UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY

IN THE HON’BLE COURT OF

“ABC” CIVIL JUDGE, LUDHIANA

IN THE MATTER OF

CIVIL PLAINT NO. …./2013

ANANT …PLAINTIFF
V.

SOMWATI …DEFENDANT

ON SUBMISSION TO THE COURT OF THE CIVIL JUDGE, LUDHIANA

MEMORIAL ON BEHALF OF RESPONDENTS

SUBMITTED BY:

Srishti Sharma
B.A. LL.B. (Hons.)
Section-C
Roll No. 168/19
 UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY

TABLE OF CONTENTS

TABLE OF CONTENTS..............................................................................................................1

LIST OF ABBREVIATIONS.......................................................................................................2

INDEX OF AUTHORITIES.........................................................................................................3

STATEMENT OF JURISDICTION................................................................................................. 5

STATEMENT OF FACTS............................................................................................................6

ISSUES RAISED...........................................................................................................................7

SUMMARY OF ARGUMENTS...................................................................................................8

ARGUMENTS ADVANCED.......................................................................................................9

1. THAT THE ADOPTION OF ANANT IS NOT A VALID ADOPTION.............................9

Essentials of Valid Adoption are not fulfilled................................................................................... 9

/// PLAINTIFF FAILSTO DISCHARGE THE BURDENOF PROOF AND PRESUMPTION

AS TO ADOPTION DEED STANDS REBUTTED........................................................15

2. THAT THE GIFT DEED EXECUTED BY PRAKASH IN FAVOUR OF SOMWATI

IS NOT ILLEGAL AND VOID................................................................................................17

Adopted Person has No Locus Standi to Challenge.......................................................................17

Adopted Father Has Power to Alienate Whole of Property as A Gift Deed..................................19

PRAYER.......................................................................................................................................21

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSION

CPC Civil Procedure Code

Anr. Another

AIR All India Reporter

¶ Paragraph

Id. Ibid

& AND

V./ Vs. Versus

Ed. Edition

HAMA Hindu Adoption and Maintenance Act, 1956

Hon’ble Honorable

HAS Hindu Succession Act, 1956

BOM Bombay

M.P. Madhya Pradesh

Ori Orissa High Court

Ors. Others

P&H Punjab and Haryana High Court

Raj Rajasthan High Court

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

DL. Delhi

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INDEX OF AUTHORITIES

-INDIAN CASE LAWS-

1. Bal Gangadhar Tilak v. Srinivas Tilak, (1915) 17 BOMLR 527
2. Bhanu Pratap Singh v. State of Uttar Pradesh, 2021 All 19
3. Bhopal Singh v. Chatter Singh, AIR 2000 P&H 34
4. Commissioner Of Income Tax vs P.L. Karuppan Chettiar , 1992 197 ITR 646 SC
5. Commissioner of Wealth Tax v. Chander Sen , 1986 AIR 1753
6. Dal Bahadur Singh & Ors. v. Bijai Bahadur Singh & Ors., AIR 1930 PC 79
7. Dhanno v. Tuhi Ram, AIR 1996 P H 203
8. Dhanraj v. Suraj Bai, 1972 Raj LW 612
9. Ghisalal v. Dhapubai, (2011) 2 SCC 298
10. M. Vanaja v. S. Sarla Devi, 2020 SC 1293
11. Mangesh Janardan Pathakji v. Jaymangavri, 1951 SCC 557
12. Ravindra s/o Daulatrao Khandekar Vs. Udebhan s/o Shankarrao Khandekar 2020
(BombayHC Nagpur) Online 1045........................................................................................
13. Shrivallabhdas Modani v. Commissioner of Income-Tax , 138 I.T.R. 673
14. Smt. Chandan Bilasini vs Aftabuddin Khan & Ors, 1996 AIR 591
15. Soma Chatterjee v. Chapala Chatterjee and Ors., II (1990) DMC 312
16. Tara Chand vs Ram Avtar and Anr., AIR 1975 P H 20
17. Urmila v. Hemanta, 1993 Ori 213

-BOOKS-
1. Prof. Kusum, “Family Law Lectures: Family Law I,” (LexisNexis, New Delhi,
3rd Edition, 2011).
2. Dr. Paras Diwan, “Modern Hindu Law” (Allahabad Law agency, Faridabad, 25th edn,
2022)
3. Dr. Poonam Pradhan Saxena, “Family Law Lectures – Family Law II” (LexisNexis, New
Delhi, 4th edn, 2019)

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-STATUTES-
1. Code of Civil Procedure, 1908
2. Hindu Adoption and Maintenance Act, 1956
3. Hindu Succession Act, 1956

-LEGAL DATABASES-
1. www.manupatra.com
2. www. scconline.com
3. www.l awfinderlive.com
4. www.indiacode.nic.in

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STATEMENT OF JURISDICTION

The respondent humbly submits to the jurisdiction as invoked by the petitioners under the
provisions of read with Section 9 1 and Section 152 of Civil Procedure Code, 1908. At the same
time, the respondent reserves the right to rebut the same.

Hence, this memorandum sets forth the facts, contentions and arguments on which it is based.

1
Section–9. Courts to try all civil suits unless barred. - The Courts shall (subject to the provisions herein
contained) have jurisdiction to try all Suits of a civil nature excepting suits of which their cognizance is either
expressly or impliedly barred.
2
Section 15- Court in which suits to be instituted: Every suit shall be instituted in the Court of the
lowest grade competent to try it.

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STATEMENT OF FACTS

1. Prakash and Somwati were married in the year 1990 as per the Hindu religion. Tired of
conceiving a child for 5 years into the marriage, they both decided to adopt the son of
Prakash who was a friend of Ravi.
2. Anant a newly born boy was given in adoption by his natural father Ravi to Prakash in the
year 1995. Ceremonies like putting of tilak, distribution of sweets were performed along
with the execution of an adoption deed on 16 October, 1995 as per the Hindu Adoption and
maintenance Act, 1956. Somwati was silently present throughout the ceremonies of
adoption.
3. In the year 2000, Prakash inherited an ancestral manor situated in Ludhiana, from his father
upon his death and made a gift deed of the same in favour of his wife Somwati on 25 July
2001. Unfortunately, Prakash met with an accident on 20 December 2002 and succumbed
to death due to severe head injury on 26 December 2002.
4. Somwati further made a gift deed of the manor in favour of her brother Rakesh on 10
October, 2005.
5. The gift deed executed by Prakash was challenged by Anant on attaining majority in the
year 2013 as manor being an ancestral property. Somwati however pleaded for the
cancellation of adoption on the ground of it being void.
6. The Case is filed by Anant in the competent court of law situated in the State of Punjab for
its decision.

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ISSUES RAISED

- ISSUE I -

Whether the adoption of Anant is valid adoption?

- ISSUE II-

Whether the gift executed by Prakash in favour of Somwati is illegal and void?

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SUMMARY OF ARGUMENTS

1. THAT THE ADOPTION OF ANANT IS NOT VALID ADOPTION

It is most humbly submitted that the adoption of Anant is void because as per Sec 5 of the act,
no adoption is valid when it is made in contravention with provisions of the act. Sec 6 provides
for essential conditions to be fulfilled for valid adoption. One such condition is capacity and
right to adopt. For that matter, if a male Hindu wants to adopt and has a wife living, he must
obtain the consent of wife as adoption without consent will be void. In the present case, mere silent
presence of Somwati and not affirmatively taking part throughout the ceremonies cannot be
construed as her implied consent to adoption. Moreover, adoption deed could not prove the
factum of adoption. The presumption with respect to deed under sec. 16 cannot be raised as deed
is unregistered and also, it stands rebutted on the ground of lack of consent. Thus, the adoption is
not a valid one.

2. THAT THE GIFT DEED EXECUTED BY PRAKASH IN FAVOUR OF SOMWATI IS

NOT ILLEGAL AND VOID

It is submitted before the Hon’ble Court that according to Sec. 5 of HAMA when an adoption is
void, the legal status of adopted person remains unchanged and he does not acquire any right in
the adoptive family, especially he does not acquire any right in ancestral or self-acquired property
of adoptive father. On account of lack of consent of Somwati which results in not satisfying the
conditions of sec 6 and thus, adoption becomes void. As a consequence, Anant has no locus standi
to challenge the deed. Further, the rule of old Hindu law that ancestral property devolves as Karta
into the branch and not as an exclusive property is abrogated by the commencement of Hindu
Succession Act. HSA provides that on death of male Hindu dying intestate, property is inherited
as per intestate succession, i.e, it is inherited as separate property and in his individual capacity.
So, Prakash can use and dispose of the property in any way he wants. Thereupon, the gift deed so
executed cannot be challenged to be declared as illegal and void.

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ARGUMENTS ADVANCED

1 THAT THE ADOPTION OF ANANT IS NOT A VALID ADOPTION

1. It is humbly submitted before this hon’ble court that ///mere silent presence of the defendant, i.e,
Somwati throughout the adoption ceremonies cannot amount to consent given by her to her
husband for adoption. Whereby, consent of wife, if alive, is one of the essential requisites to
capacitate a male Hindu for taking in adoption which the plaintiff has failed to prove. Further,
presumption that adoption is made in compliance with all provisions of the Hindu Adoption and
Maintenance Act, 1956 (Hereinafter, referred to as HAMA, 1956) on the production of adoption
deed stands rebutted. Furthermore, burden of proof on the plaintiff to prove that he is adopted son
is not satisfied. Therefore, because of lack of consent, the adoption of the plaintiff, i.e, Anant is
not a valid adoption. The same shall be proved in the following manner:

ESSENTIALS OF VALID ADOPTION ARE NOT FULFILLED

2. Adoption is an elongated and procedural process by which a person who was born into one
family group gains new kinship links that are regarded by society and the law as being equal
to the congenital ties.3 These new ties entirely or partially replace the previous ones. The
famous jurist Mulla defined adoption as the admission of a stranger by birth to the rights of a
child through a legally recognized form of attachment. The son is then treated as if he were
born into the new family, and he gains the status, rights, and obligations of the new family,
severing his ties to the previous one.

3. As a legal notion, adoption was exclusively possible to those who belonged to the Hindu
community, unless other groups of people were allowed to adopt by customs or personal
rules. formally speaking, this also means that "Only Hindus were allowed to legally adopt
the children, and the other communities could only act as legal guardians of the children."

3
Prof. Kusum, “Family Law Lectures: Family Law I,” 321(LexisNexis, New Delhi, 3rd Edition, 2011).

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Adoption among Hindus is not only for the legalise the children but also it is a religious means
to make obligations and sacrifices which would permit the soul of the deceased father passing
from Hades to paradise.4

4. The Hindu Adoption and Maintenance Act, 1956 is primary statute governing the law of
adoption. The Act has no description of the word “Adoption” per se, but it is a Hindu law
derived from uncodified Hindu laws of Dharamsastra, specifically Manusmriti. Adoption has
been described in Manusmriti as ‘taking someone else’s son and raising him as one’s
own’.

5. From the legal point of view, “adoption is viewed as a transaction whereby the mutual rights
and responsibilities related to the child and belonging to the biological parents, are
permanently transferred to the adoptive parents.” Hindu Adoption and Maintenance Act has
made the definition of ‘adoption’ much wider by using the word ‘child’ instead of ‘son’. Child
includes both a girl and a boy child, and not merely a son.

6. The act provides a number of rules pertaining to a male or female Hindu's legal ability and right
to adopt a son or daughter who must be a "Hindu," a term to be defined in light of the broad
definition given to it in the act. It also covers the topics of those who may give in adoption and
those who may be adopted. It also specifies the kinds of ceremonies that must be performed for
the purpose of adoption. According to Section 5 of the Act, no adoption can take place after the
Act's implementation without complying with its provisions, and any subsequent adoptions are
void.
7. Section 6 of Hindu Adoptions and Maintenance Act, 1956 lays down the requisites of valid
adoption, as under:
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

4
Bal Gangadhar Tilak v. Srinivas Tilak, (1915) 17 BOMLR 527.

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iv. The adoption is made in compliance with the other conditions as mentioned.
In the instant case, all the requisites of section 6 are not fulfilled which is explained on the
following grounds:

The person adopting the plaintiff had no capacity to adopt

8. According to Section 7 of Hindu Adoptions and Maintenance Act, 1956, any male Hindu
who is of a sound mind and is not a minor has capacity to take a son or a daughter in
adoption. This is subjected to a condition that if he has a wife living, he shall adopt with the
consent of the 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.

9. A major Hindu male of sound mind can adopt, whether he is a bachelor, widower, divorcee,
or married man. But for a married Hindu male, it is obligatory to obtain the consent of wife.
Wife is a wife till divorce or death5. An adoption made without the consent of wife is void.

10. It was held by Bombay High Court in the case of Ravindra s/o Daulatrao Khandekar Vs.
Udebhan s/o Shankarrao Khandekar7 that by incorporating the requirement of wife’s

5
Bhanu Pratap Singh v. State of Uttar Pradesh, 2021 All 19.
6
Ravindra s/o Daulatrao Khandekar Vs. Udebhan s/o Shankarrao Khandekar 2020 (Bombay HC Nagpur) Online
1045.

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consent in the proviso to Section 7 and by conferring independent right upon a female Hindu
to adopt a child, Parliament has tried to achieve one of the facets of the goal of equality
enshrined in the Preamble and reflected in Article 14 read with Article 15 of the Constitution.
The consent of wife has been made a condition precedent for adoption by a male Hindu. The
mandatory requirement of the wife’s consent enables her to participate in the decision-making
process which vitally affects the family.

11. The consent of the wife maybe express or implied. In the landmark case of Ghisalal v.
Dhapubai8, the Hon’ble Apex court interpreted the term ‘consent’ used in proviso to Section
7 and the explanation appended to it. The court held that

“Keeping in view the legal position obtaining before enactment of the 1956 Act, the object of
the new legislation and apply the rule of purposive interpretation and if that is done, it would
be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should
either be in writing or reflected by an affirmative/positive act voluntarily and willingly done
by her. If the adoption by a Hindu male becomes subject matter of challenge before the Court,
the party supporting the adoption has to adduce evidence to prove that the same was done with
the consent of his wife. This can be done either by producing document evidencing her consent
in writing or by leading evidence to show that wife had actively participated in the ceremonies
of adoption with an affirmative mindset to support the action of the husband to take a son or a
daughter in adoption. The presence of wife as a spectator in the assembly of people who gather
at the place where the ceremonies of adoption are performed cannot be treated as her consent.
In other words, the Court cannot presume the consent of wife simply because she was present
at the time of adoption. The wife's silence or lack of protest on her part also cannot give rise
to an inference that she had consented to the adoption.”

7
Ghisalal v. Dhapubai, (2011) 2 SCC 298.

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12. 1. According to the factum, Somwati, the defendant, was present during the adoption
ceremonies but kept quiet. She didn't actively participate in the adoption ceremonies; she was
only there as a silent observer. She was not consulted or given any information prior to
adopting Anant, and neither had she; nor had she been a prominent participant in the adoption
ceremonies, received her consent or agreement. By no stretch of the imagination could this
be compared to her actively taking part in the adoption ceremonies so that the Courts could
assume she had consented to the adoption of Anant. The wife's simple silence cannot be
interpreted as approval for adoption.

13. Furthermore, because Somwati was not a signatory to the adoption deed or present at the
time the deed was executed, it cannot be said that she failed to challenge the gift deed.
Therefore, it cannot be assumed that Somwati knew the adoption deed was being executed
and purposely chose not to object to it. Therefore, lack of protest cannot be accounted as
consent.
14. It is, therefore, submitted that one of the very essential required for valid adoption, which is
capacity of person taking in adoption, is not fulfilled. Somwati’s mere presence or silence or
lack of protest cannot be considered to be her consent required under section 7 to capacitate
a male Hindu to adopt. Hence, the adoption of Anant is void owing to lack of requisites of
valid adoption.

The adoptive parent must be both capable of and legally authorized to adopt.

15. Section 6(1) of the HAMA, 1956 clearly states that the person adopting has the capacity as
well as the right to take in adoption. Just because a person has capacity to adopt, it is not
necessary that he has also the right to make an adoption, certain restrictive conditions exist
under Section 11 of the Act which required to be fulfilled for valid adoption.

16. Sec 11(i) provides that 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.

17. Sec 11(vi) provides for another restriction that the child to be adopted must be 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 a child
whose parentage is not known, from the place or family where it has been brought up] to the

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family of its adoption: Provided that the performance of dattahomam shall not be essential to
the validity of an adoption. For the validity of an adoption, performance of necessary
ceremonies is essential. 9 The ceremony of giving and taking is indispensable in modern Hindu
law.

18. Where any of the requirements as laid down under s.6 are not strictly observed, that
nonobservance of the requisite or requisites is enough to convert the adoption as invalid
one10. In the case of M. Vanaja v. S. Sarla Devi11, the Supreme court held that the mandate
of the Act of 1956 is that no adoption shall be valid unless it has been made in compliance
with the conditions mentioned in Chapter I of the Act of 1956. The two essential conditions
i.e., the consent of the wife and the actual ceremony of adoption, if not established, cannot
result in valid adoption.

19. In the view of above, the law becomes crystal clear that there cannot be valid adoption unless
the person adopting has both the capacity to adopt and right to adopt and also, fulfills all the
other conditions under section 11. In the instant case, Prakash and Somwati were married in
the year 1990 and could not conceive a child for 5 years into the marriage. So, at the time of
adoption of Anant in 1995, Prakash by whom the adoption is made, did not have any Hindu
son or son’s son or son’s son’s son living at that time. Further, various ceremonies like putting
of tilak, distribution of sweets were performed by the natural father and adoptive father.
Thereby, marking the actual ceremony of giving and taking. They, also executed an adoption
deed on 16 October, 1995.

20. However, it is humbly submitted that throughout the whole ceremonies of adoption, Somwati
was silently present there, more like a mute spectator. Moreover, she was not present at the
time of execution of adoption deed. Relying upon the judgement of Ghisalal v. Dhapubai12,
the wife’s silence cannot be construed as an inference that she has consented to adoption. Thus,
as per proviso appended to Section 7 of the Act, Prakash without the consent of his wife did

8
Urmila v. Hemanta, 1993 Ori 213.
9
Dhanraj v. Suraj Bai, 1972 Raj LW 612.
10
M. Vanaja v. S. Sarla Devi, 2020 SC 1293.
11
Supra Note 7.

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not have the capacity to take Anant in adoption and the adoption does not appear to be prima
facie valid in view of Section 6(1) of the Act even though he fulfilled conditions of section 11.

1.2 PLAINTIFF FAILS TO DISCHARGE THE BURDEN OF PROOF AND

PRESUMPTION AS TO ADOPTION DEED STANDS REBUTED

Neither under the old law nor under the modern Hindu law, registration of adoption
is obligatory, though parties are free to enter into a registered deed. Registration of
an adoptiondeed is not mandatory and there is no presumption in law against the
validity of an unregistered adoption. In absence of a registered deed, adoption must be
proved by cogent evidence. Section 16 of the Hindu Adoption and Maintenance Act,
1956 which lays down the rule of presumption which requires that when there is a
duly registered deed of adoption the court shall presume that the adoption has been
made in compliance of the provisions of the Act unless and until it is disposed. So,
registered document of adoption raises a presumption that the adoption has been
made in compliance with the provisions of the Act, and it would be presumed that
necessary ceremonies have been performed.

21. Registered deed of adoption is not a conclusive proof of adoption. It is corroborative evidence
that an adoption had taken place. The presumption raised by court under sec. 16 not irrebuttable
and the court may refuse to accept an alleged adoption as legal despite it being registered if
there is evidence of circumstances indicating that there was no valid adoption13. The
presumption may be rebutted by the person challenging the adoption.

22. Further, the court observed in the case of Dhanno v. Tuhi Ram14 that the evidence in support
of adoption must be sufficient to satisfy the heavy burden that rests upon any person who seeks
to displace the natural succession by alleging the adoption. It is settled canon of law that equity
follows the law. Equity would tilt in favour of law and not against violation thereof. To claim
equity, the petitioner must explain previous conduct15.

12
Smt. Chandan Bilasini vs Aftabuddin Khan & Ors, 1996 AIR 591.
13
Dhanno v. Tuhi Ram, AIR 1996 P H 203.
14
Bhopal Singh v. Chatter Singh, AIR 2000 P&H 34.

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23. In the case of Dal Bahadur Singh & Ors. v. Bijai Bahadur Singh & Ors.16, the Privy Council held
that in order to establish the onus, the proof must be subjected to a strict and almost severe
examination. The longer the period of time between the grant of the power and the time when it
is to be examined, the more important it is to ensure that the evidence is sufficient due to the
fallibility of human memory and the uncertainty of evidence provided after.

24. In the present case, the facts clearly state that there is execution of adoption deed17 and does
not provide any information regarding its registration. In such a case, presumption cannot be
raised under section 16 that adoption of Anant is with due compliance of the provisions of the
act. The plaintiff has to prove by adducing sufficient evidence. There was no valid adoption as
Somwati, wife of the adoptive father did not give her consent to the adoption, which makes
execution of deed void. Then the Section of 16 would not be attracted18 as it is not an adoption
in accordance with law and presumption stands rebutted. Moreover, the plaintiff fails to
discharge its burden of proof as mere silence cannot be considered as implied consent unless
Somwati actively participated in ceremonies of adoption.

15
Dal Bahadur Singh & Ors. v. Bijai Bahadur Singh & Ors., AIR 1930 PC 79.
16
Para 2, Moot Proposition.
17
Soma Chatterjee v. Chapala Chatterjee and Ors., II (1990) DMC 312.

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3. THAT THE GIFT DEED EXECUTED BY PRAKASH IN FAVOUR OF

SOMWATI IS NOT ILLEGAL AND VOID

25. It is humbly submitted that the gift deed executed by Prakash with regards to whole of inherited
ancestral property is valid and not illegal and void as adoption of Anant is void due to non-
fulfillment of condition under sec. 6 of HAMA, 1956. As per section 5, when adoption is void,
the alleged adopted person creates no right in the adopted family and his status remains
unchanged. Further, under modern Hindu law, with the commencement of Hindu Succession
Act, 1956, (hereinafter, referred to as HSA, 1956) the ancestral manor so inherited devolves
onto Prakash in individual capacity and does not go to his branch. Thereby, Anant has no right
in the ancestral property and Prakash can use and dispose of the property in any way. This is
proved in the following two-fold manner:

ADOPTED PERSON HAS NO LOCUS STANDI TO CHALLENGE

26. No adoption by or to a Hindu shall be made after the commencement of this Act except in
accordance with the provisions contained in this Chapter, and any adoption made in
violation of the foregoing provisions shall be null and void, according to Section 5 of
HAMA, 1956. According to subsection (2), an invalid adoption neither confers any rights on
a person in the adoptive family that person could not have gotten without the adoption nor
revokes any rights that person might have had in his or her birth family.

27. Section 5 which regulates adoptions clearly refers to adoptions made after the commencement
of the Act19. In the case of Mangesh Janardan Pathakji v. Jaymangavri20, the Hon’ble court
held that:
“Hindu law of adoption has been codified in the Hindu Adoptions and Maintenance Act, 1956
(‘Act'). Therefore, an adoption has to be made in accordance with the provisions of the Act.
Any adoption made in contravention of the said provisions shall be void. But adoption made
before 1956 according to prior Hindu Law, are valid under Section 5 of the Act. As per the

18
Tara Chand vs Ram Avtar and Anr., AIR 1975 P H 20.
19
Mangesh Janardan Pathakji v. Jaymangavri20, 1951 SCC 557.

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Act, an adoption is either valid or void, and there is no voidable or invalid adoption. It cannot
be also partly valid and partly void. A void adoption brings about no legal change in the status
of the adopted person. The adopted child does not acquire any right in the adoptive family.
Likewise, the child's rights in the natural family are not lost. After adoption, suppose the
natural father alienates family property. If the adoption is valid, the alienation cannot be
impeached by the adopted child. If the adoption is void, the adopted child can attack alienation
as not binding on him/her.”

28. In the present case, Somwati was merely present throughout the ceremonies. She did not give
her express consent to adoption nor she voluntarily actively participated in the ceremony which
can be interpreted as implied consent gathered from the circumstances. Moreover, at the time
of execution of adoption deed, neither she was present nor her consent was taken. So, Prakash
has clearly failed to fulfil the requirements of Sec.6 , i.e, taking consent of the wife, if alive,
before the adoption even though he was able to adhere to other valid conditions like ceremony
of giving and taking, absence of Hindu son or son’s son or son’s son’s son at the time of
adoption. In absence of consent, he did not had the capacity to adopt and also, executing the
deed without the capacity makes deed void, thereby not being able to prove the factum of
adoption. This stands in clear contravention to the provisions of the HAMA, 1956 which
establishes that the adoption of Anant is void.

29. As a consequence of void adoption, the status of adopted son is not conferred on Anant and
does not acquire any right, especially in the property, in the adoptive family. Thereupon, he
has no locus standi to challenge the gift deed executed in favour of Somwati. He cannot
claim his share in ancestral manor situated in Ludhiana which was inherited by Prakash from
his father upon his death and in addition to this, he cannot question the alienation of the
property being done by Prakash on 25th July, 2001. Further, another gift deed executed by
Somwati in favour of her brother Rakesh on 10 th October, 2005 can also not be challenged
and declared void.

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ADOPTED FATHER HAS POWER TO ALIENATE WHOLE OF PROPERTY AS AGIFT

DEED
30. In the case of Shrivallabhdas Modani v. Commissioner of Income-Tax21, the Madhya
Pradesh High Court held that section 8 of the Hindu Succession Act should be taken as a self-
contained provision lying down the scheme of devolution of the property of a Hindu dying
intestate. The schedule classified the heirs on whom such property should devolve. Those
specified in class I took simultaneously to the exclusion of all other heirs. A son's son was not
mentioned as an heir under class I of the schedule, and, therefore, he could not get any right in
the property of his grandfather under the provision. The right of a son's son in his grandfather's
property during the lifetime of his father which existed under the Hindu law as in force before
the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu
law giving a right by birth in such property "ceased to have effect". The Court further observed
that in construing a Codification Act, the law which was in a force earlier should be ignored
and the construction should be confined to the language used in the new Act. Therefore, the
property which devolved on a Hindu on the death of his father intestate after the coming into
force of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his
own branch including his sons.

31. Further, in the case of Commissioner of Wealth Tax v. Chander Sen22, the Apex court that
section 8 indicates the heirs in respect of certain property and class I of the heirs includes the
son but not the grandson. It includes, however, the son of the predeceased son. Under section
8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on
his son in his individual capacity and not as karta of his own family. Furthermore, this position
was reaffirmed in Commissioner Of Income Tax vs P.L. Karuppan Chettiar23.

32. A perusal of the HSA, 1956 would disclose that Parliament wanted to make a clean break
from the old Hindu law in certain respects consistent with modern and egalitarian concepts.
Son, son’s son and son’s son’s son were made coparceners on the basis of spiritual benefit,

20
Shrivallabhdas Modani v. Commissioner of Income-Tax , 138 I.T.R. 673.
21
Commissioner of Wealth Tax v. Chander Sen , 1986 AIR 1753.
22
Commissioner Of Income Tax vs P.L. Karuppan Chettiar , 1992 197 ITR 646 SC.

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 UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY

which has been replaced by HSA, 1956 by affinity, i.e, nearness of relationships. Thereby,
Son, son’s son and son’s son’s son will not get any share in father’s property.

33. The whole scheme of HSA clearly shows the intention of legislature to usher in equality as it
is not in the interest of justice that wife and daughters are taking their full share whereas the
son has to share his share with three generations. If the son was to share his share, it would be
against the principles of equality which means that there will be two types of heirs: a) Heirs
with complete access of share b) Heirs with partial access of share.

34. In the ancient Hindu law, a coparcener could never have the complete ownership of his share
unless he is a sole surviving coparcener. He would inherit the property as Karta of the
branch, his equal right to other three generations and he would never inherit in his individual
capacity. The codified law of HSA, 1956 clearly envisages that each heir gets his property in
his individual right and not as representative of his male issues. He acquired the property as
his exclusive property with no restraints and he can alienate that property in whatever way he
wills. The basic concept of old Hindu law that a son always acquires ancestral property as
Karta of his branch and property belongs not to him alone but the entire branch, stands
abrogated.

35. Relying upon the above mentioned judgements, it is contended that when Prakash inherited his
ancestral house upon death of his father in 2000, he inherited it in his individual capacity and
as a separate property. So, even when Anant, the adopted son, acquires right in the property
from the date of adoption, it has ceased to have effect as property does not devolve onto branch
but by intestate succession. Consequently, Prakash can use and dispose of the property so
inherited in any way he wills. Thus, he has the power to alienate the whole of property and the
gift deed executed by him in favour of Somwati on 25 th July, 2001 is valid and not illegal and
void.

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 UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY

PRAYER

WHEREFORE, IN THE LIGHT OF FACTS MENTIONED, ARGUMENTS ADVANCED, AND AUTHORITIES

CITED, IT IS MOST HUMBLY PRAYED AND IMPLORED BEFORE THE HON’BLE CIVIL COURT OF
LUDHIANA, THAT IT MAY BE GRACIOUSLY PLEASED TO ADJUDICATE AND DECLARE THAT:

I. The adoption of Anant is void adoption as it contravenes the provisions of Hindu

Adoption and Maintenance Act, 1956
II. The gift deed executed by Prakash with regards to whole of the inherited ancestral
manor in the favour of Somwati is valid and not illegal.

AND ANY OTHER RELIEF THAT THE HON’BLE COURT MAY BE PLEASED TO GRANT IN THE

INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

For this act of Kindness, The Respondents shall duty bound forever pray.

All of which is humbly submitted.

Sd/-

~COUNSELS ON BEHALF OF THE RESPONDENT~

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