A void adoption does not create any rights and does not need a specific declaration to be set aside. A statutory presumption in favor of a registered adoption deed can be rebutted, and a party can seek to enforce their rights based on the void transaction without seeking a specific declaration.

Vipin Sanghi, J.

Cav 246/2019

Counsel for the respondent/caveator enters appearance.

The caveat stands discharged.

FAO(OS) 51/2019 & CM APPL. 11494/2019

The appellants, who were the defendants in the suit, have assailed the order dated 08.01.2019 passed by the learned Single Judge in I.A. No.12875/2018 preferred by the defendants under order 7 rule 11 CPC to seek rejection of the plaint. The learned Single Judge has, vide his detailed order, dismissed the said application.

2. The respondent has preferred CS(OS)235/2018 to seek the relief of partition of the estate of Ms.Rita Chandna, who had three children including Mr.Rakesh Chandna, a pre-deceased son. The other two children of Ms.Rita Chandna and their branches are the appellants/defendants.

3. Mr.Rakesh Chandna was married to Ms.Shilpi Mehra. From the wedlock of Mr.Rakesh Chandna with Ms.Shilpi Mehra, two offspring were born including the respondent Ms.Aishani Chandna and Mr.Sukrit Chandna (son). Mr. Rakesh Chandna died in the year 2000. After the demise of Mr.Rakesh Chandna, his widow Ms.Shilpi Mehra married Mr.Sunil Mehra and vide a registered adoption deed dated 03.02.2004, he purportedly adopted the respondent/plaintiff Ms.Aishani Chandna Mehra.

4. Ms.Rita Chandna passed away on 14.04.2018, whereafter the respondent/plaintiff instituted the aforesaid suit seeking the relief of partition of the estate of Ms.Rita Chandna. The defendants moved the aforesaid application I.A.No.12875/2018 under order 7 rule 11 of the CPC seeking rejection of the plaint on the premise that the plaintiff having been adopted by Mr.Sunil Mehra vide a registered adoption deed dated 03.02.2004, she had no right to claim partition in respect of estate left by Ms.Rita Chandna

5. The pleading of the plaintiff/respondent before the learned Single Judge was that the said adoption was void ab-initio on the ground that Mr.Sunil Mehra had a female child, namely Ms.Shraddha Mehra, living at the time of the adoption on 03.02.2004.

6. The contention of the appellants/defendants was that the said registered adoption deed dated 03.02.2004 had not been separately assailed by the respondent/plaintiff within the period of limitation prescribed in Article 57 of the Schedule of the Limitation Act, which provides the period of limitation as three years, "to obtain a declaration that an alleged adoption is invalid, or never, in fact, took place," and the said period of limitation begins to run "when the alleged adoption becomes known to the plaintiff". The respondent/plaintiff not having assailed the said adoption by seeking a declaration in respect thereof, even within three years of attaining majority, she could not seek partition of the estate of Ms.Rita Chandna. She could not seek partition without seeking the said declaration which, in fact, was barred by limitation.

7. The contention of the appellants/defendants was also that Section 16 of the Hindu Adoptions and Maintenance Act (HAMA) raises a statutory presumption in favour of a valid adoption, unless and until it is disproved to the contrary. Since, the registered adoption deed dated 03.02.2004 has not been assailed and disproved to be invalid, the suit for partition by the respondent/plaintiff could not proceed.

8. On the other hand, the submissions of the respondent/plaintiff was that the adoption deed dated 03.02.2004 was void for the aforesaid reason and, consequently, there was no necessity for the respondent/plaintiff to seek a declaratory relief in respect of the said adoption, since a void adoption is as good as no adoption.

9. According to the respondent/plaintiff, she could ignore the said adoption as it was void, and it was not necessary for her to seek a specific declaration in respect thereof. The plaintiff also contended that it was not necessary for the plaintiff to seek the relief of declaration in respect of the said adoption in her suit to claim partition of the estate of Ms.Rita Chandna.

10. The learned Single Judge has, while passing the imp