Counsel seeks permission to approach the Diaz.
Much obliged.
I am appearing for the plaintiffs in this case
My lordship if I may take you through the facts of the case.
1. arjun and asha(who is the defendant No. 1 in the present case) were husband and
wife and they got married in the year 1977.
2. Defendant No. 1 gave birth to the plaintiff No. 2 i.e mala in the year 1978.
3. defendant No. 1 also gave birth to a male child in the year 1980. Due to an accident the
son died in a very young age.
4. subsequently defendant No. 1 gave birth to another male child who also died at a young
age.
5. in the year 1990 defendant No.1 gave birth to defendant No.2. due to the events which
occurred previously the couple approached an astrologer to seek his help and guidance.
6. it was adviced that their son should be given for adoption for his long life and same was
done.
7. defendant No. 2 was given in adoption to smt. Shanta devi who was the domestic help of
arjun and asha.
8. a formal ceremony was conducted for the adoptin and there was whole acceptance of the
child by smt. shanta
Devi.
9. In the year 1994 arjun and asha had another son whose was named as Arya i.e.,
plaintiff No. 2.
10. Arun died interstate in the year 2012.
11. Defendant No. 1 decided to divide the property in 4 equal shares.
12. Plaintiffs discarded the idea of giving a share to defendant No. 2 as they are the only
legal heirs of Arjun and Defendant No. 1 and defendant No. 1 was given away in adoption
and has no rights over their property.
13. It is the case of the plaintiffs that they are entirely entitled to partition, possession
and title of the suit schedule property.
If your lordships are well acquainted with the facts of the case,
I would seek permission to proceed further.
Issues involved in the case are:
1. Whether the plaintiffs prove that the defendant No. 2 is given in
adoption to Smt Shantha Devi by defendant No. 1 and her
husband?
2. Whether the plaintiffs prove that defendant No. 2 is not the heir of
defendant No. 1 and her husband to any property in absence of a
will?
3. Whether the plaintiffs prove that they have got 1/3rd share of the
property?
4. Whether the plaintiffs prove that the adoption was legal and
complete and take with a free will?
Counsel seeks permission to advance my arguments on the
merits of the case.
The following facts are not in dispute.
1. Relationship of the parties.
2. The property involved in the suit.
3. That Arjun died interstate.
4. Adoption of defendant no 2.
5. The death of 2 sons of defendant No. 1 and Arjun which resulted in giving
away defendant No. 2 in adoption to Smt Shantha Devi.
6. The adoption was of free will and was done according to Hindu Adoption
and maintenance Act.
Points for consideration
1. As per section 6 of the Hindu Adoption and Maintenance Act, 1956
reads as thus Read it from the act
All the condition are fulfilled.
2. There is no ambiguity in adoption in adoption made by defendant
No. 1 and Arjun.
3. Section 10 of the Act, defendant No. 1 and her husband have
followed it and fulfilled it. Read it from the act
4. Section 11 (i), (iii), (v), (vi)- Read it from the act
5. Section 12 b Read it from the act
6. Section 15 Read it from the act
7. Section 58 of the Indian evidence Act Read it from the act
Authorities Cited.
1. Case laws
Maroti Vithal Bhatwal v/s Manila Vikas Mondal Chandrapur, 2007
In this case the Hon’ble apex court considered the welfare of the child is prime importance in relating to
adoption as custody.
2. Chandra Shikhara Mudiliar v/s Kulandaivela Mudaliar, AIR 1963 SC 185
In this case supreme court held that the validity of a adoption has to be judged by spiritual rather than
temporal consideration and the dissolution of property is only secondary importance.
3. Bhola Charre v/s Man Malun Chambe, 1964
In this case Allahabad high court held the performance of ‘Datta Haman’ was not essential to the validity of
adoption under Section 11 of the act.
4. M. Vanaja v/s M. Sarala Devi sec 307 2020 AIR SC 1293
The mandate of 1956 act has put down the two conditions for approval for an adoption i.e., consent of the
wife and evidence substantiating adoption ceremony. However, the consent of the wife is a mandatory
gesture for proving adoption.
Jurisdiction
Cpc section 9 and section 2(a)
Prayer
Wherefore it is most respectfully prayed that this Hon’ble Court may be
pleased to pass judgment and decree as prayed for.
1. For grant of partition and separate possession of the 1/3rd share in the
share of suit schedule property.
2. To declare that the adoption given by defendant No. 1 and her husband to
Shantha Devi in respect of Defendant No. 2 is a valid adoption.
3. And allow the suit with costs and such other reliefs as this Hon’ble Court
deems fit in the circumstances of the case, in the interest of justice and equity.
Books:
CPC
Evidence Act
Hindu law text book
Hindu law bare act
