BEFORE

THE HON’BLE HIGH COURT OF KARNATAKA

Aruna & Ors. Petitioner

V.

Mala & Ors. Respondent

UPON SUBMISSION TO THE HON’BLE JUDGES OF HIGH

COURT OF KARNATAKA

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONER 2

 TABLE OF CONTENTS

Table of Content......................................................................................... 1
Index of Abbreviations.............................................................................. 2
Index of Authorities................................................................................... 3
Statement of Jurisdiction.......................................................................... 4
Statement of Facts..................................................................................... 5
Statement of Issues.................................................................................... 7
Summary of Arguments............................................................................ 8
Arguments Advanced................................................................................ 9
Prayer......................................................................................................... 12

MEMORIAL ON BEHALF OF PETITIONER 3

 Index of Abbreviations

1. A.C - Appellate Case

2. A.I.R – All India Reporter

3. Bom.- Bombay

4. Const – Constitution

5. HAMA- Hindu Adoption and Maintenance Act, 1956

6. M.P.L.J – Madhya Pradesh Law Journal

7. Ors. – Others

8. Pet’r – Petitioner

9. Sec- Section

10. SC- Supreme Court

11. S.C.C – Supreme Court Cases

12. V. - Versus

MEMORIAL ON BEHALF OF PETITIONER 4

 Index of Authorities

Statues

1. Constitution of India, 1950

2. Hindu Adoption and Maintenance Act, 1956

3. Hindu Succession Act,1956

Cases

1. Balu Sakharam Powar vs Lahoo Sambhaji Tetgura AIR 1937 Bom 279

2. Sawan Ram and Others v/s Kala Wanti & Ors AIR 1967 SC 1761

3. Shrinivas Krishnarao Kango vs Narayan Devji Kango And Ors 1954 AIR 379

4. Smt. Dipo V. Wassan Singh & Ors 1983 AIR 846

5. Tahsil Naidu & Anr vs Kulla Naidu & Ors 1970 AIR 1673

6. U.R.Virupakshaiah vs Sarvamma & Anr [2008] INSC 2206

MEMORIAL ON BEHALF OF PETITIONER 5

 STATEMENT OF JURISDICTION

It is humbly submitted before the honourable High Court of Karnataka that the court

has the jurisdiction to maintain this case under the Appellate Jurisdiction explicitly of

Civil Jurisdiction which includes orders and judgements of the district court, civil district

court and subordinate court.

MEMORIAL ON BEHALF OF PETITIONER 6

 STATEMENT OF FACTS

1. Arohi was a middle-class, upper caste Hindu. He married Aruna in the year 1977.
Aruna gave birth to a daughter Mala in 1978, and a son in 1980. They were happy at
the thought that their family was complete. However, in unfortunate turn of events,
their son died in an accident at home when he was two years old. They were very
upset but tried to have another child and with God’s grace, Aruna gave birth to
another son in the year 1983.

2. Looking at his horoscope, the pandit suggested special ritual to be followed every
month for the welfare of this son till the age of five as there was danger to his life till
that time. Despite observance of the ritual with full reverence by the couple, this son
also died in a road accident just as he turned five years old.

3. The couple was completely devastated. They were apprehensive that another child may
meet the same fate if they tried for another child. However, they tried and yet 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. They named him Kaushal and
decided to give him in adoption. Their sweeper, Maina Devi, a 50-year-old widow with
no children agreed to take the child in adoption and to give him back to them for his
bringing up as she did not have the means to bring him up.

4. In a formal ceremony Kaushal was given to Maina Devi by Arohi and Aruna and was
taken by Maina Devi. Thereafter, she gave him back to the couple for bringing him up
on her behalf. Maina Devi kept visiting them regularly and gave something for Kaushal
every month till he was ten years old when she died. In the meanwhile, in the year 1994
another son was born to Arohi and Aruna and he was named Balraj.

5. 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.

MEMORIAL ON BEHALF OF PETITIONER 7

 Arohi died intestate in the year 2012. Aruna decided to divide the property in four equal
shares, one each for herself, Mala, Kaushal and Balraj.

6. Mala and Balraj objected the division decision and demanded 1/3 share in the property
as Kaushal had no right having been given in adoption to Maina Devi. Aruna’s pleas
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.
They maintained that the adoption was legal and complete when Kaushal was given
and taken in adoption with a free will. Unable to resolve their dispute, 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.

7. The lower court decreed in favour of the plaintiffs. 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. They pleaded that the adoption was not valid in the absence of the
intention to really give him in adoption. Alternatively, they pleaded that the adoption
was bad as Aruna’s consent was vitiated having been given under the mistaken belief
that it was a religious ceremony aimed at saving the life of her son. In addition, it was
submitted that an adoption that put the child in situation of deprivation cannot be held
valid and binding being contrary to the principle of best interest of the child.

MEMORIAL ON BEHALF OF PETITIONER 8

 STATEMENT OF ISSUES

1. Whether the adoption of Kaushal was valid and still applicable during
the division of property or not?

2. Whether Kaushal has a right for the property or not?

MEMORIAL ON BEHALF OF PETITIONER 9

 SUMMARY OF ARGUMENTS

1. Whether the adoption of Kaushal was valid and still applicable during the
division of property or not?

The appellant humbly submits before the hon’ble court that the adoption of Kaushal to
Maina Devi was not applicable during the division of property as the adoption was not a
valid one because the adoption must be real and not symbolic. However, no specific
shastric or religious ceremony is necessary for the purpose.

2. Whether Kaushal has a right for the property or not?

The appellant humbly submits before the hon’ble court that Kaushal does have the right
for the property which will be inherited by heirs of Arohi as Kaushal was gave for
adoption to Maina Devi but the adoption was invalid and not applicable during the
division of the property that was intended to be inherited by the legal heirs of Arohi.

MEMORIAL ON BEHALF OF PETITIONER 10

 ARGUMENTS ADVANCED

1. Whether the adoption of Kaushal was still applicable during the division of
property or not?

The appellant humbly submits before the hon’ble court that the adoption of Kaushal to
Maina Devi was not applicable during the division of property as Kaushal was given to
Maina Devi for adoption on the suggestion of an astrologer merely on belief that he would
die if they didn’t gave him. But Maina Devi was a sweeper and was not financially stable
due to which Arohi and Aruna agreed to bring him up as their own.

It is also pleaded by the appellant that the adoption was not valid in the absence of the
intention to really give him in adoption. Alternatively, it is pleaded that the adoption was
bad as Aruna’s consent was vitiated having been given under the mistaken belief that it was
a religious ceremony aimed at saving the life of her son.

The Sec 11 of Hindu Adoption and Maintenance Act, 1956 states the other conditions for
valid adoption and in sub-section vi it explicitly states that “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 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 family of its adoption.”

As per the Sec 11(vi) of HAMA it is essential for the parents to give in their child for
adoption with the intent to transfer the child from the family of its birth but in the present
case Kaushal was not given in for adoption with intention as already stated it was merely
done under mistaken belief that it was a religious ceremony aimed at saving the life of her
son.

Therefore, we can conclude that the adoption of Kaushal by Maina Devi was invalid as
there was no intention of giving Kaushal for adoption was there on part of his legal and
birth parents. Hence, the adoption is invalid and not applicable.

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 2. Whether Kaushal has a right for the equal share in the property or not?

The appellant humbly submits before the hon’ble high court that Kaushal does have the
right for the property which will be inherited by heirs of Arohi as Kaushal’s adoption was
an invalid one which has been discussed in the issue-1 Devi and not applicable during the
division of the property that was intended to be inherited by the legal heirs of Arohi.

The Sec 12 of Hindu Adoption and Maintenance Act, 1956 explains the effects of
adoptions and states that the effects of adoption “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.”

Therefore, according to the Sec 12 of The Hindu Adoption and Maintenance Act, 1956, if
Kaushal was son of Maina Devi then he the legal right to inherit any property which
belonged to Maina Devi or her deceased husband. But in the current case the adoption was
not a valid one.

As per the Sec 10 of Hindu Succession Act, 1956 which states the Distribution of property
among heirs in class I of the Schedule explicitly mentions in the Rule 2.―The surviving
sons and daughters and the mother of the intestate shall each take one share.

Therefore according this Kaushal has the right to take an equal share in property which is
intended to be inherited by the heirs of Arohi.

For inference we can refer to the case of SMT. DIPO V. WASSAN SINGH & OTHERS1
wherein it was held that a property inherited by a son from his immediate three paternal
ancestors become a joint family property who holds the property in coparcenary with his
son, son’s sons and son’s son’s sons. Hence it was the ancestral property in the hands of
plaintiff.

Therefore, from the above mentioned case we can infer that Kaushal being an heir to Arohi
had the right for the equal share in the property.

1
1983 AIR 846

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 PRAYER

In the light of arguments advanced and authorities cites, the respondents humbly submits before
the hon’ble High Court that it may be pleased to adjudge and declare that:

1. Kaushal’s adoption was invalid and not applicable, and

2. Kaushal does have right for the equal share in property to be inherited by Arohi’s heirs

Or

Pass any other judgement as it deems fit in the interest of Equity, Justice and Good
conscience.

Sd/-

(Counsel for the petitioner)

MEMORIAL ON BEHALF OF PETITIONER 13