Ajay Bijli And Anr. vs State And Anr.
1998 Latest Caselaw 973 Del

JUDGMENT

Dalveer Bhandari, J.

1. Anil Bijli has filed this application under Order 1, Rule 10 read with Section 151 of the Code of Civil Procedure with the provisions of Indian Succession Act for impleading the applicant as a party in the probate case pending in this Court.

2. It is mentioned in the application that Anil Bijli is an adopted son of late Shri Krishan Mohan Bijli and one of his legal heirs who is directly affected by the grant of probate and he is a necessary and proper party to the present case and his presence is necessary for proper adjudication of the aforesaid probate case. It is mentioned in the application that because of heart ailment the application could not be moved earlier.

3. Notice of this application was issued and in pursuance to the notice a detailed reply was filed on behalf of petitioner No. 1. In reply it is categorically denied that the applicant Anil Kumar is the adopted son of late Shri Krishan Mohan Bijli. It is also mentioned that late Shri Krishan Mohan Bijli has executed the Will which is legally valid and binding. It is mentioned that petitioner No. 2 is the lawfully wedded wife and widow of late Shri Krishan Mohan Bijli. There was neither any offer to take the applicant Anil Kumar, nor he was even taken, in adoption by either late Shri Krishan Mohan Bijli or his wife Smt. Sandooria Rani.

4. It is mentioned that late Shri Krishan Mohan Bijli was the son of late Shri Sain Dass. Late Shri Sain Dass had three sons, Shri Madan Lal Mehra, Shri Krishan Mohan Bijli and Shri Brij Mohan Mehra. Late Shri Sain Dass had a daughter, namely, Smt. Darshna Kumari. Smt. Darshna Kumari was married to Shri Chaman Lal Mahajan. Smt. Darshna Kumari and Shri Chaman Lal Mahajan from their wedlock were blessed with three sons namely Shri Anil Kumar (the applicant above named), Shri Lalit and Shri Titoo and one daughter Neena. Smt. Darshna Kumari had left her husband and ran away. As such, the whole family had been very much annoyed with her conduct. In these circumstances, later Shri Krishan Mohan Bijli who was financially quite well off, had given some financial help to the children of his sister Smt. Darshna Kumari sometime to taken advantage of the position and status of late K.M. Bijli, his sisters children used his surname ' BIJLI' but he had never adopted the applicant or any other children of Smt. Darshna Kumari.

5. It is also incorporated in reply to the application that late Shri Krishan Mohan Bijli never treated the applicant, Anil Kumar, as his adopted son. Ajay Bijli is the only child of late Shri Krishan Mohan Bijli. In reply it is denied that the applicant is a necessary or a proper party. It is mentioned that the applicant is not even the class-I heir and is not required to be shown i n the array of relations or to be imp leaded as a party. The applicant has no right in the estate of late Shri Krishan Mohan Bijli and has no right whatsoever to challenge the genuineness, execution, validity or enforceability of the Will executed by late Shri Krishan Mohan Bijli. The rejoinder to the reply has been filed in which averments of the petition have been reiterated.

6. Mr. Subhash Oberoi learned Counsel who appeared for the applicant submitted that the applicant was adopted by late Shri Krishan Mohan Bijli and he denied that this application has been moved with mala fide intention to grab the property or extract the money as alleged.

7. Mr. Oberoi submitted that the applicant Anil Bijli is a necessary party in this probate petition and the probate petition cannot proceed unless Anil Bijli is imp leaded as a party to these proceedings.

8. Mr. Mukul Rohtagi, learned Senior Counsel appearing on behalf of the non-applicant submitted that this application is an abuse of process of law. The contents of the application are false to the knowledge of the applicant and the application has only been moved to grab the property or extort money from the petitioner. He mentioned that the applicant's sister Smt. Neena Talwar had filed an application being I.A. No. 10144/ 92 and 10356/92 on similar baseless, false and mala fide allegations. Thereafter she had filed another application being I.A.No.7685/95 wherein it has specifically being averred "it is accepted, understood and admitted bySmt. Neena Talwar that she nor her brother Anil Bijli were ever adopted by late Shri K.M. Bijli and/or Sandhooro Rani. The applications being I.A. No. 10144 of 1992 and LA. No. 10356 of 1992 were filed on misunderstanding about the status and relationship of the applicant and her brother to later Shri K.M. Bijli."

9. The said application is not only supported by an affidavit of the said Smt. Neena Talwar but also by an affidavit of Mrs. Darshna Kumari who is the mother of the applicant Anil Kumar.Smt.Darshna Kumari in her affidavit has clearly deposed that she was blessed with the following children out of wedlock with Shri Chaman Lal Mahajan, her husband :

(a) Anil Kumar Son

(b) Neena Talwar Daughter

(c) Rajesh Mahajan Son

(d) Lalit Kumar Son

(e) Gopal Krishan Son (deceased)

10. She further stated that neither she nor any member of her family including her aforesaid children have any concern or connection with the properties or estate of late Shri Krishan Mohan Bijli and are not entitled to any portion thereof. Her aforesaid children continued to form part of her family and were never given any adoption by her or by her husband nor were they taken in adoption by late Shri K.M. Bijli or his wife. It is further stated that Ajay Bijli is the only son of late Shri K.M. Bijli. Lata Shri K.M. Bijli out of generosity of his heart had been kind to the children of his sister.

11. Mr. Rohtagi submitted that in view of the affidavit of Mrs. Darshna Kumari, mother of Anil Kumar, the claim set up by Anil Kumar is false, baseless and mala fide. It is also mentioned That citation of this petition was duly published in the newspaper. The applicant was throughout aware of the filing of the present petition and had fully accepted that he had no right, title or interest in the estate of late Shri K.M. Bijli and for this reason had not claimed any rights whatsoever. It is further submitted that it is incorrect and denied that the applicant has any problem due to which he could not file the application. The applicant is leading a normal life and he is active in business and social life.

12. Mr. Rohtagi, further mentioned that the applicant has no right, title or interest in the estate of late Shri K.M. Bijli. The applicant has no concern with movable or immovable property of the deceased. The applicant has no right to be imp leaded as a party as he is not a necessary party to the present petition.

13. Mr. Rohtagi, learned Senior Counsel for the non-applicant has drawn my attention to the sale deed executed on 12th February, 1988 with regard to the sale of the property in which Anil Kumar Mahajan has been described as son of Chaman Lal Manajan.Hehas also referred to the Will of Smt.Darshana Kumari executed on 15.5.1995 in which she has described Anil Kumar as his son.

14. Mr. Rohtagi also submitted that in Hindu Adoptions and Maintenance Act, 1956, the entire procedure of giving and taking of adoption of a Hindu male is imperative. According to Section '7' of the said act a major male Hindu of sound mind can take a son or daughter in adoption with the consent of his wife. The section reads as under :

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

15. In the instant case admittedly there has been no adoption ceremony and the wife of late Shri K.M. Bijli was alive and no consent, as required by the Act, was taken. Similarly, there has to be compliance of Section '9' of the Act. Section '9' reads as under:

"Persons 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 (3) and Sub-section (4)], the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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.

(3) The mother may give the child in adoption if the father 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.

(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a Court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the Court to any person including the guarding himself.

(5) Before granting permission to a guardian under Sub-section (4), the Court shall be satisfied -that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the Court may sanction.

Explanation--For the purpose of this section -

(i) the expressions "father" and "mother" do not include an adoptive father and an adoptive mother;

[(ia) "guardian" means a person having the care of the person or a child or of both his person and property and includes -

(a) a guardian appointed by the Will of the child's father or mother; and

(b) a guardian appointed or declared by a Court; and

(ii) "Court" means the City Civil Court or a District Court within the local limits of whose jurisdiction the child to be adopted ordinarily resides."

16. The father cannot give in adoption without the consent of the mother. According to Mr. Rohtagi, there was no compliance of either Section '7' or Section '9', therefore, there was no adoption as pleaded by the applicant.

17. On consideration of the totality of the facts and circumstances and large number of other documentary evidence on record, it is abundantly clear that the applicant failed to establish that there was compliance of the provisions of the Hindu Adoptions and Maintenance Act, 1956 and the applicant was never adopted by late Shri K.M. Bijli. The applicant has also failed to show that there was any adoption ceremony.

18. The application is totally mala fide and is an abuse of process of law. In these circumstances, the application is dismissed with costs with is quantified as Rs. 10,000/-.

19. The suit and all surviving IAs are accordingly disposed of.