Delhi High Court
Sahib Singh vs Arvinder Kaur & Ors. on 24 January, 2013
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 22.11.2012
Date of Decision : 24.01.2013
+ FAO (OS) Nos. 444-445 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
against 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 leaving behind movable and immovable
properties in which the appellant had undivided interest. The
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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 Singh, is the real brother of
late Amarjeet Singh. He is stated to have had no issue from his
wedlock which resulted in a mutual understanding / settlement
between late Amarjeet Singh and him that late Amarjeet Singh
would give the custody of his child to his brother / respondent No. 5,
who shall look after him and in case a child is born from the wedlock
of Sd. Jagbir Singh and his wife within 7 years, then the custody of
the child (appellant herein) would revert back to late Amarjeet Singh
for all intents and purposes. An Adoption Deed / Settlement dated
01.12.1984 is stated to have been executed between the parties. Sd.
Jagbir Singh 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 Singh and a document called "Cancellation of Adoption
Deed Dated 01.12.1984" was also executed between the parties on
11.08.1991. It is in view thereof that the appellant claims that he has
all right, title and interest in 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) alleging him to be
her brother, but later transpired that respondent No. 4 was actually
her son from a marriage with one Sd. Jagbir Singh Walia. This, in
fact, resulted in late Amarjeet Singh, during his lifetime, instituting a
petition for declaration of his marriage null and void on the ground
that his spouse had a subsisting earlier marriage, but that issue was
resolved between respondent No. 1 and late Amarjeet Singh.
Respondent No. 4 is alleged to have never been adopted by late
Amarjeet Singh and, thus, it is pleaded that he had no right, title or
interest in the suit properties.
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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 against the legal heirs of late Amarjeet Singh excluding
the appellant alleging that he was the son of late Amarjeet Singh.
The suit is stated to be collusive and in 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 against the appellant.
However, no relief is claimed against respondent No. 5.
5. Respondents No. 1 to 4 filed a common written statement alleging
that the whole cause of action of the appellant was based on the
premise of the adoption being cancelled in the year 1991 and the
appellant reverting back to his natural parents. The cancellation was
denied though giving in adoption was accepted. The appellant is
stated to have become a child of his adoptive father / respondent No.
5 with severance of relationship with his natural family. Thus, no
adoption, which has been validly made, could be cancelled in law by
the adoptive father or mother.
6. The estate of late Amarjeet Singh, on his passing away on
23.03.2007, is stated to have been distributed amongst all his legal
heirs in accordance with law, which have received the imprimatur of
judicial proceedings and have been accordingly enjoyed. It is also
specifically denied that Sardar Navdeep Singh was not the son of late
Amarjeet Singh. The allegations are stated to be defamatory of
respondent No. 1.
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7. The written statement separately filed by respondent No. 5 alleges
that the adoption was really an agreement with the intention that the
wife of respondent No. 5 may conceive and was not to transfer the
appellant permanently to the family of respondent No. 5.
Respondent No. 5 did not insist on carrying out changes in the
official record and the appellant continued to reside with the
grandmother in the house of respondent No. 5 even after the death of
late Amarjeet Singh.
8. The appellant, at the stage of institution of the suit, had also filed an
application, being IA No. 15524/2008, under Order XXXIX Rules 1
and 2 of the Code of Civil Procedure, 1908 (for short, „the said
Code‟). However, no ad interim ex-parte order was granted and
notice was issued in the application while issuing summons in the
suit.
9. Respondents No. 1 to 4 moved an application, being IA No.
130/2009, under Order VII Rule 11 read with Section 151 of the said
Code for rejection of plaint on the ground that the plaint as framed
was barred by law as there could not be any reversion of adoption.
This application was decided by the learned Single Judge vide Order
dated 11.12.2009. This application was opposed by the appellant on
the ground that clause 2 of the Adoption Deed dated 01.12.1984
referred to the reversion of adoption on the birth of a child out of the
wedlock of respondent No. 5 and his wife, which reads as under:
"2. That the first party assured the second party that in
future if any child will be born out of the wedlock of the
first party, the first party will hand over the custody of the
said adopted child to the second party, i.e., Natural parents
without delay and first party will cancel the said adoption
deed immediately."
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10. This was followed up with the Memorandum of Settlement dated
01.11.1988, which once again reiterates the said assurance. Reliance
is also placed on the document dated 11.08.1991 styled as
„Cancellation of Adoption Deed Dated 01.12.1984' on account of
respondent No. 5 and his wife giving birth to a son on 04.04.1990
and consequently cancelling the said Adoption Deed.
11. Learned Single Judge opined in the last paragraph, i.e., paragraph 7
of the Order dated 11.12.2009 that while the stand in law of
respondents No. 1 to 4 of their being no reversion possible of an
adoption is correct, but the Court cannot be oblivious to the conduct
of parties and while adjudicating an application under Order VII
Rule 11 of the said Code confines itself to the averments made in the
suit and the list of documents. Learned Single Judge opined that
those documents do not unambiguously suggest that there is clear
and valid adoption as is understood in law (without reference to any
document particularly), but that ultimately it is possible that the
Court might agree with the respondents on interpretation placed on
clause (1) that the subsequent stipulation in the Adoption Deed must
be disregarded. The application was consequently rejected.
Respondents No. 1 to 4 laid a further challenge by filing FAO (OS)
No. 51/2010, which was, however, dismissed as withdrawn on
19.01.2010.
12. The hearing on the application for interim relief being IA No.
15524/2008 was subsequently taken up and the said application as
well as another unnumbered application under Order XL Rule 1 of
the said Code have been dismissed vide the impugned Order dated
03.12.2010. Learned Single Judge in the impugned Order has
observed that there were two questions arising for consideration, i.e.,
(i) the validity of the adoption of the plaintiff on 01.12.1984; and
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(ii) the validity of the cancellation of the adoption on 11.08.1991.
It has also been noticed that the validity of the adoption was never
assailed in the plaint, but the objection has been raised, for the first
time, only in the replication.
13. Learned Single Judge has opined that prima facie the objection to the
Adoption Deed dated 01.12.1984 was unsustainable as the condition
contained in the Adoption Deed was contrary to law and could not
invalidate the valid adoption. The law is stated to be well settled qua
the second issue by Sections 12 and 15 of The Hindu Adoptions and
Maintenance Act, 1956 (hereinafter referred to as, „the said Act‟) -
Section 12 providing that the child would be a child of the adoptive
father or mother, while Section 15 providing that no adoption can be
cancelled by the adoptive father or mother.
14. The basic contention raised at the stage of admission of the appeal
was that there have been two distinct opinions rendered by two
learned Single Judges qua the Adoption Deed - one while examining
application under Order VII Rule 11 of the said Code favouring the
appellant, while the other was vide the impugned Order dated
03.12.2010 while deciding the applications for interim relief.
15. Learned senior counsel for the appellant has assailed the impugned
Order dated 03.12.2010 on the ground that the Adoption Deed dated
01.12.1984 does not meet the requisite parameters of a valid
adoption deed as it is not signed by the two mothers. It is stated to
be a conditional adoption followed by the Family Settlement labeled
as a Memorandum of Settlement dated 01.11.1988 and since the
natural child was born out of the wedlock of respondent No. 5 and
his wife, the Adoption Deed was cancelled on 11.08.1991 in terms
whereof the adoptive parents have no right over the adoptive child
being their child. It is, however, not disputed that the name of
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respondent No. 5 continued to be used as the father due to love and
affection even after the appellant reverted back to his family of birth,
especially as the brothers had very cordial relationship. The
Adoption Deed is pleaded to be in the nature of a Family Settlement
not meeting the essential requirements of an Adoption Deed and,
thus, was capable of being cancelled as was done.
16. Learned senior counsel for the appellant submitted that as per
Section 11(vi) of the said Act, the child to be adopted must actually
be given and taken in adoption with intent to transfer the child from
the family of his birth to the family of his adoption. In the facts of
the present case, it was submitted, since respondent No. 5 was
issueless, the appellant had to revert back to the natural family in
case the child was born. Learned senior counsel has placed reliance
on the judgment of the Supreme Court in Ghisalal v. Dhapubai
(Dead) By L.R.s and Others, 2011 (1) SCALE 325 to support his
arguments that while dealing with the requisites of a valid adoption,
the Court cannot presume consent of the wife simply because she
was present at the time of adoption.
17. Lastly, learned senior counsel for the appellant has sought to draw
strength from the observations made by learned Single Judge while
deciding the application under Order VII Rule 11 of the said Code
vide Order dated 11.12.2009 casting doubts on the validity of the
adoption and the appeal thereby having been withdrawn on
19.01.2010.
18. Learned counsel for respondents No. 1 to 4, on the other hand,
emphasized that the appellant was only one and a half months old
when he was adopted by respondent No. 5 and his wife in the
presence of relatives and other persons. The entire school records of
the appellant show that the appellant was the son of his adoptive
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parents and continued to reside with the adoptive parents in the same
house (this is not in dispute though it has been pleaded by respondent
No. 5 that the appellant continued to stay with the mother of
respondent No. 5, who was residing with him). The appellant is
alleged to have acquired the partnership business of his adoptive
mother and the appellant acknowledged, affirmed and reiterated, at
that stage, that he was the son of his adoptive parents. Respondent
No. 2 is stated to have filed a petition being OMP No. 192/2008
pleading that the appellant was the son of his adoptive parents and
the appellant was a party to those proceedings where this fact was
not disputed as no reply was filed by the appellant and the OMP was
disposed of on 24.04.2008. A similar plea was taken by respondent
No. 2 in a suit being CS (OS) No. 1707/2008 filed on the Original
Side of this Court where the appellant filed the written statement
without disputing the fact of being adopted.
19. Learned counsel for respondents No. 1 to 4 submitted that post-filing
of the present suit in question in the present appeal on, 11.12.2008
the appellant had filed the written statement in CS (OS) No.
1707/2008 on 06.11.2009 declaring himself to be the son of his
adoptive parents. Not only that, the appellant in his own handwriting
made a complaint to the SHO, P.S. Karol Bagh on 16.05.2011
declaring him to be the son of his adoptive parents with respondent
No. 1 alleged to be as his aunt and respondent No. 2 as his cousin
brother.
20. It was the submission of learned counsel for respondents No. 1 to 4
that the aforesaid conduct of the appellant pre and post-suit clearly
showed that the appellant was claiming to be the son of his adoptive
parents and, for the first time, the validity of the adoption was
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assailed in the replication contrary to various admissions made in
judicial proceedings or otherwise.
21. In law, it has been pleaded that there cannot be any reversion of
adoption in view of various legal pronouncements.
22. Learned counsel referred to the judgment in Daniraiji Vrajlalji
Junagadh v. Maharaj Vahuji Shri Chandraprabha, AIR 1975 SC 784
= (1975) 1 SCC 612 where it was held that any adoption would have
to be governed by the provisions of the said Act and it does not
envisage cancellation of a valid adoption. The customary law was
held to have been superseded by the statutory law as contained in
Chapter II of the said Act.
23. Learned counsel for respondents No. 1 to 4 pleaded that the
Adoption Deed has two distinct parts, i.e., firstly, the adoption and
secondly, the reversion. These two parts are clearly severable and
the fact that the second part is unenforceable in law in view of the
provisions of Sections 12 and 15 of the said Act, which negate the
adoption made and, thus, no reliance can be placed on the second
part.
24. To support his contention, learned counsel relied upon the judgment
in Shin Satellite Public Co. Ltd. v. Jain Studios Ltd., (2006) 2 SCC
628 where while dealing with the provisions of the Arbitration and
Conciliation Act, 1996 and keeping in view the doctrine of
severability, it was held that if the court holds the agreement
severable, it should implement and enforce that part which is legal,
valid and in consonance with law.
25. Learned counsel also relied upon the judgment in Tarsem Singh v.
Sukhminder Singh, (1998) 3 SCC 471. In the said case, it was held
that where the clause of any agreement is treated to constitute a
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separate and independent agreement, severable from the main
agreement, the same can be enforced separately and independently.
26. Learned counsel for respondents No. 1 to 4 emphasized that there
can be no injunction granted qua the estate which already stood
divided under a decree of a civil court more particularly when that
decree had not been assailed. Merely because the appellant has filed
a partition suit does not imply that he is entitled to interim relief,
unless the triple test is satisfied for grant of interim injunction.
27. In Baldev Raj v. Man Mohan, 92 (2001) DLT 274 (DB), a Division
Bench of this Court, of which one of us (Sanjay Kishan Kaul, J.) was
a member, held as under:
"7. The mere fact that a suit for partition is filed cannot
imply that an injunction must follow as a matter of course
in respect of the suit property. In deciding an interim
application under Order 39 Rules 1 and 2 read with Section
151, CPC, the three essential ingredients of existence
of prima facie case, balance of convenience and irreparable
loss and injury must be met before a plaintiff in the suit
becomes entitled to an interim order. The learned Single
Judge has, on the facts and circumstances of the case, not
found such a case for grant of an interim order. There
cannot be any hard and fast rule in this behalf and each case
will turn on its own facts for grant of injunction keeping in
mind the principles of the grant of such an injunction
order."
(emphasis supplied)
28. Insofar 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.
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29. We are of the view that in order to appreciate the rival 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 maintenance amongst Hindus. It, thus, superseded the
traditional Hindu law of adoption with its religious basis and
sacramental elements, which had earlier remained in force.
31. 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 in accordance with the provisions contained in
Chapter II thereof. An adoption made in 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 in Chapter II.
33. Section 7 deals with the capacity of a male Hindu to take in 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 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."
(emphasis supplied)
However, no particular methodology has been prescribed for
obtaining such a consent.
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34. Similarly, Section 9 of the said Act deals with persons capable of
giving in adoption, which again requires the consent of the wife.
The relevant portion of Section 9 reads as under:
"9. 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 (4), the
father or the mother, if alive, shall have equal right to give
a son or daughter in adoption:
Provided that such right shall not be exercised by 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)
35. Apart from specifying as to who is capable of taking in or giving in
adoption (Sections 7 to 9) and who can or is capable of being
adopted (Section 10), Section 11 prescribes other conditions of valid
adoption. Section 11(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 actually given and
taken in adoption by 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)
36. Section 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
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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."
37. Section 15 proscribes the cancellation of a valid adoption and reads
as under:
"15. Valid adoption not to be cancelled. - No adoption
which has been validly 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)
38. We may notice that under Section 16, there is a presumption as to
registered documents relating 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 being in force is produced before any
court purporting to record an adoption made and is signed
by the person giving and the person taking the child in
adoption, the court shall presume that the adoption has been
made in compliance with the provisions of this Act unless
and until it is disproved."
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39. The aforesaid Section only clarifies that there is a presumption that
the adoption has to be made in compliance with the provisions of the
said Act and if it is registered, the proof of giving in and taking 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.
40. Now, applying the aforesaid scheme of the said Act to the facts of
the present case, it is not in dispute that an Adoption Deed was
executed on 01.12.1984. It is also not in dispute that both the parents
giving in adoption and persons taking in adoption had the legal
capacity nor was the appellant suffering from any disability to be
given in 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 having 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 born from the
wedlock of the adoptive parents.
41. The requirements of consent of the mothers to the adoption again
cannot be disputed in 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 true that there is no particular method set
out for giving such consent. No doubt, in view of the judgment in
Ghisalal v. Dhapubai‟s case (supra), such a consent cannot be
presumed merely by presence at the time of adoption and the wife‟s
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silence or lack of protest on her part cannot give rise to an inference
that she has consented to adoption. However, in the present case, the
adoption was acted upon. It is not even in 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 born 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) contained in 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 continued to stay in 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 in that
house, it was so done. It is further not in dispute that the adoptive
parents‟ name continued to be reflected in all records qua the
appellant.
42. We may also notice that respondents No. 1 to 4 have given
illustrations of how pre and post-filing of the suit in question in the
present appeal, the appellant continued to show himself as the child
of his adoptive parents. Some of these illustrations are as under:
(i) The appellant acquiring partnership business of his adoptive
mother on 01.10.2007 and, at that stage, acknowledging,
affirming and reiterating that he was the son of his adoptive
parents.
(ii) The appellant choosing not to deny the allegation of his being
son of adoptive parents in OMP No. 192/2008 where he kept
silent and did not file any response.
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(iii) The appellant in his written statement to CS (OS) No.
1707/2008 filed by respondent No. 2 herein did not dispute
this fact.
(iv) The appellant, post-filing of the suit in question in the present
appeal, filed the written statement in CS (OS) No. 1707/2008
along with an affidavit duly sworn on oath declaring 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 cousin brother.
43. In Ghisalal v. Dhapubai‟s case (supra), while dealing with the aspect
of consent of the wife, it has been observed that it may be either in
writing or reflected by an affirmative or positive act voluntarily and
willingly done by her. No doubt, her presence cannot be a
presumption, but in the facts of the present case, there is affirmative
and positive acts both by the adoptive parents including the mother
and the appellant affirming to the adoption. The interesting part is
that even in the suit, the factum of having 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 infirmity in the plea of reversion of adoption and
thereafter seeks to assail the adoption in replication. The subsequent
facts, thus, establish that the appellant was given and taken in
adoption thereby meting the parameters of Section 11(vi) of the said
Act.
44. We may usefully refer to the observations of the learned Single
Judge (as he then was) of this Court in Anant Construction (P) Ltd.
v. Ram Niwas, 1994 IV AD (Delhi) 185 = 1994 (31) DRJ 205
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relying upon the observations of the Supreme Court in M.S.M.
Sharma v. Krishna Sharma, AIR 1959 SC 395, it was observed in
para 20 as under:
"20. A plea inconsistent with the case set out by the
plaintiff in the plaint can never be permitted to be raised in
replication. So also a plea in rejoinder cannot be
inconsistent with the case set out by the defendant in his
written statement. Any subsequent pleading inconsistent
with the original pleading shall be refused to be 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
pleadings are not substitute for amendment in the original 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 pleadings at variance or inconsistent with original
pleadings.
45. In view of the aforesaid discussion, we find no merit in the plea of
the appellant assailing the adoption.
46. The 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 interpreting these documents qua reversion would apply
only if the reversion of adoption in law is permissible. Such a
reversion post-valid adoption is clearly barred by Section 15 of the
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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.
47. The document evidencing adoption being the Adoption Deed dated
01.12.1984 itself does not become invalid, i.e., the adoption is valid,
but clause (2) contained in the said Adoption Deed would become
invalid being 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 (supra) and
Tarsem Singh‟s case (supra).
48. In Hindu Law of Adoption, Maintenance, Minority and Guardianship
(1970) by S.V. Gupte, it has been observed at page 323 that an
agreement providing that on the happening of an event, the adoption
shall be invalid 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!
49. Similarly, in Law of Adoption, Minority, Guardianship and Custody
(3rd 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 stipulating 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.
50. There is, thus, no merit even in the second plea.
51. We 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 interim injunction unless the triple test of prima facie case,
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balance of convenience and irreparable loss and injury is established.
We have already noticed hereinabove that the appellant has failed to
establish a prima facie case in view of the clear legal impediments.
52. The facts set out in the pleadings show that the estate of late
Amarjeet Singh, in fact, stands divided amongst the legal heirs and is
enjoyed by them separately post-severance. The only aspect pleaded
by the appellant in 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 Singh and his natural mother.
53. The other aspect emphasized by learned senior counsel for the
appellant was the findings arrived at by learned Single Judge in the
Order dated 11.12.2009 while deciding the application of
respondents No. 1 to 4 under Order VII Rule 11 of the said Code.
We find no force in this argument too because of two reasons.
Firstly, the parameters while deciding an application under Order VII
Rule 11 of the said Code are distinct from one deciding 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
plaint. The occasion to peruse the written statement did not even
arise nor the subsequent documents filed in support of the written
statement, as only the averments made in the plaint are germane and
the pleas taken by the defendant in the written statement would be
wholly irrelevant at that stage. (See Sopan Sukhdeo Sable v. Asstt.
Charity Commr., (2004) 3 SCC 137 and Saleem Bhai v. State of
Maharashtra, (2003) 1 SCC 557). Secondly, all that the learned
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Single Judge observed in 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 in 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 against the same
was withdrawn. Merely because a plaint cannot be rejected under
Order VII Rule 11 of the said Code will not imply that post-
completion of pleadings, the plaintiff would be entitled to interim
injunction. We, thus, find no merit even in this plea.
54. We are, thus, of the view that the appeal is completely meritless and
is accordingly dismissed with costs quantified at Rs.20,000/-.
55. Interim orders stand vacated.
56. Needless to say, any expression of views, as aforesaid, is only for
purposes of decision of the interim application and would not
prejudice the final decision in the suit post trial.
SANJAY KISHAN KAUL, J.
JANUARY 24, 2013 VIPIN SANGHI, J.
madan
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