* % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
8. h January, 2019. CS(OS) 235/2018 AISHANI CHANDNA MEHRA ..... Plaintiff Through: Mr. Aman Nandrajog and Mr. Sumeer Sodhi, Advs. Versus RAJESH CHANDNA & ORS ..... Defendants Through: Mr. Shikhil Suri, Mr. Shiv Kumar Suri and Ms. Vinishma Kant, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW IA No.12875/2018 (of the defendant no.1 u/O VII R-11 CPC) 1. The plaintiff has instituted this suit seeking partition of property No.296, Block No.D, Defence Colony, New Delhi - 110 024, monies and gold & jewellery of one Rita Chandna who is claimed to have died intestate at Delhi on 14th April, 2018, pleading that (i) the three defendants are the living son, daughter and husband of the said Rita Chandna; (ii) Rita Chandna, besides the living son and daughter impleaded as defendants herein, also had a son Rakesh Chandna who pre-deceased Rita Chandna; (iii) the plaintiff is the daughter of the said Rakesh Chandna and granddaughter of Rita Chandna; (iv) Rakesh Chandna was married to Shilpi Mehra, mother of the plaintiff and of which marriage the plaintiff and her brother Sukrit Mehra were born; (v) the mother of the plaintiff, after the demise in the year 2000 of Rakesh Chandna, in the year 2004 re-married one Sunil Mehra; and, (vi) the plaintiff and her brother Sukrit Mehra were adopted by the said Sunil Mehra; however the said adoption of the plaintiff is null and void ab-initio being contrary to the provisions and essential conditions of adoption as CS(OS) 235/2018 Page 1 of 17 prescribed in Section 11 of the Hindu Adoptions and Maintenance Act, 1956 because Sunil Mehra, prior to the adoption of plaintiff, already had a Hindu daughter namely Shraddha Mehra, aged 20 years out of his earlier marriage.
2. The suit was entertained and vide ad interim order dated 20th September, 2018 status quo directed to be maintained with respect to the estate of Rita Chandna as disclosed in the plaint.
3. The defendant no.1 seeks rejection of the plaint on the ground that the plaintiff, in the plaint itself having admitted her adoption vide registered Adoption Deed by Sunil Mehra, is left with no right, title or interest in the estate of Rita Chandna.
4. The counsel for defendant no.1 and the counsel for the plaintiff have been heard.
5. The contention of the counsel for the defendant no.1 is that the plaintiff, on adoption by Sunil Mehra is deemed for all purposes to be the child of her adoptive father Sunil Mehra and all ties of the plaintiff in the family of her birth are deemed to be severed and replaced by those created by the adoption in the adoptive family. Attention has been invited to Sections 12, 15 & 16 of the Hindu Adoptions and Maintenance Act. It is further contended that the plaintiff having not taken any steps for having her adoption by Sunil Mehra declared null and void and the limitation for the plaintiff to seek such declaration having lapsed, the plaintiff is not entitled to maintain this suit for partition of estate of her grandmother in the family of her birth, claiming to be the daughter of a pre-deceased son of Rita Chandna. Reliance is placed on Sitabai Vs. Ramchandra 1969(2) SCC544 Dheer Singh Vs. Amar Singh 1997 SCC OnLine Raj 649, Jai Singh Vs. CS(OS) 235/2018 Page 2 of 17 Shakuntala (2002) 3 SCC634and Mst. Deu Vs. Laxmi Narayan (1998) 8 SCC701 6. Per contra, the counsel for the plaintiff has referred to Section 11 of the Hindu Adoptions and Maintenance Act and has contended that the adoption of the plaintiff by Sunil Mehra is not valid since the said Sunil Mehra, at the time of execution of the registered Adoption Deed by which the plaintiff was purported to be adopted, had a Hindu daughter living. It is argued that without the said essential condition being complied with, the adoption of the plaintiff by Sunil Mehra is void ab-initio and did not severe the ties of the plaintiff with her natural grandmother Rita Chandna and did not create any ties in the adoptive family. It is further argued that what is not valid or is void, is not required to be declared so and it is open to the plaintiff to set up the plea of her adoption being void in any claim in the family of her birth, as in the present case. Reliance is placed on Prem Singh Vs. Birbal (2006) 5 SCC353 7. I have considered the rival contentions. However before proceeding to deal with the same I must mention that Mr. Shikhil Suri counsel for the defendant no.1 and Mr. Aman Nandrajog counsel for the plaintiff, both, despite their young age have argued with great precision, maturity, without wasting any time and following the highest traditions of the Bar.
8. Hindu Adoptions and Maintenance Act, as per its preamble is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 4 of the said Act gives the Act an overriding effect and provides that any text, rule or interpretation of Hindu law or any custom or usage as part of that law, in force immediately before the commencement CS(OS) 235/2018 Page 3 of 17 thereof shall cease to have effect with respect to any matter for which provision is made therein and any other law in force immediately before the commencement of the Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions of the Act.
9. Section 11 of the Act is titled “Other conditions for a valid adoption” and prescribes the conditions which must be complied with in every adoption. One of such conditions is:-
"“(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption”.
10. Sections 12, 15 & 16 to which reference has been made by the counsel for the defendant no.1, are as under:-
"Effects of adoption - An adopted child shall be “12. 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 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 CS(OS) 235/2018 Page 4 of 17 to the obligations, person subject 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. Valid adoption not to be cancelled.-. No 15. 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. to Presumption as 16. 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 in compliance with adoption has been made the provisions of this Act unless and until it is disproved.” 11. The want of the counsel for the defendant no.1 is (i) that as long as the registered Adoption Deed, vide which the plaintiff was adopted by Sunil Mehra, remains and has not been declared void, the plaintiff under Section 12 is deemed to be the daughter of Sunil Mehra and all her ties in the family of her birth stand severed; and, (ii) the Court has to presume that adoption of the plaintiff by Sunil Mehra has been made in compliance with the provisions of the Act and the plaintiff, to dislodge the said presumption, was required to institute proceedings for having the registered Adoption Deed CS(OS) 235/2018 Page 5 of 17 declared null and void and which the plaintiff has not done and the limitation for which has expired.
12. The question for consideration thus boils down to, whether for having an adoption declared as null and void, and for cancellation thereof, a suit or other proceeding is required to be instituted or even without instituting the suit or other proceeding, the invalidity of the adoption can be set up by way of a claim or defence in a suit or other proceeding, wherever Adoption Deed is cited to deny the claim or to meet the defence.
13. Supreme Court in Sitabai supra was not concerned with such an issue; otherwise it was held, (i) the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth; (ii) the child altogether ceases to have any ties with the family of his birth; (iii) correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family; and, (iv) when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family; in other words, the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses.
14. The same was the position in Dheer Singh supra and the observation therein:-
"“Once, adoption deed has been signed by the natural and the adoptive father, the presumption of the adoption deed being genuine has to be given due weightage as Section 16 of the Act, 1956 is a rule of evidence. Once the registered adoption deed is produced in the court, the CS(OS) 235/2018 Page 6 of 17 court is bound to presume that the adoption has been made in compliance of the Act unless it is disproved. The said presumption is not merely a statutory presumption which can be rebutted in ordinary manner of rebuttal. This presumption has to be dislodged by disproving all the facts of adoption. The courts are bound to take the factum of adoption proved and onus is shifted on the other side to prove the contrary by disproving adoption.” cannot be read as precedent, making it incumbent on a person whose Deed of Adoption is invalid, to institute a suit or other proceeding for having the said invalidity declared.
15. Emphasis of the counsel for the defendant no.1 however was on Mst. Deu supra and on the basis whereof it was argued that it was incumbent on the plaintiff to, within the limitation prescribed in Article 57 of the Schedule to the Limitation Act, 1963, institute a suit to have the adoption deed declared null and void and the plaintiff cannot in this suit for partition prove the invalidity of adoption.
16. Supreme Court in Mst. Deu supra was concerned with an application for substitution, on the basis of an adoption deed, as a legal heir of a plaintiff in a suit for partition. It was held (i) that in view of Section 16 supra, whenever any registered document purporting to record an adoption made and signed by the parties mentioned therein is produced before the court, the court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved; (ii) it was not open to the defendants in the said suit for partition to collaterally challenge the said “registered deed of partition” (supposedly incorrect for “registered deed for adoption”); and, (iii) in view of Section 16 supra it was open to the CS(OS) 235/2018 Page 7 of 17 defendants to disprove such deed of adoption but for that they had to take independent proceeding; the High Court was fully justified in directing substitution on the basis of the registered adoption deed.
17. I am afraid, the aforesaid judgment also cannot be read as a precedent on the question as has arisen. What has been held qua the aspect of substitution as legal heir, will not apply to a substantive claim in a suit.
18. Jai Singh supra also, only lays down that Section 16 envisages a statutory presumption that in the event of there being a registered document pertaining to adoption, there would be a presumption that adoption has been made in accordance with law.
19. The counsel for the defendant no.1, on the basis of Mst. Deu has argued that similarly the plaintiff in the present suit for partition cannot make a claim contrary to the registered adoption deed.
20. Prem Singh supra, on which reliance is placed by the counsel for the plaintiff, on the contrary is concerned directly with the question as has arisen in the present case and holds (i) Section 31 titled “When cancellation may be ordered” of the Specific Relief Act, 1963 refers to both void and voidable documents; (ii) it provides for a discretionary relief; (iii) when a document is valid, no question arises of its cancellation; (iv) when a document is void ab- initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law as it would be a nullity; (v) once however a suit is filed by the plaintiff for cancellation of the transaction, it would be governed by Article 59 of the Schedule to the Limitation Act and even if Article 59 is not attracted, the residuary Article would be; (vi) Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which CS(OS) 235/2018 Page 8 of 17 the plaintiff asserts is required to be proved; it would therefore apply where a document is prima facie valid; it would not apply only to instruments which are presumptively invalid; (vii) if the plaintiff is in possession of a property he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed; and, (viii) thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.
21. Otherwise also, I find the question to be not res integra. Reference in this regard may be made to: (A) Gopal Vs. Basdeo 1886 SCC OnLine All 84 (DB) holding that Article 57 can apply only to suits purely for a declaration that an adoption is invalid or never, in fact, took place but where the suit is for possession of property, to which another limitation law is applicable, it will be governed by it, although the question of validity of adoption may arise. It was further held that it is discretionary in a Court to grant relief by declaration of a right, and consequently the fact that a person has not sued for a declaration should not be a bar to a suit for possession of property on any ground of limitation prescribed for the former. (B) Gulab Singh Vs. Natthu Singh 1895 SCC Online All 14 also holding that Article 57 applies to simplicitor suits for declaration of invalidity of adoption. (C) Doddawa Vs. Yellawa AIR1922Bom 223 (FB) also holding that omission to bring a declaratory suit qua adoption within the time CS(OS) 235/2018 Page 9 of 17 provided therefor is not a part of a suit for possession. It was further held that the mere fact that an adoption alleged to have taken place is not challenged does not set time running in favour of any party, so that another party may acquire a title and it is open to the other party to say “your adoption is invalid” and make a substantive claim. (D) Radha Dulaiya Vs. Rashik Lal AIR1923All 25 (DB) also holding that where the suit is not merely for declaration of invalidity of adoption, it will not be governed by Article 57 of the Schedule to the Limitation Act. (E) Kalyanadappa Vs Chanbasappa 1924 SCC OnLine PC14holding that, (i) the words “to obtain a declaration that an alleged adoption is invalid…” in Article 57 of the Schedule to the Limitation Act relate to Section 34 of the Specific Relief Act; (ii) that the date from which the time of three years provided for in Article 57 begins to run is a subjective or personal date; and, (iii) that if the adoption is void, the plaintiff is entitled to brush it aside and sue for possession to which he has a right and the time limit wherefor is twelve years from the death of the person as whose reversioner possession is claimed. (F) Ravula Kamalamma Vs. Ravula Venkata Narasimha Reddi MANU/AP/0205/1967 (DB) also holding that (i) the relief that the adoption is invalid or in fact did not take place need not expressly be asked for; however, if in essence that is the relief which is asked for, undoubtedly Article 57 would apply; (ii) a suit for possession on the basis of the plaintiff's title would not be a suit which could be said to fall within the purview of Article 57, though it might be necessary in CS(OS) 235/2018 Page 10 of 17 such a suit for the plaintiff to establish incidentally the invalidity of adoption; and, (iii) merely because an issue in reference to adoption is framed and that the matter has been gone into, cannot change the character of the suit and convert the suit into one under Article 57 of the Schedule to the Limitation Act. (G) Jamnadas Vs. Radhabai MANU/SC/0549/1969 also holding that a mere statement in the plaint that the adoption had never taken place or was invalid does not attract Article 57 of the Schedule to the Limitation Act, when the real relief claimed in the suit is otherwise. It was further held that the fact that it was necessary to decide the question of adoption, still did not bring the suit within the purview of Article 57. (H) Sadasiba Ratha Vs. Bimala Dibya AIR1982Ori 129 holding that (i) the relief even though claimed of declaration of invalidity of adoption was redundant and a surplusage inasmuch as a declaration regarding adoption was not necessary to decree the suit for partition, though it may be necessary to decide the said question; and, (ii) there was a consensus of the High Courts that Article 57 applies only to suits where a bare declaration that an adoption is invalid is asked for and it does not apply to a suit for possession of property, even though it may be necessary to find that a given adoption is invalid. (I) Hiraman Manga Jangale Vs. Girjabai 1982 SCC OnLine Bom 292 also holding that a mere fact that an adoption alleged to have taken place is not challenged does not set time running. CS(OS) 235/2018 Page 11 of 17 (J) Daya Devi Vs. Angoori Devi AIR2002Delhi 295 held that Article 57 of the Limitation Act deals with a suit brought to obtain a declaration to the effect that an alleged adoption is invalid or never in fact took place; however, where the principal relief is not the relief for obtaining declaratory decree as to the adoption being invalid but is a suit for the principal relief to recover possession on the ground of title as heirs and it was only incidentally that the adoption deed was sought to be avoided, the suit could be instituted within the limitation prescribed for a suit for possession. (K) Bodla Ravindranath Vs. Chintala Venkatalaxmi 2005 SCC OnLine AP587holding that the relief that an adoption is invalid need not expressly be asked for; if and only if, it is the essence i.e. the relief asked for by the plaintiff, will Article 57 apply. It was held to be the settled view that a suit for possession on the basis of title would not be a suit which would fall under Article 57 merely because an issue in reference to adoption is framed and that that has been gone into. The same was held not to change the character of the suit. SLP(Civil) No.13899/2006 preferred against the said judgment was dismissed on 15th January, 2008. (L) Gangavva Vs. Ningavva 2008 SCC OnLine Kar 44 holding that, (i) the words in Article 57 of the Schedule to the Limitation Act, “to obtain a declaration” have to be understood in the context of Section 34 of the Specific Relief Act; (ii) the suit envisaged in Article 57 is a suit under Section 34 of the Specific Relief Act; (iii) for Article 57 to apply, the suit must be in truth and substance, one for a CS(OS) 235/2018 Page 12 of 17 declaration that an adoption is invalid; however, when the plaintiff does not admit adoption, the question of the plaintiff seeking a declaration that the alleged adoption is invalid, would not arise; (iv) it is not necessary for the plaintiff to seek such a declaration before claiming right to the property by inheritance; (v) a suit for possession or a suit for partition do not fall within Article 57, even if in such a suit, the Court has to incidentally go into the question of validity of adoption; and, (vi) a suit for partition cannot be treated as one for setting aside of the adoption, merely because one of the claims set up therein attracts Article 57.
22. The contention of the counsel for the defendants thus is contrary to the consistent view of the Courts including the Supreme Court.
23. Otherwise also, I have in Sunil Kohli Vs. Subhash Chand Dua 2016 SCC OnLine Del 3244, Ashok Kumar Vs. Mohd. Rustam (2016) 227 DLT385and Capital Land Builders Pvt. Ltd. Vs. Komal 2018 SCC OnLine Del 11867, held (i) that in suits claiming relief with respect to immoveable property, the relief of declaration, even if claimed, is superfluous and the limitation for the suit would be governed by the limitation provided for the relief of possession; the longer limitation period provided for instituting a suit for recovery of possession would not be curtailed by the lesser limitation of three years provided for a suit for declaration; (ii) that to hold otherwise would tantamount to providing two different periods of limitation for a suit for recovery of possession of immovable property based on title i.e. of three years if the suit, besides for the said relief is also for the relief of declaration of title and of twelve years, if no relief of declaration is claimed; (iii) that a CS(OS) 235/2018 Page 13 of 17 relief of declaration of title to immovable property is implicit in a suit for recovery of possession of immovable property based on title inasmuch as without establishing title to property, if disputed, no decree for the relief of possession also can be passed; (iv) that thus, merely because a plaintiff in such a suit also specifically claims the relief of declaration of title, cannot be a ground to treat him differently and reduce the period of limitation available to him from that provided of twelve years, to three years; and, (v) that when a relief of declaration is coupled with the relief of possession, the larger period of limitation for the relief of possession and not the lesser period of limitation for the relief of declaration would apply. Reference in this regard may also be made to Vidur Impex and Traders Pvt. Ltd. Vs. Pradeep Kumar Khanna (2017) 241 DLT481and C. Natrajan Vs. Ashim Bai (2007) 14 SCC183 24. What has been held hereinabove with respect to a suit for possession would equally apply to a suit for partition, as the present suit is.
25. The cause of action for the present sit for partition accrued to the plaintiff only on 14th April, 2018 on demise of the paternal grandmother of the plaintiff in the family of her birth. It is not the case of the defendants that the claim for partition is barred by time.
26. The answer to the question framed in para 12 above, in my view is in the statute itself and is beyond pale of any controversy, Section 5 of the Hindu Adoptions and Maintenance Act is as under:-
"Adoptions to be regulated by this chapter.-. “5. (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the CS(OS) 235/2018 Page 14 of 17 provisions contained in this Chapter, and any adoption made in contravention of the said provision shall be void. (2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the right of any person in the family of his or her birth. The same unequivocally provides that any adoption made in contravention of the provisions of the Act shall be void and an adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of adoption nor destroy any rights of the person in the family of his or her birth. If that be so, then in my view there is no need for institution of a suit for declaration as void of the adoption and for cancellation of the adoption deed vis-à-vis the plaintiff. However, if such a suit were to be filed, it would have to satisfy the conditions as to limitation.
27. When Section 12 of the Act provides the effect of adoption, it provides so on the premise of adoption being valid. An adoption which is contrary to provisions of the Act, per Section 5(1) is void and per Section 5(2) neither creates any rights nor destroys any rights. Section 12 cannot be read as providing otherwise. Section 15 also prohibits cancellation by the adoptive parents or any other person of adoption, only if adoption has been validly made. A presumption under Section 16 on which much emphasis was placed by the counsel for the defendants, also is a rule of evidence and is not absolute and permits evidence to be led that adoption has not been made in CS(OS) 235/2018 Page 15 of 17 compliance with the provisions of the Act. Once evidence to rebut the presumption is permitted to be led, there can be no rejection of plaint.
28. Once the statute declares an adoption made in contravention of the provisions therein to be void, the purported act of adoption, even if by way of a registered document cannot validate the same.
29. „Void‟ is defined in Black‟s Law Dictionary, 8th Edition as “of no legal effect; null; of no effect whatsoever; thus i.e. an absolute nullity” and Section 5(2) of the Act further provides that and adoption which is void shall neither creates any rights in the adoptive family nor destroys the rights in the family of birth. Thus, if the plaintiff proves the factum of Sunil Mehra, at the time of execution of the registered adoption deed having a living Hindu daughter as is claimed, notwithstanding the registered adoption deed, the plaintiff, neither acquired any rights in the family of Sunil Mehra nor did the registered adoption deed destroy any rights of the plaintiff in the family of her birth. Once there is a prohibition in law to do something, the thing is deemed to have been not done and/or not had any effect.
30. In State of Maharashtra Vs. Pravin Jethalal Kamdar (2000) 3 SCC460it was held that when in pursuance to an order which is without jurisdiction and nullity, a sale deed is executed, the sale deed is also a nullity and it is not necessary to seek a declaration about the validity of the sale deed and ignoring the said document, a suit for a substantive relief can be filed contending the documents to be a nullity. This Court also, in Sanjay Kaushish Vs. D.C. Kaushish AIR1992Delhi 118 held that if a particular document or decree is void, the person affected by the said document or decree can very well ignore the same and file a suit seeking substantive relief CS(OS) 235/2018 Page 16 of 17 which may be available to him without seeking any declaration that the said decree or document is void or any consequential relief of cancellation of the same. Supreme Court, again in Ranganayakamma Vs. K.S. Prakash (2008) 15 SCC673held it to be a well settled principle of law that a void document is not required to be avoided whereas a voidable document must be. Reliance was placed on Prem Singh supra. Again, in The Rajasthan State Industrial Development Vs. Subhash Sindhi Cooperative Housing Society Jaipur (2013) 5 SCC427referring to the earlier judgments, it was held that void means non-existent from its very inception; the word, "void" has been defined as: ineffectual; nugatory; having no legal force or legal effect; unable in law to support the purpose for which it was intended; it also means merely a nullity, invalid; null; worthless; sipher; useless and ineffectual and may be ignored even in collateral proceeding as if it never were. It was further held that a thing which is non-est is not required to be set aside and there is no need for an order to quash it.
31. The registered adoption deed, if what the plaintiff pleads is proved to be correct, from the moment of execution thereof, did not create any rights in favour of the plaintiff in the family of Sunil Mehra or destroy any rights of the plaintiff in the family of her birth. The plaint is thus not liable to be rejected.
32. IA No.12875/2018 is dismissed. RAJIV SAHAI ENDLAW, J.
JANUARY08 2019 „pp/bs‟ (corrected and released on 25th January,2019) CS(OS) 235/2018 Page 17 of 17