Smt. Urmila Dei v.

Hemanta Kumar Mohanta 1

2

IN THE HON’BLE

SUPEREME COURT OF INDIA

IN THE PROCEEDING BETWEEN

Smt. Urmila Dei

(Appellant)

VERSUS

Hemanta Kumar Mohanta

(Respondent)

MOST RESPECTFULLY SUBMITTED

Memorandum on behalf of the

Respondent

Hemanta Kumar Mohanta

(Shantanu Vaishnav)
(COUNSEL APPEARING ON BEHALF OF RESPONDENT)
ROLL NO.-142 SECTION-B SEM: III
DATE OF SUBMMISSION- 25/10/2018

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

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Table of Contents

1. List of Abbreviations……………………………………………………01

2. List of Authorities

Statutes………………………………………………………….02

Case Laws……………………………………………………….02

Books Referred………………………………………………….02

Websites…………………………………………………………03

Dictionaries………………………………………………………03

3. Statement of Jurisdiction………………………………………………….04

4. Statement of Facts……………………………………………………........05

5. Issues Raised……………………………………………………………….09

6. Summary of Arguments……………………………………………………10

7. Advanced Arguments………………………………………………………11

8. Prayer for Relief…………………………………………………………….16

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List of Abbreviations

1. AC Appeal Cases

2. AIR All India Reporter

3. Anr. Another

4. Art. Article

5. V. Verses

6. P. Page no

7. ed. Edition

8. HC High Court

9. H.L House of Lords

10. Hon’ble Honorable

11. Id. Ibidum

12. LJ Law Journal

13. L Ors. Others

14. p. page

15. Pvt. Private

16. Rs. Rupees

17. WWW World Wide Web

18. Ltd. Limited

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List of Authorities

Statutes and Other Authorities

1. Section 11, Hindu Adoption and Maintenance Act, 1956

2. The Constitution of India

Cases

Books Referred

 Modern Hindu Law (1983) edition page 110;

 rd
Paras Diwan, Law of Marriage and Divorce, 3 ed. 1999, p.98.th

 Kumud Desai, Indian Law of Marriage & Divorce, 8 ed.,

 Lexis Nexis Butterworths Wadhwa, Nagpur, p. 37.nd

 Herbert Cowell, The Hindu Law, 2 ed., R. Cambray & Co.

 Private Ltd., Kolkata, p.376.th

 V.N. Shukla, Constitution of India, 11 ed., Eastern Book Company,Lucknow, p.191

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Websites

1. www.manupatra.com
2. www.scconline.com
3. www.lexisnexis.com
4. www.indiakanoon.org
5. www.legalserviceindia.com
6. www.thebluebook.com
7. www.indianlawcases.com
8. www.westlaw.com
9. lawlex.org
10. www.lawtimesjournal.in

Dictionaries
Black’s Law Dictionary, 9th Edition, West Group Publications, 2002
The Concise Oxford English Dictionary, Oxford University Press (10th Edn. 1999

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Statement of Facts

1. Defendants 11 and 12 have preferred this appeal against the judgment of the learned single
Judge in First Appeal No. 236 of 1978 in a suit for partition.

2. The mother of defendants 11 and 12, Sashi Bewa, had filed the suit for partition claiming one-
fifth share in item Nos. I to VII of Schedule-B excluding Schedule-C and half share in item No.
II of Schedule-D and item No. III of Schedule-E. The plaintiff's case, in brief, is that the common
ancestor Hadiram had six sons of whom Pruthunath died unmarried. The other sons are
Baidyanath, Sankar, Manilal, Dussasan and Bholanath. Baidyanath died in the year
1975 leaving behind 4 sons through his first wife who are defendants 1 to 4 and a daughter who
is defendant No. 7 and his second wife Purna is defendant No. 6 and through his second wife, he
had a son who is defendant No. 5. Sankar died in the year 1954 leaving his widow Shasi, the
plaintiff and they had two daughters who are defendants 11 and 12. The other sons of Hadiram
are defendants 8, 9 and 10. The further case of the plaintiff is that sons of Hadiram
lived jointly and had extensive ancestral properties and out of the surplus of the said joint
family property, several other properties were acquired which are described in
Schedule-B of the plaint. Even after the death of Hadiram, item Nos. I, II, III and IV of
Schedule-B were jointly recorded in the names of his sons. Baidyanath who was acting as Karta
of the joint family purchased item No. V of Schedule-B in his own name though it was
purchased out of the joint family funds and, therefore, acquired joint family character. Item Nos.
VI and VII of Schedule-B were the exchanged properties of the Joint Family in lieu of joint
family lands described in Schedule-C and these two items of properties though stand
recorded in the name of Baidyanath but are the joint family properties. It is the further case that
Sankar out of his own income had acquired item No. I of Schedule-D which he possessed as his
self-acquisition and Sankar with Bholanath (defendant No. 9) had together acquired item No.
II of Schedule-D which they owned as their exclusive property. On account of increase in the
number of family members, Baidyanath and his brothers have been living separately and also are
possessing different parcels of land for the sake of convenience even though there has been no
partition. Plaintiff was also similarly possessing some lands in Schedule-B, but defendant No. 4
has been creating trouble over the plaintiff's possession and, therefore, the plaintiff filed the suit
for partition claiming the shares as already indicated.

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3. Defendant No. 4 contested the suit by filing a written statement and alleging therein that he was
taken in adoption by Sankar and the plaintiff and, therefore, he has a share in Sankar's interest. It
was his further case that after the partition between the brothers of Baidyanath, Sankar and
Bholanath had jointly acquired some properties which they also partitioned among themselves.
The initial partition in the family took place 40 years back and even on death of Pruthunath his
share also was again partitioned amongst the five brothers. The allegation that the plaintiff was
possessing some land for convenience was denied. It was also stated that the share claimed by the
plaintiff is wrong and the plaintiff would be entitled to half share in the interest of Sankar and the
other half would go to defendant No. 4. It was also urged that on death of Hadiram all his sons
having separated both in mess and property forty years back and having possessed their respective
shares of property, a fresh suit for partition will not lie. So far as the adoption of defendant No. 4
is concerned, it was pleaded that Sankar having no son adopted defendant No. 4 when he was
only 21 days’ old and this adoption ceremony took place in the presence of local gentlemen
and relations and since then defendant No, 4 has been residing with Sankar and after his death
has inherited his property and further in the partition amongst the sons of Baidyanath, no
share has been given to defendant No. 4 in view of his adoption by Sankar.

4. Defendant No. 8 filed a separate written statement supporting the stand of the plaintiff.

5. Defendants 1, 2, 3 and 10 also filed a joint written statement supporting the stand of
defendant No. 4.

6. On these pleadings, the learned trial Judge framed 7 issues of which issue No. 3 is the most
important issue, namely whether defendant No. 4 had been taken in adoption by Sankar? On
consideration of the evidence on record, the learned trial Judge concluded that defendant No. 4
was not adopted by the plaintiff and Sankar. On issue No. 2, he came to hold that there was no
partition amongst Baidyanath and his brothers as alleged by the defendants. Issues Nos. 1, 4 and
6 were not pressed. On issues Nos. 6 and 7, he held that the plaintiff along with her daughters
(defendants 11 and 12) are entitled to one-fifth share which is the share of Sankar in the
properties mentioned in Schedule-B of the plaint; defendants 1 to 7 together are entitled to
one-fifth share; defendants 8 and 10 are entitled to one-fifth share each and defendants
9(a) to 9(f) together are entitled to one-fifth share in the Schedule-B properties. It was
further held that the plaintiff is entitled to half share in item No. II of Schedule-D and
item No. III of Schedule-E of the plaint and the other half of item No. II of Schedule-D shall go
to defendant Nos. 9(a) to 9(f) and the entire item No. 1 of Schedule-D is the self-acquisition of
Sankar and, therefore, the plaintiff would be entitled to the same and lastly, half of item No. III
of Schedule-E shall go to Bholanath's branch. On these findings, the learned trial Judge having

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decreed the plaintiff's suit, defendant No. 4 carried the matter in appeal which was registered as
First Appeal No. 236 of 1978.

7. In the First Appeal, defendant No. 4 did not challenge any of the findings of the trial Judge
excepting the finding on the question of adoption and it was urged that the learned trial Judge
illegally came to hold that defendant No. 4 had not been taken in adoption by Sankar and his
wife, the plaintiff. On consideration of the materials placed before him and on re-appreciating the
evidence, the learned single Judge disagreed with the learned trial Judge and held that
defendant No. 4 was taken in adoption by Sankar and plaintiff and would, therefore, be
entitled to a share in Sankar's interest. The appeal having been allowed by the learned single
Judge with the aforesaid finding, the present A.H.O. has been preferred by defendants 11 and 12
who are the daughters of the plaintiff and plaintiff having died, there being no other legal heir,
they represent the plaintiff.

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Issues
Raised

The following questions are presented before the court in the instant matter –

1. whether defendant No. 4 had been taken in adoption by Sankar?

2. Whether Defendant NO. 4 has a share in Sankar’s Interest?

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Summary of the Arguments

1. Is Defendant Number 04 is validly adopted by Shankar?

In the present case it is evident by the fact that there has been performance of adoption ceremony
between Natural father of defendant no 4 and his adoptive father. This argument is well supported by
the statement submitted by defendant No. 4 that when he was only 21 days' old and his adoption
ceremony took place in the presence of local gentlemen and relations and since then defendant No, 4
has been residing with Sankar and after his death has inherited his property and further in the partition
amongst the sons of Baidyanath, no share has been given to defendant No. 4 in view of his adoption
by Sankar.

2. Whether Defendant NO. 4 has a share in Sankar’s Interest?

According to Section 8 of the Hindu Succession Act, 1956, the father’s assets would devolve upon his
Class I heirs. Class 1 heirs include a son; a daughter; a widow; a mother; a son of a pre-deceased son;
a daughter of a pre-deceased son; a son of a pre-deceased daughter; a daughter of a pre-deceased
daughter; a widow of a pre-deceased son; a son of a pre-deceased son of a pre- deceased son; a
daughter of a pre-deceased son of a pre-deceased son; a widow of a pre-deceased son of a pre-
deceased son.

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Written pleadings

1. Is Defendant Number 04 is validly adopted by Shankar?

It is humbly submitted before the hon’ble court that in the present case there has been adoption of
defendant no 4 and it is evident by the fact that i) all the essential conditions of valid adoption are
satisfied and ii) there has been a giving and taking ceremony which is necessary for the adoption to be
valid.

i) all the essential conditions of valid adoption are satisfied

The essential conditions for valid adoption are enshrined in section 10 and section 11 of the HAMA,
1956

Section 10 in The Hindu Adoptions and Maintenance Act, 1956 states that

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 a 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.

In the present case also, the defendant no 4 was a Hindu and he was adopted according to the provisions
of this section. He was neither adopted before this and he was not married to anyone and he was only
21 days old when he was adopted by his adoptive parents so all the requisites given in section 10 of the
HAMA, 1956 are done validly.

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Further, Section 11 in The Hindu Adoptions and Maintenance Act, 1956 states that

Other conditions for a valid adoption. —In every adoption, the following conditions must be
complied with: —
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is
made must not have a Hindu son, son's son or son's son's son (whether by legitimate
blood relationship or by adoption) living at the time of adoption;

(ii) if the adoption is by a male and the person to be adopted is a female, the adoptive
father is at least twenty-one years older than the person to be adopted;
(iii) if the adoption is by a female and the person to be adopted is a male, the adoptive
mother is at least twenty-one years older than the person to be adopt
(iv) …………………………………..
(v) ……………………………………
(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 1 [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 its adoption:

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Hence, the defendant No.4 could be validly adopted by Sankar and his wife sasi.

ii) there has been a giving and taking ceremony which is necessary for the adoption to be valid.

It is humbly contended that in the present case there was no formal giving and taking ceremony but the
son was handed over to the adoptive parents by the natural parent which in itself shows that there was a
valid adoption of the defendant no4 by Sankar and Sasi because, in the case of Lakshman Singh
Kothari v. Smt. Rup Kanwar, AIR 1961 SC 1378, their Lordships of the Supreme Court held at Page
1381: -

"Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be
a valid adoption unless the adoptive boy is transferred from one family to another and that can
be done only by the ceremony of giving and taking. The object of the corporeal giving and
receiving in adoption is to secure due publicity. To achieve this object, it is essential to have a
formal ceremony. No particular form is prescribed for the ceremony, but the law requires that
the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him.
The nature of the ceremony may vary depending upon the circumstances of each case. But a
ceremony there shall be, and giving and taking shall be part of it. The exigencies of the
situation arising out of diverse circumstances necessitated the introduction of the doctrine of
delegation; and, therefore, the parents, after exercising their volition to give and take the boy in
adoption, may both or either of them delegate the physical act of handing over the boy or
receiving him, as the case may be, to a third party. ........"

(quoted from the headnote) In Mayna's Hindu Law (11th Edn. at p. 237), it has been stated:

"The giving and receiving arc absolutely necessary to the validity of an adoption. They are the
operative part of the ceremony, being that part of it which transfers the boy from one family
into another. But the Hindu Law does not require that there shall be any particular form so far
as giving and acceptance are concerned. For a valid adoption, all that the law requires is that
the natural father shall be asked by the adoptive parent to give his son in adoption, and that the
boy shall be handed over and taken for this purpose."

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In the present case the learned single Judge relied upon the evidence of D.Ws. 3 and 5 and came to hold
that there was a giving and taking ceremony and the natural father of defendant No. 4 gave him to
Sankar and his wife when defendant No. 4 was only 21 days' old and his mother had died. Further,
D.W. 3 in his evidence-in-chief has stated that he was present at the time of Sankar taking defendant
No. 4 in adoption and Baidyanath giving the baby (defendant No. 4) to Sankar and said he better
adopted the baby as his son and Sankar accepted the baby and gave the baby to his wife.

Coming to the next witness, namely D.W. 5, he also stated in his evidence-in-chief that Baidyanath said
to Sankar that he gifted away the baby to him and Sankar accepted the baby saying that he took the
baby as his adopted son and thereafter Sankar and his wife came to their house with the baby and since
then defendant No. 4 is staying in the house of Sankar.

All of these evidences clearly show that there was a giving and taking ceremony of the defendant no 4
between his natural parents and adoptive parents respectively. This has been further supported by
defendants 1, 2, 3 and 10 in their joint written statement supporting the stand of defendant No. 4.

Further, the learned single Judge had relied upon the entry in the Voters' List which clearly indicates
that defendant No. 4 was adopted son of Sankar and Sasi.

Hence, the defendant no4 was validly given and taken in adoption by his natural parents and Sankar and
his wife respectively.

iii) Burden of proof in the instant case lies on the plaintiff

It is humbly contended that an adoption is to be proved like any other fact1. But in the case of old
adoptions, presumption of validity arises2. In the absence of a registered adoption deed. adoption must
be proved by some cogent evidence3. But the absence of registered deed does not simply nullify the
adoption4. Evidence of relevant witnesses is enough. It is not necessary that everyone who is present at
the time of adoption should be examined5.

1
Sauney v. Duli devi, 1985 Ori 111
2
Modern Hindu law by, Paras Diwan, 22nd edition
3
Rahasa V. Gukulnanda, 1987 SC 962
4
Chandrarani V. Pradeep, 1991 MP 286
5
Chandan V. Aftabaudin, 1996 SC 591

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Further in the case of L. Debi Prasad v. Smt. Tribeni Devi, AIR 1970 SC 1286, the SC observed: -

"In the case of all old transactions, it is but natural that positive oral evidence will be lacking.
Passage of time gradually wipes out such evidence. Human affairs often have to be judged on
the basis of probabilities. Rendering of justice will become impossible if a particular mode of
proof is insisted upon under all circumstances. In judging whether an adoption pleaded has
been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of
the alleged adoption and the date on which the concerned party is required to adduce believes it
to exist or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists. Hence if after
taking an overall view of the evidence adduced in the case, we are satisfied that the adoption
pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the
contrary, that it is a valid adoption as well. “proof. In the case of an adoption said to have
taken place years before the same is questioned, the most important evidence is likely to be that
the alleged adoptive father held out the person claiming to have been adopted as his son; the
latter treated the former as his father and their relations and friends treated them as father and
son. There is no predetermined way of proving any fact. A fact is said to have been proved
where after considering the matters before it, the Court either believes it to exist or considers its
existence so probable that a prudent man ought, under the circumstances of the particular case,
to act upon the supposition that it exists. Hence if after taking an overall view of the evidence
adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily
proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption
as well."

Hence, in the present case the evidences such as the oral testimony of the defense witnesses 3 and 5, the
joint statement of defendant no 1, 2, 3 and 10 and the voter entry are valid evidences which clearly
indicate that defendant no4 was adopted by Sankar. And further as in the present case the adoption was
old and in accordance with the above authorities and evidences there is a presumption in favor of a
valid adoption and hence in order to dispute this the burden of proof lies on the plaintiff and not on the
defendant.

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2. Whether Defendant NO. 4 has a share in Sankar’s Interest?

1. In the present case the child has been legally adopted by the adoptive parents performing
all the requisites of a valid adoption as provided in HAMA,1956 and hence making the
adoption legal, he would be considered a Class 1 heir and would be entitled to a share in
property

The Hindu Succession Act, 1956: -

8. General rules of succession in the case of males. —The property of a male Hindu dying intestate
shall devolve according to the provisions of this Chapter—

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of
the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.

Although the expression “son” is not defined under the Hindu Succession Act 1956, it would include
both a natural son as well as a son adopted in accordance with the law relating to adoption among
Hindus in force at the time of adoption. This is because as per Section 12 of the Hindu Adoption and
Maintenance Act, 1956, a legally adopted child is deemed to be the child of his or her adoptive father
or mother for all purposes with effect from the date of the adoption and 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, from the date of adoption. Since you have stated that your brother was legally
adopted by your parents, he would also be considered to be a Class 1 heir and would be entitled to a
share in your father’s property.

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Prayer for Relief

In the light of the issues raised, arguments advanced and authorities cited, the Counsel for
the Appellant humbly pray before this Hon’ble Court to;

1. Kindly Upheld the order of Single Bench of Orissa High Court

2.

And/or pass any other order in favor of the Respondent that it may deem fit in the light
of justice, equity, and good conscience. All of which is most humbly prayed.

Place: New Delhi COUNSEL ON BEHALF OF RESPONDENT

Date: October 25th, 2018 Shantanu Vaishnav

Sem-III, Sec-B, Roll No.-139

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