pleadings. In fact, a Full Bench of this Court in Kedar Nath v Ram Parkash and other connected matters, 1998 VII AD (Delhi) 409 = 1999 (48) DRJ 589 has held that even while amending pleadings, there cannot be additional pleadmgs at variance or mconsistent with origmal pleadmgs.

¶45In view of the aforesaid discussion, we find no ment m the plea of the appellant assailing the adoption.

¶46The second limb, which is the basic plea in the suit, is that the adoption stood cancelled. This is claimed on the basis of clause (2) of the Adoption Deed dated 01.12.1984, the Memorandum of Settlement dated 01.11.1988 and ultimately the document dated 11 08 1991 purporting to be a Cancellation of Adoption. The question of mterpreting these documents qua reversion would apply only if the reversion of adoption m law is permissible. Such a reversion post-valid adoption is clearly barred by Section 15 of the FAO (OS) Nos.444-445 of 2011 f- \ said Act and it is, thus, not even open to plead that such a reversion can take place or that a valid adoption can be cancelled.

¶47The document evidencmg adoption bemg the Adoption Deed dated

01.12.1984 Itself does not become mvalid, i.e., the adoption is valid, but clause (2) contamed m the said Adoption Deed would become invalid bemg hit by Section 15 of the said Act. The said clause is clearly severable from the aspect of adoption. To come to this conclusion, we draw strength from the authoritative pronouncements of the Apex Court in Shin Satellite Public Co. Ltd.'s case tsupral and Tarsem Singh's case (supra)

¶48In Hindu Law of Adoption, Mamtenance, Mmority and Guardianship

(1970) by S.V. Gupte, it has been observed at page 323 that an agreement providmg that on the happenmg of an event, the adoption shall be mvalid or shall be deemed to have not been made is void and IS of no effect. This is an aspect completely apposite to the facts of the present case!

¶49Similarly, m Law of Adoption, Mmonty, Guardianship and Custody (3"^ Edn.) by Paras Diwan at page 131, it has been observed that it is not permissible for natural parents and adoptive parents to enter into agreements stipulatmg circumstances in which an adoption may be cancelled. Such agreement will be void. The acquired status of the child, thus, cannot be altered by the adoptive father or mother or any other person.

¶50There is, thus, no merit even m the second plea.

¶51We agree with the submissions of learned counsel for respondents No. 1 to 4 that injunction cannot be as a matter of right merely because the claim is qua immovable properties and the suit being a partition suit. Mere filing of suit does not amount to an entitlement to get mterim injunction unless the triple test of prima facie case. FAO (OS) Nos.444-445 (f20Il 18 of 20 f balance of convenience and irreparable loss and injury is established. We have already noticed heremabove that the appellant has failed to establish a prima facie case m view of the clear legal impediments.

¶52The facts set out m the pleadmgs show that the estate of late Amarjeet Singh, m fact, stands divided amongst the legal heirs and is enjoyed by them separately post-severance. The only aspect pleaded by the appellant m this behalf is that the same was at his back even though It has a judicial imprimatur. The appellant has gone to the extent of even casting doubt on the character of his natural mother, respondent No. 1 by alleging that respondent No. 4 is not even the child of late Amarjeet Smgh and his natural mother.

¶53The other aspect emphasized by learned senior counsel for the appellant was the fmdmgs arrived at by learned Smgle Judge in the Order dated 11.12.2009 while decidmg the application of respondents No. 1 to 4 under Order VII Rule 11 of the said Code. We find no force m this argument too because of two reasons. Firstly, the parameters while decidmg an application under Order VII Rule 11 of the said Code are distinct from one decidmg an application under Order XXXIX Rules 1 and 2 of the said Code and under Order XL Rule 1 of the said Code. For deciding an application under Order VII Rule 11 of the said Code, the plaint alone can be relied upon as well as the documents filed with the plamt. The occasion to peruse the wntten statement did not even arise nor the subsequent documents filed m support of the written statement, as only the averments made m the plamt are germane and the pleas taken by the defendant m the written statement would be wholly irrelevant at that stage (See Sopan Sukhdeo Sable v. Asstt. Charitv Commr., (2004) 3 SCC 137 and Saleem Bhai v. State of Maharashtra. (2003) 1 SCC 557). Secondly, all that the learned FAO (OS) Nos.444-445 of 2011 Single Judge observed m the Order dated 11.12.2009 was that the list of documents does not unambiguously suggest that there was a clear and valid adoption as is understood m law. There is no further discussion on this aspect. In fact, there could not be much of a discussion because the affirmative and positive actions post-adoption were not before the Court at that stage. The appeal agamst the same was withdrawn. Merely because a plamt cannot be rejected under Order Vll Rule 11 of the said Code will not imply that post-completion of pleadings, the plamtiff would be entitled to mterim injunction. We, thus, find no merit even m this plea. ^

¶54We are, thus, of the view that the appeal is completely meritless and IS accordmgly dismissed with costs quantified at Rs.20,000/-.

¶55Interim orders stand vacated.

¶56Needless to say, any expression of views, as aforesaid, is only for purposes of decision of the intenm application and would not prejudice the final decision m the suit post trial. f SANJAY KISHAN KAUL, J. JANUARY 24, 2013

VIPIN SANGHI, J. madan FAO (OS) Nos. 444-445 of 2011

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 22.11.2012 Date of Decision : 24.01.2013 + FAQ (OS) Nos. 444^5 of 2012 SAHIB SINGH Appellant Through : Mr. J.P. Sengh, Sr. Adv. with Mr. J.S. Bhasin, Ms. Rashmi Priya and Ms. Ankita Gupta, Advocates. VERSUS ARVINDER KAUR & ORS Respondents Through : Mr. Jagjit Singh and Mr. Bhagat Singh, Advs. for R - 1 to R - 4. Mr. Jagbir Singh, Adv. for R - 5. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR JUSTICE VIPIN SANGHI SANJAY KISHAN KAUL. J. 1. The appellant filed a suit, being CS (OS) No. 2622/2008, for partition, mandatory injunction, declaration and rendition of accounts agamst the respondents. The appellant claimed that he was the son of late Sardar Amarjeet Singh. Respondent No. 1 is his natural mother, while respondent No. 2 is his brother and respondent No. 3 the sister. Late Amarjeet Singh is stated to have passed away on 23.03.2007 intestate leavmg behmd movable and immovable properties m which the appellant had undivided interest. The FAO (OS)Nos.444-445cf20II ~ Page 1 cf 20 'r amounts being realized from the properties are stated to have been personally appropriated by respondents No . 2 to 4 2. Respondent No, 5, namely, Sardar Jagbir Smgh, is the real brother of late Amarjeet Smgh. He is stated to have had no issue from his wedlock which resulted m a mutual understandmg / settlement between late Amarjeet Smgh and him that late Amarjeet Smgh would give the custody of his child to his brother / respondent No. 5, who shall look after him and m case a child is bom from the wedlock of Sd. Jagbir Smgh and his wife withm 7 years, then the custody of the child (appellant herem) would revert back to late Amarjeet Smgh for all intents and purposes. An Adoption Deed / Settlement dated 01.12.1984 IS stated to have been executed between the parties. Sd. Jagbir Smgh was blessed with the child on 04.04.1990 and, thus, the custody of the appellant is stated to have reverted back to late Amarjeet Smgh and a document called ''Cancellation of Adoption Deed Dated 01.12.1984''' was also executed between the parties on 11.08.1991. It IS m view thereof that the appellant clauns that he has all right, title and mterest m the estate of late Amarjeet Singh. 3. Insofar as respondent No. 4 is concerned, the allegation is that he was brought up by respondent No. 1 (his mother) allegmg him to be her brother, but later transpired that respondent No. 4 was actually her son from a marriage with one Sd. Jagbir Smgh Waha This, m fact, resulted in late Amarjeet Smgh, dunng his lifetime, mstitutmg a petition for declaration of his marriage null and void on the ground that his spouse had a subsistmg earlier marriage, but that issue was resolved between respondent No. 1 and late Amarjeet Smgh. Respondent No. 4 is alleged to have never been adopted by late Amarjeet Smgh and, thus, it is pleaded that he had no nght, title or mterest in the suit properties. FAO (OS) Nos. 444-445 of 2011 4. The appellant has alleged that he came to know in October, 2008 that respondent No. 4 had filed a suit for declaration and mandatory injunction agamst the legal heirs of late Amarjeet Smgh excludmg the appellant alleging that he was the son of late Amarjeet Smgh. The suit IS stated to be collusive and m the suit, some oral Family Settlement dated 23 .04.2007 was pleaded. The name of the appellant did not figure in the said Family Settlement alleged to have been executed between respondent No. 4 on the one hand and respondents No. 1 to 3 on the other. The objective is alleged to be to deprive the appellant of his due share and, thus, he has claimed that the Memorandum of Oral Family Settlement dated 23 04.2007 be declared null and void and not enforceable agamst the appellant. However, no relief is claimed agamst respondent No. 5. 5. Respondents No. 1 to 4 filed a common written statement allegmg that the whole cause of action of the appellant was based on the premise of the adoption bemg cancelled m the year 1991