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2012 Supreme(Del) 273
HIGH COURT OF DELHI: NEW DELHI
MANMOHAN SINGH
SMT. HARSH GANDHI ..... Plaintiff
versus
SHRI THAKAR DASS THAKKAR & OTHERS ..... Defendants
I.A. No.12224/2011 in CS (OS) No.1547 of 2011
Decided On : 01.02.2012
Mr. Arun Kumar Gupta, Adv.
Mr. Rajiv Bansal, Adv. with Mr. Rahul Bhandari & Ms. Swati Gupta, Advs. for D-5to D-8.
The validity of adoption under Hindu law and the capacity of individuals to adopt or be adopted are essential considerations for determining locus standi and the rejection of a plaint.
Headnote:
Adoption - Hindu Law - Sections 4 to 10 of the Hindu Adoptions & Maintenance Act, 1956 - The court discussed the validity of adoption under Hindu law, the capacity of individuals to adopt or be adopted, and the essential ceremonies and conditions for a valid adoption.
Fact of the Case:
The defendants sought rejection of the plaintiff's suit for possession, declaration, and permanent injunction, claiming that the plaintiff, as the adopted daughter of Late Shri Tulsi Dass, had no locus standi to file the suit.
Finding of the Court:
The court found that the plaintiff's statement in the plaint regarding her adoption raised questions requiring adjudication, and the mere weakness of the case was not a ground for rejection of the plaint.
Issues: Validity of the plaintiff's adoption, capacity of individuals to adopt or be adopted, and essential ceremonies and conditions for a valid adoption under Hindu law.
Ratio Decidendi: The court held that the plaint should not be rejected based on the weakness of the case, and the specific statement in the plaint regarding the plaintiff's adoption required trial to determine the actual date of adoption.
Final Decision: The court dismissed the application for rejection of the plaint, indicating that the trial was necessary to decide the actual date of adoption.
MANMOHAN SINGH, J.
1. The present application for rejection of plaint under Order VII, Rule 11 read with Section 151 CPC, has been filed by defendants No.5 to 8 along with the written statement to the suit for possession, declaration and permanent injunction.
2. It is stated in the application that the plaintiff, who is claiming herself to be the adopted daughter of Late Shri Tulsi Dass has not challenged the transfer of membership by Late Shri Tulsi Dass in favour of defendant No.2 qua the suit property, but has only challenged the subsequent documents, i.e. General Power of Attorney, Will, Receipt and Agreement to Sell, all dated 26.06.1997 which are only confirmatory in nature. Further, Late Shri Tulsi Dass, who lived upto 15.09.2007, never during his lifetime, challenged the transfer of membership or the abovementioned subsequent documents. Therefore, the present suit is liable to be dismissed.
3. It is further stated that the present suit is not maintainable, because the defendants No.5 to 7 are the bonafide purchasers of the suit property from Shri Vikram Tandon vide sale deed dated 30.04.2011 and the defendant No.8, in respect of her share, is also a bonafide purchaser from the defendants No.5 to 7 vide sale deed dated 30.05.2011 and the plaintiff cannot challenge the said two sale deeds. The plaintiff has not challenged the sale deed dated 27.01.2000 executed by defendant No.2 in favour of defendant No.3 in respect of the suit property and also the sale deed dated 23.04.2008 whereby the defendant No.3 transferred the suit property in favour of defendant No.4.
4. As per the defendants, the plaintiff is not the adopted daughter of Late Shri Tulsi Dass and, therefore, has no locus-standi to file the present suit. It is also stated that Late Shri Tulsi Dass, had transferred the membership of Low Income Friends Co-operative House Building Society in favour of defendant No.2 during his lifetime and the said Society had also duly approved the said resolution on transfer in its meeting dated 22.10.1978 and thus, the suit property was transferred in favour of defendant No.2. The Society also issued the letter dated 12.10.1978 to defendant No.2, informing him about the said change in membership. Since in the year 1978, no specific document for transfer of the suit property in favour of defendant No.2 was executed, therefore, in the year 1997, as a token of acknowledgement of the said transfer, Late Shri Tulsi Dass executed certain documents like General Power of Attorney, Will, Receipt and Agreement to Sell, all dated 26.06.1997 in favour of defendant No.2.
5. Late Shri Tulsi Dass remained alive till 15.09.2007 and the defendant No.2 was in possession of the suit property but, Shri Tulsi Dass never took any steps to challenge the said transfer. This clearly shows that it was done by the Society at the request of Late Shri Tulsi Dass himself. Therefore, the further transaction by defendant No.2 in favour of defendant No.3 and subsequently to defendants No.4, 5 to 7 and defendant No.8 cannot be challenged by the plaintiff.
6. In reply to the above application, the plaintiff has stated that the present application has been filed by the defendants only to delay the disposal of the present suit. The defendants herein have not shown any ingredients of Order VII, Rule 11CPC while seeking rejection of the plaint. It is further stated the all the documents dated 26.06.1997 like General Power of Attorney, Will, Receipt and Agreement to Sell are forged and fabricated and were disclosed/filed first time only in September, 2010 along with the written statement filed by defendant No.2 herein in response to the suit bearing No.274 of 2010, pending before the Rohini Court. The said documents had never been produced by the defendants before September, 2010 nor the defendants asserted any right, title or interest by any of the said documents prior to disclosure of the same. In March, 2008, the plaintiff had served a legal notice up
