Smt. Harsh Gandhi vs Shri Thakar Dass Thakkar & Others
2012 Latest Caselaw 684 Del

.*         HIGH COURT OF DELHI: NEW DELHI

                                            Order pronounced on: 01.02.2012

+              I.A. No.12224/2011 in CS (OS) No.1547 of 2011


       SMT. HARSH GANDHI                                      ..... Plaintiff
                    Through                  Mr. Arun Kumar Gupta, Adv.

                       versus


       SHRI THAKAR DASS THAKKAR & OTHERS ..... Defendants
                    Through Mr. Rajiv Bansal, Adv. with
                            Mr. Rahul Bhandari & Ms. Swati
                            Gupta, Advs. for D-5to D-8.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The present application for rejection of plaint under Order VII, Rule 11 read with Section 151 CPC, has been filed by defendants No.5 to 8 along with the written statement to the suit for possession, declaration and permanent injunction.

2. It is stated in the application that the plaintiff, who is claiming herself to be the adopted daughter of Late Shri Tulsi Dass has not challenged the transfer of membership by Late Shri Tulsi Dass in favour of defendant No.2 qua the suit property, but has only challenged the subsequent documents, i.e. General Power of Attorney, Will, Receipt and Agreement to Sell, all dated

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.1 of 15 26.06.1997 which are only confirmatory in nature. Further, Late Shri Tulsi Dass, who lived upto 15.09.2007, never during his lifetime, challenged the transfer of membership or the abovementioned subsequent documents. Therefore, the present suit is liable to be dismissed.

3. It is further stated that the present suit is not maintainable, because the defendants No.5 to 7 are the bonafide purchasers of the suit property from Shri Vikram Tandon vide sale deed dated 30.04.2011 and the defendant No.8, in respect of her share, is also a bonafide purchaser from the defendants No.5 to 7 vide sale deed dated 30.05.2011 and the plaintiff cannot challenge the said two sale deeds. The plaintiff has not challenged the sale deed dated 27.01.2000 executed by defendant No.2 in favour of defendant No.3 in respect of the suit property and also the sale deed dated 23.04.2008 whereby the defendant No.3 transferred the suit property in favour of defendant No.4.

4. As per the defendants, the plaintiff is not the adopted daughter of Late Shri Tulsi Dass and, therefore, has no locus-standi to file the present suit. It is also stated that Late Shri Tulsi Dass, had transferred the membership of Low Income Friends Co-operative House Building Society in favour of defendant No.2 during his lifetime and the said Society had also duly approved the said resolution on transfer in its meeting dated 22.10.1978 and thus, the suit property was transferred in favour of defendant No.2. The Society also issued the letter dated 12.10.1978 to defendant No.2, informing him about the said change in membership. Since in the year 1978, no specific document for transfer of the suit property in favour of defendant No.2 was executed, therefore, in the year 1997, as a token of

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.2 of 15 acknowledgement of the said transfer, Late Shri Tulsi Dass executed certain documents like General Power of Attorney, Will, Receipt and Agreement to Sell, all dated 26.06.1997 in favour of defendant No.2.

5. Late Shri Tulsi Dass remained alive till 15.09.2007 and the defendant No.2 was in possession of the suit property but, Shri Tulsi Dass never took any steps to challenge the said transfer. This clearly shows that it was done by the Society at the request of Late Shri Tulsi Dass himself. Therefore, the further transaction by defendant No.2 in favour of defendant No.3 and subsequently to defendants No.4, 5 to 7 and defendant No.8 cannot be challenged by the plaintiff.

6. In reply to the above application, the plaintiff has stated that the present application has been filed by the defendants only to delay the disposal of the present suit. The defendants herein have not shown any ingredients of Order VII, Rule 11CPC while seeking rejection of the plaint. It is further stated the all the documents dated 26.06.1997 like General Power of Attorney, Will, Receipt and Agreement to Sell are forged and fabricated and were disclosed/filed first time only in September, 2010 along with the written statement filed by defendant No.2 herein in response to the suit bearing No.274 of 2010, pending before the Rohini Court. The said documents had never been produced by the defendants before September, 2010 nor the defendants asserted any right, title or interest by any of the said documents prior to disclosure of the same. In March, 2008, the plaintiff had served a legal notice upon defendant No.1, asking him for details qua the suit property, but the defendant No.1 gave a vague reply and did not disclose

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.3 of 15 anything about the alleged transfer of membership and the alleged subsequent documents dated 26.06.1997.

7. It is further stated that defendants No.5 to 8 are not bonafide purchasers and they have purchased the suit property knowing well that there are litigations pending qua the said property in District Courts as well as in the High Court. With regard to not challenging the sale deed dated 27.01.2000, it is stated that in the prayer clause of the suit, the said sale deed dated 27.01.2000 could not be inadvertently mentioned but, thereafter, the plaintiff has moved an amendment application which is pending disposal before this Court.

8. Mr. Bansal, learned counsel appearing on behalf of defendants No.5 to 8, during the course of hearing of this application, has raised only one submission that only a boy can be adopted after completion of ceremonies relating to adoption when natural parent is to hand over the adoptive boy and the adoptive parents to receive him. Thus, the plaintiff is entitled to claim any rights alleged by her. He has also denied that she is even adopted daughter of late Sh. Tulsi Dass, therefore, the plaint has to be rejected by allowing the present application. In support of his submissions, Mr. Bansal has also referred the judgment passed in the case of M. Gurudas and others vs. Rasaranjan and others, reported in (2006) 8 Supreme Court Cases 367. The relevant para-26 at page-377 reads as under:-

"26. To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony. Performance of „datta homam‟ was imperative, subject to just exceptions. Above all, as noticed hereinbefore, the question would arise as to whether adoption of a daughter was permissible in law."

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.4 of 15

9. The learned counsel has referred paras-444, 485 and 486 of the "Mulla Principles of Hindu Law" in support of his submission which read as under:-

"444. Object of adoption.- The objects of adoption are twofold: the first is religious, to secure spiritual benefit to the adopter and his ancestors by having a son for the purpose of offering funeral cakes and libations of waters to the soul of the adopter and his ancestors. The second is secular, to secure an heir and perpetuate the adopter‟s name.

The Supreme Court, agreeing with earlier decisions of the Privy Council, has expressed the view that the validity of an adoption is to be determined by spiritual rather than temporal considerations, and that devolution of property is only of secondary importance.

When a Hindu gives a boy in adoption, his act is, according to the Hindu shastras, in the nature of a sacred gift voluntarily made. It is on that account, that Manu requires the gift to be „confirmed by pouring water‟. A daughter given in marriage, which is called kanyadan and a son given in adoption, which is called putradan, stand in this respect on the same footing. Both are gifts for religious and secular purposes.

x x x x x x

485. Ceremonies relating to adoption.- (1) The ceremonies relation to an adoption are:

(a) the physical act of giving and receiving, with intent to transfer the boy from one family into another (486);

(b) the datta homam, i.e., oblations of clarified butter to fire (487); and

(c) other minor ceremonies, such as putresti jag (sacrifice for male issue).

(2) The physical act of giving and receiving is essential to the validity of an adoption (486).

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.5 of 15 As to datta homam, it is not settled whether its performance is essential to the validity of an adoption in every case (487).

As to the other ceremonies, their performance is not necessary to the validity of an adoption.

(3) No religious ceremonies, not even datta homam, are necessary in the case of Sudras; nor are religious ceremonies necessary amongst Jains or in the Punjab.

486. Giving and receiving.- (1) The physical act of giving and receiving is absolutely necessary to the validity of an adoption. This is not only in the case of the twice-born classes, but also in the case of Sudras. This ceremony is of the essence of adoptions, and the law does not accept any substitute for it. Mere expression of consent, or the execution of a deed of adoption, though registered, but not accompanied by an actual delivery of the boy, does not operate as a valid adoption. To constitute giving and taking in adoption all that is necessary is that there should be some overt act to signify the delivery of the boy from one family to another.

No particular form is prescribed for the ceremony, but the law requires that the natural parent should hand over the adoptive boy and the adoptive parent should receive him. The nature of the ceremony may vary depending upon the circumstances of the case. However, the ceremony of giving and taking should necessarily be there. In case of an old adoption, strict proof of the performance of the ceremonies may not be available. An adoption acquiesced in and recognized for a number of years by the person making the adoption and a long course of recognition on the part of persons who would be expected to know of the fact and who were best acquainted with the circumstances, can give rise to the inference that the conditions relating to the adoption were fulfilled. (2) Diverse circumstances may necessitate that the act of actual giving or taking should be delegated to a third person and, therefore, the parents after exercising their volition to give and take the boy in adoption, can both or either of them

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.6 of 15 delegate the physical act of handing over the boy or receiving him by way of adoption to a third party.

However, the power (or right) to give a son in adoption cannot be delegated to any person. The delegation can only be of the physical act mentioned above. Accordingly, the father or mother may authorize another person to perform the physical act of giving a son in adoption to a named person and can delegate someone to accept the child in adoption on his or on her behalf."

10. The learned counsel for the plaintiff, on the other hand, has argued that all the submissions made by Mr. Bansal are not tenable in view of the amendment in the Hindu Adoptions & Maintenance Act, 1956 (78 of 1956) (hereinafter referred to as the "Act"). In support of his submissions, the learned counsel has referred Sections 4 to 10 of the said Act. The same read as under:-

"4. Over-riding effect of Act - Save as otherwise expressly provided in this Act.-

(a) any text, rule of interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act.

5. Adoptions to be regulated by this Chapter.- (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provision shall be void.

(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.7 of 15 could not have acquired except by reason of the adoption, nor destroy the right of any person in the family of his or her birth.

6. Requisites of a valid adoption.- No adoption shall be valid unless-

(i) the person adopting has the capacity, and also the right, to take in adoption;\

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

7. Capacity of a male Hindu to take in adoption.- Any male Hindu who is 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 the them is unnecessary for any of the reasons specified in the preceding proviso.

8. 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,

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.8 of 15 has the capacity to take a son or daughter in adoption.

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

(2) Subject to the provision 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 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 guardian 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 purposes of this section-

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

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.9 of 15 (ia) "guardian" means a person having the care of the person of 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.

10. Persons who may be adopted.- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:-

                       (i)     he or she is Hindu;
                       (ii)    he or she has not already been adopted;

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption."

11. The learned counsel for the plaintiff has also referred para-1 of the plaint wherein it has been stated that late Shri Tulsi Dass S/o Shri Ram Ditta Mal Thakkar was married to Smt. Ganga Devi and from their wedlock, there was no issue. Hence, Shri Tulsi Dass and his wife adopted the plaintiff herein, i.e. Smt. Harsh Gandhi in the year 1956 as per Hindu customs and rites.

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.10 of 15

12. On this, Mr. Bansal has referred the certificate issued by Central Board of Secondary Education wherein the date of birth of plaintiff was shown as 05.08.1956. He states that the said date i.e. 05.08.1956 be read alongwith para 1 of the plaint where it is mentioned that the plaintiff was adopted by Shri Tulsi Dass in the year 1956. Thus, the statement of the plaintiff cannot be accepted that she was adopted after the amendment in the Act came into force i.e. 21.12.1956. According to him, she must have been adopted prior to the amendment of the Act. Thus, the submission of the plaintiff is without any force.

13. I have considered the rival submissions of the parties. The law is well-settled for deciding the application under Order VII, Rule 11 CPC and has been discussed in great detail in the order passed by this Court on 14.12.2007, in CS(OS) No.972/2007, titled as Sh. Vivan Mehra Vs. Smt. Gita Kwatra and Ors., the relevant paras No.13 to 15 whereof read as under:

"13. It is no more res integra that to decide under Order VII, Rule 11 CPC, the averments in the plaint have to be read without looking at the defense and thereupon it has to be seen whether on the averments made in the plaint, Order VII Rule 11 get attracted or not and from the averments made in the plaint it has to be seen whether the jurisdiction of the Court is made out or not and whether the suit is barred by any law or plaint does not disclose any cause of action. Rejection of a plaint is a serious matter as it non suits the plaintiff and kills the cause of action. It cannot be ordered cursorily without satisfying the requirement of the said provision. Reliance for this proposition can be placed on 2005 (4) AD (Delhi) 541, Kanwal Kishore Manchanda Vs S.D.Technical Services Pvt. Ltd.; 2005 (2) AD (Delhi) 430, Arvinda Kumar Singh Vs Hardayal Kaur; 2005 (116) DLT 191, Asha Bhatia Vs. V.L.Bhatia; 2003 (5) AD (Delhi) 370, Punam Laroia Vs

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.11 of 15 Sanjeev Laroia 2004 (111) DLT 121, Condour Power Products Pvt. Ltd. Vs Sandeep Rohtagi. A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is, if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed or not. In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown.

14. In Vijai Pratap Singh v. Dukh Haran Nath Singh (AIR 1962 SC 941) the Supreme Court held: (AIR pp.943-44, para

9) "By the express terms of Rule 5 clause (d), the court is concerned to ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the Court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him."

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.12 of 15

15. In D. Ramachandran Vs. R.V. Janakiraman and Others, (1999) 3 SCC 267, the Apex Court had held that effect of dismissal of a suit is altogether different and distinct from the effect of rejection of the plaint. For consideration whether the plaint discloses cause of action or not the pleas and documents of the defendants are not to be considered. The Apex Court had held as under:- "Learned Single Judge fell in error in placing reliance upon the material supplied by the defendant, which alone is sufficient to set aside the impugned order. Learned Single Judge instead of proceeding to reject the plaint dismissed the suit, which approach is also erroneous. The effect of dismissal of suit is altogether different and distinct from the effect of rejection of the plaint. In case plaint is rejected under Order 7 Rule 11, CPC, filing of a fresh plaint in respect of the same cause of action is specifically, permitted under Rule 13 of Order 7, CPC. Altogether different consequence follows in the event of dismissal of suit, which has the effect of precluding the plaintiff to file a fresh suit on the same cause of action. Rejection of plaint takes away the very basis of the suit rendering as if there was no suit at all or that no suit was instituted. Order of dismissal of suit while recognising the existence of a suit indicates its termination. While deciding the application under Order 7 Rule 11, CPC, learned Single Judge ought not and could not have dismissed the suit. Even in the decision of the Supreme Court in T.Arvindandam's case (Supra), relied upon by learned Counsel for the appellant, it was held that if on a meaningful- not formal-reading of the plaint it is manifestly vexatious and merit-less, in the sense of not disclosing a clear right to sue, the Trial Court should exercise his power under Order 7 Rule 11, CPC taking care to see that the ground mentioned therein is fulfilled. In order to fulfill that ground bare allegation made in the plaint and documents filed therewith were required to be looked into, which in the instant case clearly disclosed at least a cause of action against the defendant that defendant was liable for damages for its acts of omission and commission. It would be an altogether different situation that the plaintiff might not ultimately succeed in obtaining a decree against the defendant or that Court might come to the conclusion that suit would not be maintainable against the defendant and that plaintiff had a cause of action

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.13 of 15 only against defendant's principal and its parent until in Hong Kong, but such aspect could not have been gone into at this stage. Three paragraphs of the plaint quoted above in our view do clearly disclose cause of action for the plaintiff to claim damages."

14. In the present case, it is specifically stated in the plaint that the plaintiff was brought up by Shri Tulsi Dass and his wife since the day of her adoption till their demise. The plaintiff was always treated as their daughter having full love and affection in her favour and she was born in 1956.

15. The learned counsel for plaintiff has also argued that she was adopted as a daughter after the amendment in the Act came into force. However, he admits that in the plaint specific date is not mentioned. He argued that the contesting defendants No.1 to 3 in the written statement filed by them in other proceedings have admitted the fact that the plaintiff was born in the year 1956 and was adopted in the beginning of the year 1957 although he admits that the plaintiff cannot take the benefit of said admission in the present application.

16. In view of the statement made in the plaint, I am of the view that incase, the plaint discloses some cause of action or raises some questions which require to be adjudicated even the case is weak and not likely to succeed, is no ground for rejection of plaint. The submission of the defendants cannot be taken into consideration the defenses which the defendants may raise upon the merits; nor is the court competent to make the detailed enquiry into doubtful or complicated questions of law or fact.

17. There is a specific statement made in the plaint by the plaintiff that she was adopted in the year 1956 as per the Hindu Customs and Rites. Therefore, it cannot be said at this stage in the absence of evidence, as to

I.A. No.12224/2011 in CS(OS) No.1547/2011 Page No.14 of 15 whether she was adopted prior to the amendment of the Act or later on. Hence, the contention of the learned counsel for defendants No.5 to 8 cannot be accepted, as I feel that the trial on this aspect is required in order to decide the actual date of adoption.

18. Therefore, I am not inclined to reject the plaint on this ground. Therefore, the present application filed by defendants No.5 to 8 is accordingly dismissed.

CS(OS) No.1547/2011, I.A. No.10038/2011 (u/o XXXIX, R.1 & 2 CPC), I.A. No.12225/2011 (u/o XXXIX, R.4 CPC, by D-5 to 8) and I.A. No.15846/2011 (u/o VI, R.17 CPC, by plaintiff)

List on 11.04.2012.

MANMOHAN SINGH, J.

FEBRUARY 01, 2012/ka

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