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 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) SCC 544, Dheer Singh Vs. Amar Singh 1997 SCC OnLine Raj 649, Jai Singh Vs. Shakuntala (2002) 3 SCC 634 and Mst. Deu Vs. Laxmi Narayan (1998) 8 SCC 701.

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 SCC 353.

7. I have considered the rival contentions. However before proceeding to deal with the same I must menti