BEFORE THE HON’BLE ALLAHBAD HIGH COURT

APPEAL FILED UNDER SECTION 96 OF CODE OF CIVIL

PROCEDURE , 1908
CIVIL APPEAL NO. 456 OF 2021

IN MATTER OF

ARUNA & KAUSHAL …………………………….. APPELLANT

VS
MALA & BALRAJ .................………………….. RESPONDENT

PETITION FILED ON BEHALF OF APPELLANT

COUNSEL FOR THE APPELLANT

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MEMORIAL ON BEHALF OF THE APPELLANT
 TABLE OF CONTENT
LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES

• LEGISLATION
• CASES REFERRED 4
• WEBSITES
• IMPORTANT DEFINATIONS

STATEMENT OF JURISDICTION 5
STATEMENT OF FACTS 6
ISSUES RAISED 8
SUMMARY OF ARGUMENTS 9
ARGUMENTS ADVANCED
1. WHETHER THE ADOPTION IS VAILD IN LAW ?
2. WHETHER APPELLANT IS ENTITLED TO GET EQUAL SHARE IN HIS BIOLOGICAL
PARENT’S PROPERTY?
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PRAYER 17

LIST OF ABBREVIATIONS
AC Appeal Cases

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MEMORIAL ON BEHALF OF THE APPELLANT
A.I.R All India Reporters

Art. Article

Cr. LJ Criminal Law Journal of India

CrPC Criminal Procedure Code

CPC Code of Civil Procedure

Edn. Edition

FRs Fundamental Rights

Hon’ble Honorable

IPC Indian Penal Code

Ors. Others

r/w Read with

SCC Supreme Court Cases

SC Supreme Court

SCR Supreme Court Reporters

Sec. Section
u/s Under section

VS Versus

INDEX OF AUTHORITIES
LEGISLATION
THE CODE OF CIVIL PROCEDURE, 1908
THE HINDU ADOPTION AND MAINTENANCE ACT, 1956
THE HINDU SUCCESSION ACT, 1956
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MEMORIAL ON BEHALF OF THE APPELLANT
 CASES REFERRED

Sita Bai vs. Ramchandra, AIR 1970 SC 343

Bhajandass vs. Nanuram and another AIR 1954 Raj 17
Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors (2003)
SajniSundari Dasi vs Jogendra Chandra Sen AIR 1931 Cal 591
Dhanraj Vs. Suraj Bai, AIR 1975 SC 1103

WEBSITES
1. https://blog.ipleaders.in
2. https://indiankanoon.org
3. https://www.casemine.com
4. www.legalserviceindia.com

IMPORTANT DEFINITION:
1.The appellant for the purpose of this memorandum shall be the Aruna and Kaushal.
2.The respondents for the purpose of all the issue shall be Mala and Balraj.

STATEMENT OF JURISDICTION

The counsel most respectfully submitted that the Hon’ble High Court has
jurisdiction in this matter under section 96 of CPC.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Section 96 of the code of Civil Procedure,1908

"Appeal from original decree"

(1) Save where otherwise expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie from every decree passed by any Court
exercising original jurisdiction the Court authorized to hear appeals from the decisions of
such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the
original suit does not exceed three thousand rupees.

STATEMENT OF FACTS
For the sake of brevity and convenience of the Hon’ble Court the facts of the case are
summarized in chronological order as follows:

BACKGROUND OF CASE

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 1. That Aruna is a middle-class, upper caste Hindu residing in Noida,a widow of
Arohi who was married to him in the year 1977.

2. That Aruna gave birth to a daughter Mala in 1978, and a son in 1980. However,
in unfortunate turn of events, their son died in an accident at home when he was
two years old.

3. That with God’s grace, Aruna gave birth to another son in the year 1983 who
also died in a road accident just as he turned five years old.

4. That another son was born to them third time in the year 1990. On his naming
ceremony, they consulted the astrologers and were advised to give away that child in
adoption to a person of the lower caste if they wanted this child to live.

5. That they named their child Kaushal and decided to give him in adoption to
their sweeper, Maina Devi, who was a 50 year old widow with no children, in order
to save his life.

6. That Maina Devi agreed to take the child in adoption merely for performing the
ritual and to give him back to them for his bringing up as she did not have the means
to bring him up.

7. That in a formal ceremony, Kaushal was given to Maina Devi by Arohi and
Aruna, as a mean to complete the ritual and was taken back for his upbringing.

8. That in the year 1994 another son was born to Arohi and Aruna and was
named Balraj.

9. That the fact of adoption of Kaushal was treated by Arohi and Aruna as a
formality to save his life and he was brought up by Arohi and Aruna as their son with
Mala and Balraj.

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MEMORIAL ON BEHALF OF THE APPELLANT
 10. That Arohi died intestate in the year 2012 and his wife, Aruna decided to divide
the property in four equal shares, one each for herself, Mala, Kaushal and Balraj.

11. That Mala and Balraj objected to it and demanded 1/3 share in the property
and contended that Kaushal had no right having been given in adoption to Maina
Devi.

12. That Aruna explains that the adoption was a mere ritual carried out on the
advice of the astrologer to save Kaushal’s life but without any intention actually to
give him up, had no effect on them.

13. That Mala and Balraj filed a suit for division of property and declaration that
Kaushal was not an heir to any property of Arohi in the absence of a will. The lower
court decreed in favour of the plaintiffs.

14. That Aruna and Kaushal filed an appeal against the order asking for an equal
share to Kaushal in the suit properties being the natural born son. As the adoption
was not valid in the absence of the intention to really give him in adoption.

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MEMORIAL ON BEHALF OF THE APPELLANT
 ISSUES RAISED

ISSUE I

WHETHER THE ADOPTION IS VAILD IN LAW?

ISSUE II

WHETHER THE APPELLANT IS ENTITLED TO GET EQUAL SHARE IN

HIS BIOLOGICAL PARENT’S PROPERTY?

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MEMORIAL ON BEHALF OF THE APPELLANT
 SUMMARY OF ARGUMENTS

1. WHETHER THE ADOPTION IS VAILD IN LAW?

It is humbly submitted before the Hon’ble court that the

adoption here, in this matter, is not valid as it doesn’t fulfill the
requisites of a valid adoption provided u/s 6 and 11 of the Hindu
Adoption and Maintenance act, 1956.

2. WHETHER THE APPELLANT IS ENTITLED TO GET EQUAL SHARE IN

HIS BIOLOGICAL PARENT’S PROPERTY?

It is humbly submitted before the Hon’ble court that there is a

legal right of appellant to get equal share in property as the
adoption was not valid as per the provisions of Hindu Adoption
and Maintenance Act, 1956 and therefore, the appellant has an
equal right in his father’s property as Mala and Balraj, his other
siblings, has as provided u/s 5 of the Hindu Adoption and
Maintenance act and 8 and 10 of Hindu Succession Act, 1956.

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MEMORIAL ON BEHALF OF THE APPELLANT
 ARGUMENTS ADVANCED
1. WHETHER THE ADOPTION IS VAILD IN LAW?
It is humbly submitted before the Hon’ble court that the adoption here,
in this matter, is not valid as it doesn’t fulfill the requisites of a valid
adoption provided u/s 6 and 11 of the Hindu Adoption and
Maintenance act, 1956.

Section 6 of The Hindu Adoption and Maintenance Act, 1956

Requisites of a valid adoption
No adoption shall be valid unless—
(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
(iv) the adoption is made in compliance with the other conditions mentioned
in this Chapter.

It is humbly submitted before the Hon’ble court that according to

section 6(iv) of the Hindu adoption and maintenance act, 1956 , one of
the requisite condition is that ‘the adoption is made in compliance with
the other conditions mentioned in this chapter’. However, the adoption
of the appellant did not comply with the condition mentioned under
section 11(vi) of the act and therefore, the requisite of the adoption
mentioned u/s 6 is not fulfilled.
In Dhanraj Vs. Suraj Bai, AIR 1975 SC 1103, it is held by the
Hon'ble Supreme Court that, failure of compliance with any of the
requirements of valid adoption specified in Sec. 6 of the Act, will render
the adoption null and void. It is further held that, the
compliance of Sec. 6 of the Act is mandatory in character
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MEMORIAL ON BEHALF OF THE APPELLANT
Section 11 in The Hindu Adoptions and Maintenance Act, 1956
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 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;
(iii) 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;
(iv) 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 adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(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

It is humbly submitted before the Hon’ble court that one of the

requisite condition u/s 11 of the Hindu Adoption and Maintenance Act,
1956 is ‘to actually give the child with intention to transfer the child
from the family of its birth to the family of its adoption’. However, the
appellant, Kaushal was never transferred to the Maina Devi and has
always lived with his biological parents and has been raised by them
along with his other siblings.
In Sita Bai versus Ramchandra, AIR 1970 SC 343, the court held that
mere physical act of giving and taking is not sufficient for a valid
adoption unless such giving and taking is accompanied with the
intention to give and take the child in adoption.
However, it was humbly submitted before the Hon’ble court that the
act of adoption done by the parents of the Kaushal, Aruna and Arohi,
was merely to save the life of their child. The devastated parents
apprehended by the previous inevitable events of losing their two sons
and under the influence of a prophecy of an astrologer that ‘for this
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MEMORIAL ON BEHALF OF THE APPELLANT
child to live, the parents have to give away the child in adoption to a
person of the lower caste’, gave their child to Maina Devi, who after
performing the ceremony, gave it back to the parents for his
upbringing.
It is humbly submitted that the intention was to save the life of their
son by performing a ritual of adoption. The parents never gave away
their child and the child was born and brought up by his biological
parents only. Maina Devi, who was hardly earning sufficient to take
care of herself, didn’t have the means to raise a child and fulfill his
needs. The only intention behind adopting the appellant was merely to
perform the ritual of adoption to adhere to the wishes of Aruna and
Arohi in order to save the life of their child. She never intended to take
care of the child and treat him as her own son. It was a merely a ritual
performed as advised by the astrologer to save the life of the new born
child of the devastated parents.
It is humbly submitted before that Hon’ble court that the consent of
the biological mother of the child, Aruna was vitiated as it was given
only to perform the religious ceremony aimed at saving the life of her
son. In addition, it is submitted that an adoption that to put the child in
situation of deprivation cannot be held valid and binding being contrary
to the principle of best interest of the child.

In Bhajandass vs. Nanuram and another AIR 1954 Raj 17, the court
held that it has to be shown that after adoption the adoptive was
treated as a son. A mere placing of a registered deed of adoption is not
sufficient.
It is most humbly submitted that the appellant was never treated as a
son of Maina Devi and had always lived with his biological parents,
Arohi and Aruna. The natural parents of the appellant had provided all
the amenities to him and he had been raised by them only.

Section 12 of The Hindu Adoptions and Maintenance Act, 1956

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MEMORIAL ON BEHALF OF THE APPELLANT
Effect of adoptions
An adopted child shall be 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 person subject to the obligations, if any,
attaching to the ownership of such property, including the obligation to
maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which
vested in him or her before the adoption.

It is important for the adoption to be valid to have any effect at all.

However, it is humbly submitted before that Hon’ble court that the ties
of the appellant has never been severed or replaced from his birth
family. The appellant from the beginning had known Aruna as his
mother and not Maina Devi. Hence, the effect of the adoption as per
the provisions of the Hindu Adoption and Maintenance Act, 1956 was
neither intended by the parties involved nor it took place.

It is humbly submitted before the Hon’ble court that as stated in the

arguments above, the adoption of Kaushal was not valid as per the
provisions of the Hindu Adoption and Maintenance Act, 1956.

2. WHETHER THE APPELLANT IS ENTITLED TO GET EQUAL SHARE IN

HIS BIOLOGICAL PARENT’S PROPERTY?

It is humbly submitted before the Hon’ble court that there is a legal

right of appellant to get equal share in property as the adoption of the
appellant was not valid according to the provisions of Hindu Adoption
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MEMORIAL ON BEHALF OF THE APPELLANT
and Maintenance Act, 1956 and therefore, the appellant has an equal
right in his father’s property as Mala and Balraj, his other siblings, has
as provided u/s 5 of the Hindu Adoption and Maintenance act and 8
and 10 of Hindu Succession Act, 1956.

Section 5 of Hindu Adoption and Maintenance Act, 1956

Adoptions to be regulated by this Chapter —
(1) No adoption shall be made after the commencement of this Act* by or to a
Hindu except in accordance with the provisions contained in this Chapter, and
any adoption made in contravention of the said provisions 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 rights of any person in the family of
his or her birth.

It is humbly submitted before the Hon’ble court that the adopted son
neither acquire any right in the adopted family nor does he forfeit his
right in the natural family.

In SajniSundari Dasi vs Jogendra Chandra Sen AIR 1931 Cal 591, it was
held that in the case of an invalid adoption, the adopted son acquired
no rights in the family of adoption and lost none in the family of his
birth.

It is humbly submitted before the Hon’ble court that the adoption of

the appellant stands void as it doesn’t fulfill the condition of
‘transfering the child from its birth parents to its adoptive parents’. The
adoption being void doesn’t destroy the birth rights of the appellant

In Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors, the
High Court of Calcutta stated that a void adoption will not create any
rights in the adoptive family for anyone that could have been obtained
from a valid adoption, nor any existing rights will end in the child’s
biological family.
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Section 8 of the Hindu Succession Act,1956
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

Section 10 of the Hindu Succession Act, 1956

Distribution of property among heirs in class I of the Schedule
The property of an intestate shall be divided among the heirs in class I of the
Schedule in accordance with the following rules:―
Rule 1.―The intestate’s widow, or if there are more widows than one, all the
widows together, shall take one share.
Rule 2.―The surviving sons and daughters and the mother of the intestate
shall each take one share.
Rule 3.―The heirs in the branch of each pre-deceased son or each pre-deceased
daughter of the intestate shall take between them one share. Rule 4.―The
distribution of the share referred to in Rule 3— (i) among the heirs in the branch
of the pre-deceased son shall be so made that his widow (or widows together)
and the surviving sons and daughters get equal portions; and the branch of his
pre-deceased sons gets the same portion; (ii) among the heirs in the branch of
the pre-deceased daughter shall be so made that the surviving sons and
daughters get equal portions.

It is humbly submitted before the Hon’ble court that the appellant,

Kaushal, being a legitimate son of the deceased Aruna, is his legal heir
and one of the surviving child of the deceased and therefore, he shall
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MEMORIAL ON BEHALF OF THE APPELLANT
get an equal portion in the property of the deceased akin to his mother,
Aruna and his siblings, Mala and Balraj, as provided under rule 2 of
section 10 of the Hindu Succession Act,1956.

PRAYER

For the reasons aforesaid, in the light of issue raised, arguments

advanced and authorities cited, it is humbly submitted before this
hon’ble court that it may be pleased to adjudge and declare :

1. The Decree of the lower court is dismissed

2. The appellant’s adoption is not valid under the Hindu Adoption
and Maintenance Act,1956
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MEMORIAL ON BEHALF OF THE APPELLANT
 3. The Appellant is entitled to get an equal share in the property of
his deceased biological father as u/s 8 and 10 of Hindu Succession
Act, 1956

And for this act of kindness, the appellant shall forever humbly pray.

Respectfully submitted on behalf of the Appellant

SUBMITTED BY –
GUNDEEP KAUR
ALC/LLB/18/025

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