Delhi District Court
Iqbal Ahmed vs Gulzaro Begum Ors on 3 February, 2024
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. DISTRICT JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI.
CS DJ No. 613105/2016
CNR No. DLCT010002752008
Iqbal Ahmad,
s/o late Mohd. Sami,
r/o 2507, Gali Kaptan Wali,
Baradari, Ballimaran,
Delhi-110006. ...Plaintiff.
Versus
1. Gulzaro Begum
w/o late Mohd. Zamir Ahmed,
r/o 976, Gali Razan,
Farash Khana, Delhi-110006.
2. Rais Ahmad,
s/o late Mohd. Sami,
r/o C-23/11, Gali no. 5,
Chauhan Bangar,
Rishi Kardam Marg, Delhi-110053.
3. Mohammad Naseem,
s/o late Mohd. Sami,
r/o 2507, Gali Kaptan Wali,
Baradari, Ballimaran,
Delhi-110006.
4. Jamil Ahmad,
s/o late Mohd. Sami,
r/o H. No. 2507, Gali Kaptan Wali,
Baradari, Ballimaran,
Delhi-110006.
CS No. 613105/2016
No. 1 of 43
(Parveen Singh)
ADJ-11/Central/THC/Delhi/03.02.2024
5. Mohd. Sultan,
s/o late Mohd. Sami,
r/o 2872/75, Fourth Floor,
Gali Shankarwali, Sitaram Bazar,
Delhi-110006.
6. Shakeel Ahmed,
s/o late Mohd. Sami,
r/o H. No. D-33 & 34
Fourth Floor, Gali No. 1,
Noor Ilahi, North Ghonda,
Delhi-110053.
7. Shakeela Begum (Now deceased)
(i) Shabina Begum (daughter)
w/o Jubin
(ii) Rubina Begum (daughter)
w/o Ikhtiyar
(iii) Ashakeen (son)
s/o Mohd. Yaseen
(iv) Fahim (son)
s/o Mohd. Yaseen
(v) Nadim (son)
s/o Mohd. Yaseen
(vi) Shumaila
w/o late Arafeen,
presently w/o Fahim
All r/o H. No. 1249, Gali Jamun Wali,
Kala Mahal, Jama Masjid
Delhi-110006.
8. Kausar Begum
w/o Abdul Jabbar,
d/o late Mohd. Sami,
r/o 2872/75, Fourth Floor,
Gali Shankarwali, Sitaram Bazar, Delhi-110006.
CS No. 613105/2016
No. 2 of 43
(Parveen Singh)
ADJ-11/Central/THC/Delhi/03.02.2024
9. Aqila Begum,
w/o Mohd. Irfan,
d/o late Mohd. Sami,
r/o C-56, Fourth Floor,
Dujana House, Matia Mahal,
Jama Masjid, Delhi-110006
10. Sajid Bhai,
r/o 244/6, Gali No. 4,
Sangam Vihar, Wazirabad,
Delhi. .....Defendants.
Date of Filing : 08.09.2008
Date of Arguments : 16.01.2024.
Date of Judgment : 03.02.2024.
SUIT FOR DECLARATION, PARTITION, PERMANENT
INJUNCTION UNDER MUSLIM LAW
JUDGMENT
PLEADINGS
1. The present suit for partition and permanent injunction had been filed by the plaintiff for partition of the properties of deceased Zamir Ahmed.
1.1 Deceased Zamir Ahmed was the brother of plaintiff and of defendants no. 2 to 9 and was husband of defendant no. 1. 1.2 It is claimed in the suit that deceased Zamir Ahmed expired issueless on 03.07.2008. He had left behind following properties:-
(i) H. No. 976, 2nd Floor, Gali Rajan, Frash Khana, Delhi.
(ii) H. No. SY-901, Khasra No. 244/6, Gali No. 4, Sangam Vihar, Wazirabad, Delhi-54.CS No. 613105/2016 No. 3 of 43
(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024
(iii) Shop No. 3564, Katra Babar Beg, Bazar Lal Kuan, Delhi.
(iv) Shop / godown no. 165, Gali Imli Wali, Roadgran, Lal Kuan, Delhi-
6. 1.3 Hence, being a Muslim, the inheritance of the property of late Zamir Ahmed, as per the suit of the plaintiff, is to be governed by Shariat/ Muslim law. Hence, the plaintiff has claimed that defendant no. 1, who is widow of Zamir Ahmed, was entitled to 1/4th share i.e. 25% share in the properties left behind by him, defendants no. 7 to 9, who are sisters of Zamir Ahmed, were entitled to 15% share in the properties left behind by late Zamir Ahmed and remaining 60% devolved upon plaintiff and defendants no. 2 to 6, who were the brothers of late Zamir Ahmed. 1.4 On being served with the summons of the suit, defendant no. 1 filed her written statement.
1.5 In the written statement filed on behalf of defendant no. 1, a preliminary objection was taken that the suit was bad for non joinder of parties as the adopted son of deceased Zamir Ahmed namely Abdul Samad @ Samir Ahmed was not impleaded as a party in the suit. Another preliminary objection was taken that the plaintiff had no right, title or interest in the properties left behind and owned by deceased Zamir Ahmed. The suit had not been properly valued for the purposes of court fee and jurisdiction.
1.6 On merits, it was submitted that deceased Zameer Ahmed was owner of property no. 976, Second Floor, Gali Rajan, Farash Khana, Delhi as well as property no. SY-901, Khasra No. 244/6, Gali No. 4, Sangam Vihar, Wazirabad, Delhi. These properties were purchased by CS No. 613105/2016 No. 4 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 Zameer Ahmad from his own funds. It was further submitted that plaintiff and defendants no. 2 to 9 had not inherited any right in the properties left behind by Zamir Ahmed and that only the defendant no. 1 and her son namely Abdul Samad @ Samir Ahmed had inherited all the properties left by Zamir Ahmed. With regard to the tenancy, it was submitted that the shop bearing no. 1665, Gali Imli Wali was under the exclusive tenancy of deceased Zamir Ahmed and after his death, defendant no. 1 and her son, being the co-tenants, inherited the rights in the same and defendant no. 2 had no right, title or interest in the said property. It was further submitted that the property bearing no. SY-901, Khasra No. 244/6, Gali no. 4, Sangam Vihar, Wazirabad Village, Delhi was purchased by Zamir Ahmed from his own funds. Rest of the averments made in the plaint were denied.
1.7 In the written statement filed on behalf of defendants no. 2 to 9, it was admitted that Zamir Ahmed was the owner of property no. 976, 2nd Floor, Gali Rajan, Frash Khana, Delhi-6 and house no. SY-901, Khasra No. 244/6, Gali no. 4, Sangam Vihar, Wazirabad Village, Delhi. It was denied that property no. 3564, Katra Babar Beg, Lal Kuan, Delhi and shop no. 1665, Gali Imliwali, Roadgran, Lal Kuan, Delhi-6 were not in possession of defendant no. 2. It was submitted that huge quantity of scrap lying in shop no. 1665 belonged to defendant no. 2. 1.8 In the replication, the averments made in the written statements were denied and the averments made in the plaint were reaffirmed.
CS No. 613105/2016 No. 5 of 43(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 ISSUES
2. Thereafter, from the pleadings of the parties, vide order dated 13.12.2012, following issues were framed:-
1. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD1
2. Whether Abdul Samad is an adopted son of deceased Zameer Ahmed and defendant no. 1? OPD1
3. If the answer to issue no. 2 is yes, its effect? Onus on parties.
4. Whether the plaintiff and defendant no. 2 to 9 are entitled to the partition as prayed and if yes, their respective share? OPP.
5. Relief.
2.1 Thereafter, the parties led their evidence. Plaintiff examined himself as PW1. On the other hand, defendants examined defendant no. 1 as DW1, Babu Rafi as DW2, Shakil Ahmed as DW3 and Rais Ahmed as DW4.
2.2 I have heard learned counsels for the parties and carefully perused the record.
FINDINGS ON ISSUES
3. My issue wise findings are as under:-ISSUE NO. 1
1. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD1
4. The onus to prove this issue was upon the defendant no. 1 who had claimed that the suit had not been properly valued for the CS No. 613105/2016 No. 6 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 purposes of court fee and jurisdiction.
4.1 The plaintiff in his suit had claimed that for the purposes of valuation, property bearing no. 976, 2nd Floor, Gali Rajan, Frash Khana, Delhi was assessed at Rs.2 lacs and the value of property no. SY-901, Khasra No. 244/6, Gali no. 4, Sangam Vihar, Wazirabad Village, Delhi was assessed at Rs. 2.50 lacs. The annual rent of shop no. 3564, Katra Babar Beg, Bazar Lal Kuan, Delhi was Rs.1200/- and of godown/ shop no. 165, Gali Imli Wali, Roadgran, Lal Kuan, Delhi-6 was Rs.1200/-.
Out of these properties, plaintiff was claiming his share by way of inheritance as 10% of the total and the value of the share of the plaintiff comes to Rs.50,000/- upon which court fees of Rs.2900/- had been affixed and the value of the suit for the purposes of jurisdiction was fixed at Rs.5 lacs.
4.2 Defendant no. 1 had claimed that the suit had not been properly valued for the purposes of court fee and jurisdiction. However, no alternate value had been given.
4.3 The onus to prove that the suit had not been properly valued for the purposes of court fee and jurisdiction was upon the defendant no.
1. 4.4 Defendant no. 1 appearing as DW1 deposed that the value of the suit properties was more than Rs.25 lacs and therefore, the court had no pecuniary jurisdiction to try and entertain the present suit. 4.5 During her cross examination, she deposed that she had sold one of the properties bearing no. SY-901, Khasra No. 244/6, Gali no. 4, CS No. 613105/2016 No. 7 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 Sangam Vihar, Wazirabad Village, Delhi but she did not remember to whom she had sold this property.
4.6 Otherwise, her testimony has remained unrebutted. 4.7 However, it is to be seen that she has not brought any evidence to support her oral contention that the properties were worth more than Rs.25 lacs. A mere oral testimony in absence of any documentary evidence such as the sale deed of similarly located properties showing that the value of the properties claimed by the defendant is correct, will not be sufficient to prove the fact that the properties were worth more than Rs.25 lacs.
4.8 At least the defendant no. 1, who had admitted that she had sold one of the properties, could have brought the documents of sale of that property to reflect that for at lease one of the properties, the value was much more than what had been claimed by the plaintiff. 4.9 I accordingly find that the mere oral testimony of defendant no. 1 would not be sufficient to prove that the valuation done by the plaintiff is not correct. This issue is accordingly decided against defendant no. 1.
ISSUE NO. 22. Whether Abdul Samad is an adopted son of deceased Zameer Ahmed and defendant no. 1? OPD1
5. The onus to prove this issue was upon the defendant no. 1 who had claimed that during lifetime of her husband, she and her husband had adopted child Abdul Samad @ Samir Ahmed.
CS No. 613105/2016 No. 8 of 43(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 5.1 Before proceeding further, it is necessary to deal with the contention of the plaintiff that as the parties are governed by Muslim Personal Laws, there could not have been any valid adoption as claimed by defendant no. 1. It is necessary to decide this aspect first because, in case it is found that deceased Zamir Ahmed, being governed by Muslim Personal Law, had no right to adopt a child or that his adopted child could not be equated to his biological child, then the question whether he had adopted a child or not, would lose significance. 5.2 It has been contended by ld. Counsel for plaintiff that the parties to the suit are Sunni Muslims and all personal matters and particularly in the matter of inheritance of estate of deceased Zamir Ahmed, they are governed by Shariat Law. He has contended that Muslim Law does not recognize adoption. It is not a concept applicable to Muslims and that is more so after coming into effect of Shariat Act 1937, which applied to Muslim Personal Law/ Shariat to Muslims. He has contended that as adoption is not recognized under Muslim Law, the purported adoption would not have any effect on the inheritance and inheritance has to be decided as per Muslim Law as provided u/s 2 of Shariat Act. He has further contended that in India, adoption is only amongst Hindus, Budhists, Jains and Sikhs but not amongst Muslims, Christians, Parsis or Jew. He has further contended that according to section 76 of Muslim Law, adoption is not recognized by Muslim Law. Adoption shall not confer upon any person the status of a child except in cases:- (i) where subject to the provisions of Shariat Act, there is a valid custom of adoption and (ii) where it is permitted by the provisions of CS No. 613105/2016 No. 9 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 any law for the time being in force. He has further contended that according to the judgment of Mohd. Allahabad v. Mohd. Ismail, ILR 10, adoption does not confer any rights of inheritance or other rights on the adopted son. He has therefore, contended that it is crystal clear that no adoption is permitted under Shariat Law and there is no meaning of adoption deed and adopted child in Shariat Law therefore, the non applicant no. 3 does not have any right, title and interest in the estate of deceased Zamir Ahmed.
5.3 Ld. Counsel for defendant no.2 has contended that according to section 76 of Muslim Law, adoption is not recognized by Mohammedan Law. He has relied upon the judgment of Hon'ble Supreme Court in Dagadabai (Dead) by LRs v. Abbas @ Gulab Rustum Pinjari decided on 18.04.2017 wherein it has been held that Mohammedan Law does not recognize adoption. Further reliance has been placed on the judgment of Hon'ble High Court of Delhi in Asma Praveen v. Badru Nisa & Ors decided on 04.07.2018 wherein it has been held that the concept of adoption and successor by contact are not recognized in Muslim Law.
6. Before proceeding further, I shall consider certain legal propositions which have been raised on behalf of the plaintiff and defendant no. 2.
6.1 First is the contention, that according to section 76 of Muslim Law, adoption is not recognized. However, there is no section 76 of Muslim Law as there is no legislation called Muslim Law passed by the legislature.
CS No. 613105/2016 No. 10 of 43(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 6.2 Then there are contentions with regard to Hindu Adoption and Maintenance Act. However, they need not be considered because the said Act is not applicable to the Muslims.
7. In view of the contentions at bar, it becomes necessary to look the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as Shariat Act).
7.1 Section 2 of Shariat Act is as under:-
2. Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law.
marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
7.2 Therefore, by virtue of Shariat Act, in case the parties are Muslims, Muslim Personal Law is to be compulsorily applied on the subjects mentioned in section 2 of Shariat Act. 7.3 Interestingly, adoption, which is the subject matter of issue at hand, is conspicuously missing from section 2. The legislature in its wisdom did not automatically and compulsorily apply Muslim Personal Law on the subject of adoption. The subject of adoption has been considered and provided for in section 3 of the Shariat Act, which is as under:-
CS No. 613105/2016 No. 11 of 43(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024
3. Power to make a declaration.--
(1)Any person who satisfies the prescribed authority--(a)that he is a Muslim; and(b)that he is competent to contract within the meaning of section 11 of the Indian Contract Act, 1872 (9 of 1872); and(c)that he is a resident of the territories to which this Act extends,may by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section, and thereafter the provisions of section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.
(2)Where the prescribed authority refuses to accept a declaration under sub section (1), the person desiring to make the same may appeal to such officer as the State Government may, by general or special order, appoint in this behalf, and such office may, if he is satisfied that the appellant is entitled to make the declaration, order the prescribed authority to accept the same.
7.4 A bare reading of section 3 makes it very clear that on the subjects of adoption, wills and legacies, Mulsim Personal Law/ Shariat is not automatically applicable to a Muslim. It will only be applicable to a Muslim where a Muslim chooses / elects to apply the said law to himself by making a declaration as required u/s 3 of the Act. After he makes such a declaration, the said declaration would bind him, his minor children and their descendants.
8. The question which now arises is that what shall be the effect of a declaration not being made u/s 3 of the Shariat Act; and how the case of adoption by a Muslim, who has not given declaration as required u/s 3 of the Shariat Act is to be dealt with? 8.1 As the Shariat Act did not automatically apply to a Muslim CS No. 613105/2016 No. 12 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 on the subject of adoption, we have to look at the legal position as it existed prior to coming into the force of the Shariat Act. Before the Shariat Act came into force, various State and provincial statutes were governing the field. The statute applicable to Delhi was Punjab Laws Act 1872. Section 5 of Punjab Laws Act 1872 reads as under:-
5. Decisions in certain cases to be according to Native law.--In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution the rule of decision shall be--
(1) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority;
(2) the Muhammadan law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to.
8.2 Therefore, as per section 5 of Punjab Laws Act, 1872, even the subject of adoption was to be governed by Muslim Personal Law. 8.3 However, by virtue of section 6 of the Shariat Act, section 5 of Punjab Laws Act 1872 stood repealed. The repealing section 6 of Muslim Personal Law (Application) Act 1937 is as under:-
6. Repeals The undermentioned provisions of the Acts and Regulations mentioned below shall be repealed in so far as they are inconsistent with the provisions of this Act, namely:
(1)....CS No. 613105/2016 No. 13 of 43
(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 (2)...
(3)...
(4)...
(5) Section 5 of the Punjab Laws Act, 1872 (4 of 1872) 8.4 Therefore, section 5 of Punjab Laws Act 1872 as far as it was inconsistent with the provisions of Shariat Act stood repealed. As per section 2 of the Shariat Act, 1937, adoption, wills and legacies are not the subjects to which Muslim Personal Law automatically applies and thus, section 5 of Punjab Laws Act as far as it compulsorily applied Muslim Personal Law to adoption, wills and legacies being inconsistent with the provisions of Shariat Act which provides that Muslim Personal Law cannot be applicable to a Muslim on the subjects of adoption, Wills and legacies unless, there is a declaration u/s 3 of the Shariat Act stood repealed. However, it can be argued that as far as adoption is concerned, in case where there is no declaration u/s 3 of the Act, in view of Section 5 of Punjab Laws Act 1872, the same can be governed by customary laws applicable to the parties.
8.5 However, the question which then will be required to be answered is: did legislature while enacting Muslim Personal Law Act intend that in such a case customary law should be applicable? Definitely, no express provision in this regard has been made so we have to look at the object and reasons of Muslim Personal Law (Application) Act.
8.6 The Muslim Personal Law was enacted with following objects and reasons:-
For several years it has been the cherished desire of the CS No. 613105/2016 No. 14 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 Muslims of British India that Customary Law should in no case take the place of Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest moslem religious body has supported the demand and invited the attention of all concerned to the urgent necessity of introducing a measure to this effect. Customary Law is a misnomer inasmuch as it has not any sound basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic of all laws. The status of Muslim women under the so-called Customary Law is simple disgraceful. All the Muslim women Organisations have, therefore, condemned the Customary Law as it adversly affects their rights. They demand that the Muslim Personal Law will automatically raise them to the position to which they are naturally entitled. In addition to this present measure, if enacted, would have very salutary effect on society because it would ensure certainty and definiteness in the mutual rights and obligations of the public. Muslim Personal Law (Shariat) exists in the form of a veritable code an is too well known to admit of any doubt or to entail any great labour in the shape of research, which is the chief feature of Customary Law.
8.7 A bare reading of objects and reasons of the Act makes it clear that Muslim Personal Law was brought in effect to put an end to the application of customary law to the Muslims. The language used in objects and reasons reflects that the intent was to repudiate customary law as far as it applied to the Muslims. Therefore, the repealing provision has to be read in the light of the object and reasons, which leads to an inference, that the enactment of Shariat Act was with the intent: "that customary law in no case should take place of Muslim Personal Law". Therefore, customs which were thrown out of the gate, can not be introduced by bringing them back through a window.CS No. 613105/2016 No. 15 of 43
(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 8.8 However, even if it is accepted for the sake of arguments that in case of a Muslim; who has not given declaration as required u/s 3, custom or usage relating to the three matters, including adoption as listed in the said section, would continue to apply; the question that arises is, that if no custom or usage is established, what would be the course of action for a court to follow? Would it then apply Muslim Personal Law to the concept of adoption and hold, that adoption is not a recognized mode of filiation under Muslim Personal Law? 8.9 The answer in my opinion has to be in negative. I say so because the legislature had specifically excluded adoption as a subject to which Muslim Personal Law would automatically apply. Hence, holding that in absence of a custom recognizing adoption being pleaded and established, the parties shall be governed by Muslim Personal Law on this subject would amount to indirectly applying Muslim Law to a subject which the legislature had specifically excluded, and to a person, who had not exercised the choice given by the legislature and had elected not to have Muslim Personal Law applied to him on the subject of adoption. It would amount to telling the man that though the legislature gave you a choice to be governed or not to be governed by Muslim Personal Law on the subject of adoption, Wills and legacies and although you chose not to apply Muslim Personal Law on those subjects to yourself, still the court would indirectly force Muslim Personal Law on you on those subjects. Adopting this approach will render section 3 of the Shariat Act a dead letter.
8.10 It is now well settled law that what cannot be done directly CS No. 613105/2016 No. 16 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 cannot be done indirectly. The latin maxim Quando aliquid prohibetur ex directo, prohibetur et per obliquum is applicable in India and it is therefrom, that doctrine of colourable legislation has emerged. The bar of this maxim, which has been accepted to have legal force in India, is not only applicable to the legislative acts but is also applicable to the acts of court. In this regard, guidance was provided by Hon'ble Supreme Court in Jagir Singh v. Ranbir Singh & Anr, AIR 1979 SC 381. 8.11 Hon'ble Supreme Court, while dealing with the question, whether the High Court was precluded from interfering with the order of a Magistrate in exercise of its revisional jurisdiction u/s 397 Cr.P.C where the order of Magistrate had already been challenged in the revision petition before Sessions Judge and had been upheld, had held as under:-
4. The first question for consideration is whether the High Court was precluded from interfering with the order of the Magistrate in the exercise of its revisional jurisdiction by reason of the provisions of Section 397(3) of the Criminal Procedure Code 1974. Section 397 which corresponds to Section 435 of the Criminal Procedure Code 1898 invests the High Court and the Sessions Judge with concurrent revisional jurisdiction over inferior criminal Courts within their jurisdiction. The District Magistrate who also had revisional jurisdiction under Section 435 of the CrPC 1898 is now divested of such jurisdiction. In addition, there are, in the 1974 Code two important changes both of which are apparently designed to avoid delay and to secure prompt rather than perfect justice. The first change is that introduced by Section 397(2) which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. The second is that introduced by Section 397(3) which provides that if an application under the Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the CS No. 613105/2016 No. 17 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 other of them. We are concerned with this provision in this appeal. The object of Section 397(3) is clear. It is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Session Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority. The language of Section 397(3) is clear and peremptory and it does not admit of any other interpretation. We may also mention here that even under Section 435 of the previous CrPC, while the Sessions Judge and the District Magistrate had concurrent jurisdiction, like present Section 397(3) previous Section 435(4) provides that if an application under the Section had been made either to the Sessions Judge or District Magistrate no further application shall be entertained by the other of them.
5. In order to cross the hurdle imposed by Section 397(3) it was suggested that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead of an one directed against the order of the Magistrate. We do not think that it is permissible to do so. What may not be done directly cannot be allowed to be done indirectly, that would be an evasion of the statute. It is a "well-known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance" (per Abbott C.J. in Fox v. Bishop of Chester (1824) 2 B & C 635 "To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined" (Maxwell, 11th edition, page 109). When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge's order.
8.12 The aforesaid judgment of Hon'ble Supreme Court, mandates, that even the courts cannot indirectly do what was directly prohibited.CS No. 613105/2016 No. 18 of 43
(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 8.13 As per the legislative mandate, on the subject of adoption, Muslim Personal Law is not applicable to a Muslim unless, a declaration u/s 3 of Shariat Act is made. Therefore, by an indirect method, Muslim Personal Law cannot be made applicable to the said person on the ground that as he has failed to establish the custom on the issue, he has now to be bound by Muslim Personal Law, though he elected not to be so bound.
8.14 It is not that in all cases, a Muslim by religion has to be bound by Muslim Personal Law and has no choice to move out of the purview of Muslim Personal Law.
8.15 One such right to choose is provided in The Special Marriage Act. As far as inheritance is concerned, Muslim Personal Law does not apply to a Muslim or to two Muslims, whose marriage has been registered under the Special Marriage Act. Meaning thereby that though the said person or persons continue to be Muslims, despite the existence of Section 2 of Shariat Act, they would still be governed by general laws if they had chosen to do so by registering their marriage under the Special Marriage Act.
8.16 A similar choice seems to have been given to a Muslim under the Shariat Act where he is allowed to elect, whether in case of wills, adoption and legacies, he would want to be governed by Muslim Personal Law or not. Thus, under the Shariat Act, a Muslim has a right to stay out of the purview of the Muslim Personal Law as far as adoption, Wills and legacies are concerned. He does so by choosing to not file a declaration as required u/s 3 of the Act. If he makes such CS No. 613105/2016 No. 19 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 choice, the courts cannot bring him within the fold of Muslim Law by an indirect route by holding, that although he elected not to be bound by Muslim Personal Law on the subject of adoption, but, as he failed to establish a custom, he now should be bound by Muslim Personal Law which he, in the first instance, had chosen not to apply to himself. Doing so will be in violation of the choice given to him by law. 8.17 The legal position which emerges is, that the adoption by a Muslim, who has elected not to be governed by Muslim Personal Law by choosing not to file declaration u/s 3 of Shariat Act will neither be governed by Shariat nor be subjected to any limitation as provided in Shariat.
8.18 The proposition that a Muslim, on the subject of adoption, has a right to elect to be governed or not to be governed by Muslim Personal Law, is further fortified by the judgment of Hon'ble Supreme Court in Shabnam Hashmi v. UOI, AIR 2014 SC 1281. 8.19 In the said case also, an argument had been raised before the Hon'ble Supreme Court that Islamic law does not recognize an adopted child at par with biological child. The said argument was incorporated in para 10 of the judgment, which is as under:-
10. The All India Muslim Personal Law Board (hereinafter referred to as 'the Board') which has been allowed to intervene in the present proceeding has filed a detailed written submission wherein it has been contended that under the JJ Act, 2000 adoption is only one of the methods contemplated for taking care of a child in need of care and protection and that Section 41 explicitly recognizes foster care, sponsorship and being look after by after-care organizations as other/ alternative modes of taking care of an abandoned/surrendered child. It is contended that Islamic CS No. 613105/2016 No. 20 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 Law does not recognize an adopted child to be at par with a biological child. According to the Board, Islamic Law professes what is known as the "Kafala" system under which the child is placed under a 'Kafil' who provides for the well being of the child including financial support and thus is legally allowed to take care of the child though the child remains the true descendant of his biological parents and not that of the "adoptive" parents. The Board contends that the "Kafala" system which is recognized by the United Nation's Convention of the Rights of the Child under Article 20(3) is one of the alternate system of child care contemplated by the JJ Act, 2000 and therefore a direction should be issued to all the Child Welfare Committees to keep in mind and follow the principles of Islamic Law before declaring a muslim child available for adoption under Section 41(5) of the JJ Act, 2000.
8.20 Hon'ble Supreme Court after considering the aforesaid contentions had held as under:-
11. The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, Rules and the CARA guidelines, as notified under the Act. The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him. To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved.
The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.
CS No. 613105/2016 No. 21 of 43(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 8.21 From the aforesaid judgment of Hon'ble Supreme Court, a legal position can be deduced that in adoption matters, a person has choice to be governed or not to be governed by personal law. Even a Muslim can adopt a child under the JJ Act and such an adoption shall have the same effect as provided u/s 2 (aa) of JJ Act. Thus, the contention that in view of the Shariat, Muslims under no circumstances can adopt a child and the adopted child can never be at par with biological child was rejected by Hon'ble Supreme Court. 8.22 Ld. Counsel for plaintiff has contended that in view of the judgment of Hon'ble Allahabad High Court in Mohd. Allahabad v. Mohd. Ismail, ILR 10, adoption does not confer any rights of inheritance or other rights on the adopted son. The counsel for plaintiff did not file the said judgment on record. On searching I could not find any judgment by this name. It appears to me that counsel for plaintiff was referring to the judgment of Muhammad Allahdad Khan & Anr. v. Muhammad Ismail Khan & Ors, ILR 10 All. 289 as decided on 07.04.1888.
8.23 I have gone through the said judgment. The said judgment is not applicable to the facts of the present case because firstly, the said judgment was related to acknowledgment of legitimacy by a Muslim and the effect thereof. Secondly, the said judgment was not on the point of adoption and no detailed discussion on this point had been done. Thirdly, the said judgment was passed prior to enactment of Shariat Act and thus, after the passage of Shariat Act, all the questions relating to the CS No. 613105/2016 No. 22 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 application of Muslim Personal Law have to be decided as per the Shariat Act, 1937.
8.24. I have also considered the judgments of Dagadabai (supra) and Asma Praveen (supra). However, as already discussed, a Muslim who has not filed any declaration u/s 3 of Shariat Act, shall not be governed by Muslim Personal Law/ Shariat on the subjects of adoption, wills and legacies. Thus in case of such a person, Muslim Personal Law cannot be applied on these subjects. That being the case, these judgments shall only be applicable to the case of Muslim who has filed a declaration u/s 3 of Shariat Act.
8.25 Thus, even under the prevalent law of the land, not withstanding the Shariat, a Muslim who has not filed a declaration u/s 3 of Shariat Act, can adopt a child and the said child would become legitimate child of his adoptive parents with all rights, privileges, and responsibilities that are attached to a relationship.
9. Applying this principle to the facts of the present case, I find that there is no evidence or even an assertion that deceased Zamir Ahmed had filed any declaration u/s 3 of the Shariat Act. Therefore, deceased Zamir Ahmed had elected not to be governed by Muslim Personal Law on the subject of adoption and thus, if he had adopted a child as claimed by defendant no. 1, the said adoption shall be governed by general law of the land.
10. The question which arises is, whether in fact deceased Zamir Ahmed and defendant no. 1 had adopted child Abdul Samad @ Samir Ahmed?
CS No. 613105/2016 No. 23 of 43(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024
11. However before this fact is decided, another question needs to be answered. The said question is, that what shall be the parameters which the court has to apply to find out whether deceased Zamir Ahmed and defendant no. 1 had adopted child Abdul Samad @ Samir Ahmed? 11.1 As already discussed, the adoption of child Abdul Samad @ Samir Ahmed by deceased Zamir Ahmed and defendant no. 1 has to be governed by general law and not by Muslim Personal Law. 11.2 The question of adoption in this case could have been easily dealt with, had there been a general law of adoption applicable to citizens of India irrespective of their religion. An effort in this direction was initiated by introduction of Adoption of Children Bills in 1972 but due to opposition from various religious sections, it was dropped. An effort was again made to introduce such law in 1980 but sadly, the same was also not successful as the bill lapsed. Hence, in case of a Muslim who had chosen to exercise his option u/s 3 of the Shariat Act to be not governed by Muslim Personal Law on the subject of adoption, the legislature failed to provide a definitive law on this subject and give meaning to the right to elect which it had given to Muslims u/s 3 of the Shariat Act.
11.3 Finally, after the passage of J.J (Care & Protection of Children) Amendment Act 2006 and the formation of J.J (Care & Protection of Children) Rules 2007 and the judgment of Hon'ble Supreme Court in Shabnam Hashmi (supra), a process has emerged whereby any person, including a Muslim can adopt a child. However, the purported adoption of Abdul Samad @ Samir Ahmed by Gulzaro CS No. 613105/2016 No. 24 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 Begum and deceased Zamir Ahmed was in the year 2006 which is prior to coming into force of J.J (Care & Protection of Children) Amendment Act 2006 (which came into effect on 22.08.2006) and before the passage of J.J (Care & Protection of Children) Rules 2007. Hence, this adoption can not be governed by the said Act also.
11.4 Thus, there is no general law of adoption or legal framework provided for adoption which can be applied to the present case. That being the case, the legal provision that would govern the field is section 6 of Punjab Laws Act 1872. Section 6 of Punjab Laws Act, 1872 is as under:
6. Decisions in cases not specially provided for. - In Cases not otherwise specially provided for, the Judges shall decide according to justice, equity and good conscience.
11.5 A similar situation had arisen before Hon'ble Kerala High Court in Philips Alfred Malvin v. Y.J Gonsalvis, AIR 1999 Ker 187 where Hon'ble Kerala High Court was dealing with the issue of adoption by a Christian couple. As in Mohammedans, there is no general law of adoption or process for adoption for Christians. 11.6 On the factual matrix, Hon'ble Kerala High Court had held that the plaintiff in that case was an adopted child of a deceased Christian couple. The court arrived at that decision in the following manner:-
6. The plaintiff claims to be the adopted son..............................From the above statements, a clear picture of a son living along with Correa couple can be seen. Till the date of death of George Correa the CS No. 613105/2016 No. 25 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 plaintiff was living with him and thereafter he was residing with the second defendant, enjoying all the facilities of a brother. Thus, from the admissions of the second defendant, it is clear that the plaintiff was treated as a member of the family by Correa couple and subsequently by the defendant. The other defendants, except the second defendant, have no objection regarding the status of the plaintiff. The second defendant would contend that Correa couple have not adopted the plaintiff as their son.
Christian Law also does not recognise adoption. But it is an admitted fact that the Christian Law does not prohibit adoption. The Hindu Adoptions and Maintenance Act provides for adoption of children by Hindu parents. The main purpose of law of adoption is to provide consolation and relief to childless person. An adopted child is transplanted in the adoptive family creating all rights and relationships as if the child was a biological child. On the other hand, all his rights and relationships cease in the natural family. So far as Hindus are concerned, adoption is to preserve the continuation of ones lineage. Apart from the religious motives, secular motives were also important such as man's desire for celebration of his name for the perpetuation of his lineage, for providing security in the old age and for dying in satisfaction that one has left a heir to one's property. It is essentially a transfer of dominion over the child from the natural parents to the adoptive parents and therefore some essential formalities were prescribed to effectuate the transfer on dominion. The position of an adopted child in respect of inheritance and maintenance is the same as that of a natural born child. Nowadays inter-country adoption is promoted for which the Apex Court has given some guidelines in Lakshmi Kant Pande v. Union of India, AIR 1984 SC 469.
7. Let us see whether the plaintiff was adopted by the Correa couple. In order to prove adoption, the plaintiff has produced Ext. A2 extract from the Register of Baptism kept in the Holy Trinity Church, Kannur, where the alleged adoption took place. Ext. A2 reads as follows :
"Illegitimate child of Anna, adopted by the god parents, mother gave her consent for the adoption and Catholic education, to the god parents. Both Anna and John were Marthomites from Travancore as per the entry in the Baptism Register."CS No. 613105/2016 No. 26 of 43
(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 Even though the second defendant's counsel objected to the admissibility of Ext. A2, the Court below did not find any reason to reject the evidence of Ext. A2. The plaintiff has summoned the baptism register and the parish priest, who is in custody of Ext. A2. He was examined as PW-2. PW-2 proved the baptism register and the contents of Ext. A2. Thus, the plaintiff has proved that on 8-6-1946 the plaintiff was baptised as the son of Correa couple and that he was adopted by them at the Holy Trinity Church, Kannur.
...........
9. Mohammedan Law also recognise adoption if there is custom prevailing among Mohammedan communities. The custom is accepted to have the force of law, as is held in AIR 1936 Lahore 465. Section 29 of the Oudh Estates Act, 1869 permits a Mohammedan Talukdar to adopt a son. In the State of Jammu & Kashmir, the existence of local custom regarding adoption has been recognised by virtue of Sri Pratap Jammu & Kashmir Laws Consolidation Act, 1977. The right of the couple to adopt a son is a constitutional right guaranteed under Article 21. The right to life includes those things which make life meaningful. Correa couple might have thought of making their life more meaningful by adopting a son.
11.7 Therefore, the Hon'ble Kerala High Court arrived at the decision on the ground that (a) there was an informal declaration of adoption in the Church register, (b) till the death of George Correa i.e. the adoptive father, the adopted son (plaintiff) was living with him and was being treated as a member of family by Correa couple i.e. the adoptive parents (c) that apart from religious motives, adoption can also be done for secular motives such as man's desire for celebration of his name, for the perpetuation of his lineage, for providing security in the old age etc. (d) that right to life includes things which make life meaningful and a couple might adopt a child thinking that it would make CS No. 613105/2016 No. 27 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 their life more meaningful.
11.8 The aforesaid principles as laid down by Hon'ble Kerala High Court in Philips Alfred (supra) can be applied to the present case to see whether deceased Zamir Ahmed and defendant no. 1 had adopted child Abdul Samad @ Samir Ahmed or not. These principles are in consonance with the doctrine of justice, equity and good conscience and thus, it can be said that as there was no general law which governed the field, Hon'ble Kerala High Court decided the matter as per justice, equity and good conscience.
11.9 Thus, the question whether in fact there was an adoption of child Abdul Samad @ Samir Ahmed by deceased Zamir Ahmed and defendant no. 1 has to be decided on the basis of Section 6 of Punjab Laws Act, 1872 and guidance in this regard can be taken from judgment of Hon'ble Kerala High Court in Philips Alfred (supra). EVIDENCE
12. Appearing as DW1, defendant no. 1 deposed that the son adopted by her and her husband Zamir Ahmed was named Abdul Samad and also known as Samir Ahmed. He was aged about 10 years and was a necessary party in the matter. She further deposed that as no child was born from her wedlock with Zamir Ahmed, they adopted a son namely Abdul Samad @ Samir Ahmed for which religious ceremony had also been performed and an adoption deed dated 12.04.2006 was also executed. Therefore, Abdul Samad @ Samir Ahmed was the son of deceased Zamir Ahmed. She further deposed that Abdul Samad @ Samir CS No. 613105/2016 No. 28 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 Ahmed, the adopted child of late Zamir Ahmed, was studying in class IV in Dolphin Public School. The school report card and school identity card were collectively exhibited as Ex.DW1/1. She further deposed that birthday of the said child was celebrated by her and her husband Zamir Ahmed during his lifetime. The said birthday celebration was duly attended by defendant no. 3, who is the real brother of deceased Zamir Ahmed. The photographs showing the birthday celebration were collectively exhibited as Ex.DW1/2. These photographs clearly depicted defendant no. 3 and his wife and had shown that not only the defendant no. 3 but all the brothers and sisters of late Zamir Ahmed were fully aware about the adoption of the minor child namely Abdul Samad now known as Samir Ahmed.
12.1 During her cross examination, she admitted that Zamir Ahmed had no natural son during his lifetime and volunteered, that her husband, during his lifetime, had adopted the son of her sister and an adoption deed was also prepared. The child was taken in adoption immediately after his birth. She did not remember the date of birth of the child but he might be four days old when he was taken in adoption by her and her husband. She admitted that the original adoption deed was not on record and at that stage, she had produced the original adoption deed from her possession which was taken on record and was marked as mark X. She did not know the exact date of execution of adoption deed or the place where it was prepared and volunteered, that since it was got prepared by her husband, therefore, she did not know the date. To her knowledge, the said document was prepared at Mori Gate. She was not CS No. 613105/2016 No. 29 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 present when this document was prepared and volunteered, that at the time when this document was prepared, her husband, her brother-in-law/ jija and some friends of her husband had gone to prepare it. She did not remember the name of any of the friends of her husband who had accompanied him for preparing of this document. She admitted that this deed of adoption was never registered.
13. The second witness examined by defendant no. 1 to prove the adoption is Babu Rafi, the biological father of the adopted child. He deposed that on 18.07.2004, he was blessed with twin male children at Mohalla Shahbukhari, Deoband, Saharanpur, Uttar Pradesh. Prior to the birth of these twins, he was already having one son and one daughter. His brother-in-law Zamir Ahmed was issue less. Since he was already having a son and a daughter and his wife had given birth to twins, at the request of Zamir Ahmed and Gulzaro Begum, soon after the birth of the child, they had given Abdul Samad @ Samir Ahmed to Zamir Ahmed and Gulzaro Begum. The child was actually given in the lap of Zamir Ahmed and Gulzaro Begum by him and his and his wife and since that day, Abdul Samad @ Samir Ahmed had been brought up by Smt. Gulzaro Begum as their own child. The child was given in adoption in presence of his family members and some relatives of Zamir Ahmed. After two years of the adoption, on 12.04.2006, he and his wife had come to Delhi for the purpose of execution of adoption deed and adoption deed was executed on 12.04.2006 at Delhi. The adoption deed dated 12.04.2006 was exhibited as Ex.DW2/1. Upon this deed, he identified his signatures at point A , signatures of his wife at point B, CS No. 613105/2016 No. 30 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 signatures of Gulzaro Begum at point C, signatures of Zamir Ahmed at point D, signatures of Niyaz Ahmed at point E and signatures of Abdul Khaliq at point F. 13.1 During his cross examination, he deposed that he knew Gulzaro Begum since the date of his marriage as she was his sister-in- law. He could not exactly specify the date of birth of his four children. He denied that all his four children were living with him and volunteered, that one of his child was living with Gulzaro Begum. He denied that he was intentionally deposing falsely on this aspect. The stamp paper on which document Ex.DW2/1 was prepared was purchased by husband of Gulzaro Begum. He denied that his child Abdul Samad @ Samir Ahmed was only given to Ms. Gulzaro Begum for the purpose of studies and not in adoption and volunteered, that in fact he was given in adoption on 12.04.2006 under a deed of adoption. He denied that document Ex.DW2/1 was not signed by anyone in his presence. He admitted that document Ex.DW2/1 was not a registered document. The deed of adoption was executed on 12.04.2006 whereas the child given in adoption had born on 18.07.2004.
14. I have heard ld. Counsels for the parties and perused the record very carefully.
14.1 Ld. Counsel for defendant no. 1 has contended that by virtue of deposition of defendant no. 1 and Babu Rafi, defendant no. 1 has proved that during his lifetime, her husband had adopted a newly born child Abdul Samad @ Samir Ahmed. No inconsistencies have emerged in their cross examination. He has further contended that even CS No. 613105/2016 No. 31 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 plaintiff has indirectly admitted that Zamir Ahmed had adopted the said child. Though he denied that Zamir Ahmed had adopted a male child of his sister-in-law about 09 years ago but volunteered, that it was not mentioned in Shariat and he again said that it was because of Shariat that he was saying that the child was not adopted. He further contended that the other brother of Zamir Ahmed, who appeared as DW4 (D-2), during his cross examination, has clearly admitted that the child was adopted by Zamir Ahmed. His admission came when he deposed in cross examination that he had also paid money for educational expenses of the adopted child of Zamir Ahmed. DW4 further deposed that even during the lifetime of Zamir Ahmed, when Zamir Ahmed was confined to bed, he had given expenses/ cash to his wife i.e. defendant no. 1 and to his adopted son for his education. On seeing one of the photographs Ex.DW1/2 (colly) i.e. (Mark X), he deposed that he could see his brother Zamir Ahmed, his wife Gulzaro Begum and his another brother namely Naseem and his wife Smt. Shahida. But in the remaining photographs, he could not recognize anybody as the photographs were not clear. DW4 further deposed that he had never visited the school of the adopted child Master Samad Ahmed and volunteered, that the child was not adopted in his presence. He then falsely stated that he had never seen Samad Ahmed in the house of Zamir Ahmed because he had admitted his presence in the photograph mark X during the birthday celebration of the said child. Ld. Counsel has thus contended that the adoption of the child is clearly admitted.
14.2 On the contrary, ld. Counsel for plaintiff has contended that CS No. 613105/2016 No. 32 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 though he is not admitted the said adoption but even if for the sake of arguments, it is admitted that there was adoption of a child, the said adoption is not recognized under Muslim law. He has further contended that even the provisions of section 2 (c) of Hindu Adoption and Maintenance Act clearly state that it does not apply to Muslims unless it is proved that there was a valid custom by which he was governed. He has further contended that as per section 10 of the Registration Act, all births and deaths provides for notification of every birth and death by a person who had attended the same and the said section indicates the word "every birth" it means so many birth except the natural birth i.e. it may be adopted birth. He has further contended that defendant no. 1 has produced an adoption deed dated 12.04.2006 which had been prepared on a stamp paper of Rs.5 and not registered before the competent authority so defendant no. 1 has failed to prove the said adoption deed. He has further contended that as per section 17(3) of the Registration Act, authorities to adopt was required to be registered but Ex.DW2/1 was not a registered document and thus, presumption of adoption u/s 16 of Hindu Adoption & Maintenance Act also does not arise. Hence, it is very much clear that the adoption deed filed by defendant no. 1 does not have any meaning in the eyes of law and defendant no. 1 was issueless widow of Zamir Ahmed and she would have right in the estate of Zamir Ahmed as per the Shariyat Act.
15. Before proceeding on merits, I find that it is necessary to deal with certain legal contentions raised on behalf of the plaintiff. 15.1 The first is with regard to section 2(c) of Hindu Adoption CS No. 613105/2016 No. 33 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 and Maintenance Act being not applicable to Muslims and with that there is no contest.
15.2 Ld. Counsel for plaintiff has also contended that as per section 7 of the Registration of Births and Deaths Act, every birth and death is required to be registered. He has contended that every birth means natural birth and birth in other forms i.e. adoption etc. and therefore, after adopting a child, the registration of birth is necessary under the provisions of section 7 and 8 of the Registration Act. He has further contended that if sections 7 and 8 of the Registration of Births and Deaths Act, 1961 is read together with section 10, the intent of the legislature would be clear that word 'every birth' means so many births except natural birth i.e. it may be adopted birth (sic). 15.3 From this argument, what I can comprehend is, that plaintiff contended that adoption should be considered as re-birth of adopted child and fresh registration of birth is mandatory. 15.4 In my opinion, this is a complete misreading of sections 7, 8 and 10 of the Registration of Births and Deaths Act, 1969. 15.5 Section 7 merely provides that there shall be a Registrar of births and deaths and his duties etc. 15.6 Section 8 provides that who are the persons who are required to given information of births and deaths. The same is as under:-
8. Persons required to register births and deaths. -- (1) It shall be the duty of the persons specified below to give or cause to be given, either orally or in writing, according to the best of their knowledge and belief, within such time as may be prescribed, information to the Registrar of the several CS No. 613105/2016 No. 34 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 particulars required to be entered in the forms prescribed by the State Government under sub-section (1) of section 16, --
(a) in respect of births and deaths in a house, whether residential or non-residential, not being any place referred to in clauses (b) to (e) the head of the house or, in case more than one household live in the house, the head of the household, the head being the person, who is so recognised by the house or the household, and if he is not present in the house at any time during the period within which the birth or death has to be reported, the nearest relative of the head present in the house, and in the absence of any such person, the oldest adult male person present therein during the said period;
(b) in respect of births and deaths in a hospital, health centre, maternity or nursing home or other like institution, the medical officer in charge or any person authorised by him in this behalf;
(c) in respect of births and deaths in a jail, the jailor in charge;
(d) in respect of births and deaths in a choultry, chattram, hostel, dharmasala, boarding-house, lodging-house, tavern, barrack, toddy shop or place of public resort, the person in charge thereof;
(e) in respect of any new-born child or dead body found deserted in a public place, the headman or other corresponding officer of the village in the case of a village and the officer in charge of the local police station elsewhere:
Provided that any person who finds such child or dead body, or in whose charge such child or dead body may be placed, shall notify such fact to the headman or officer aforesaid;
(f) in any other place, such person as may be prescribed. (2) Notwithstanding anything contained in sub-section (1), the State Government, having regard to the conditions obtaining in a registration division, may by order require that for such period as may be specified in the order, any person specified by the State Government by designation in this behalf, shall give or cause to be given information regarding births and deaths in a house referred to in clause (a) of sub-
section (1) instead of the persons specified in that clause.
15.7 A bare reading of section 8 makes it abundantly clear that, in case of births, section 8 refers to the registration of natural births and CS No. 613105/2016 No. 35 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 a fresh registration of date of birth is not required after adoption. 15.8 Similarly, section 10 imposes duty on certain persons to notify births and deaths and cause of death. A bare reading of this section also makes it very clear, that it refers to natural births and no duty is cast upon an adopted parents to notify that they have adopted a child and it should be considered a fresh birth and the said date should be recorded.
15.9 The third contention raised on behalf of the plaintiff is, that as per section 17(3) of Registration Act, authorities to adopt is required to be registered but Ex.DW2/1 which is stated to be an adoption deed, was not a registered document and thus, presumption of adoption u/s 16 of Hindu Adoption and Maintenance Act does not arise. 15.10 First of all, as the parties are Muslims, there is no question of any presumption of Hindu Adoption and Maintenance Act being applied to them. Secondly, section 17(3) does not make registration of adoption deeds compulsory and it is a misreading of section 17(3), if it is being argued that adoption deed was to be compulsorily registered u/s 17 (3) of Registration Act.
15.11 Section 17(3) is as under:-
17. Documents of which registration is compulsory.
(1)...
....
(3) Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered.
15.12 Therefore, it is when a husband gives an authority to his wife to adopt a son under general law, it is the said authority that is CS No. 613105/2016 No. 36 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 required to be compulsorily registered and not the adoption deed.
16. Now let us analyze the evidence led by the parties. 16.1 Analysing the evidence led by the parties, I find that defendant no. 1 had categorically deposed that as they were issueless, she and her husband Zamir Ahmed had adopted a son namely Abdul Samad @ Samir Ahmed for which religious ceremony had also been performed. She also deposed that the said son was admitted to a school and was studying in class IV in Dolphin Public School. The report card and school identity card of that child were collectively exhibited as Ex.DW1/1. She also deposed that birthday of the said child was celebrated by her and her husband during the lifetime of her husband and it was attended by defendant no. 3. She exhibited the photographs of that birthday celebration as Ex.DW1/2 (colly). She further deposed that all the brothers and sisters of her late husband were fully aware about the adoption of minor child Abdul Samad @ Sameer Ahmed. 16.2 Her testimony on these aspects including the exhibition of documents has remained unobjected and unrebutted. 16.3 Her cross examination was centred around the adoption deed. During her cross examination, she produced the original adoption deed which was marked as Mark X and she admitted that this deed of adoption was never registered.
16.4 The second witness is the biological father of child Abdul Samad @ Samir Ahmed, who was purportedly adopted by defendant no. 1 and her late husband.
16.5 If the examination and cross examination of this witness is CS No. 613105/2016 No. 37 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 seen, he had deposed that he had given his child in adoption because he was blessed with twin sons on the same day. He already had a son and a daughter and his sister-in-law Gulzaro Begum and her deceased husband were issueless. He proved the adoption deed vide Ex.DW2/1 and identified his signatures and other signatures on that deed. 16.6 During his cross examination, he denied that all his children were living with him and volunteered, that one child was living with Gulzaro Begum. He also denied that Abdul Samad @ Samir Ahmed was given to Gulzaro Begum only for the purposes of studies and not in adoption and volunteered, that in fact he was given in adoption on 12.04.2006 under a deed of adoption. He admitted that the said document was not a registered document.
16.7 From his cross examination, it emerges that by the indirect suggestion that the child was only given to Gulzaro Begum for the purposes of studies and not in adoption, is at least admitted that the said child was living with Gulzaro Begum wife of deceased husband Zamir Ahmed.
16.8 At the same time, plaintiff, appearing as PW1, during his cross examination though denied that Zamir Ahmed had adopted a child, but stated that he was denying it because it was not mentioned in Shariat. So if this reply is considered, the denial is not of the fact of adoption but is for the reason that adoption is not recognized by Shariat. 16.9 Furthermore, DW4 in his cross examination deposed that he had been paying educational expenses of adopted child of Zamir Ahmed during the lifetime of Zamir Ahmed. Thus, this is indirectly an CS No. 613105/2016 No. 38 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 admission that defendant no. 2 was aware about the factum of adoption of the child by deceased Zamir Ahmed and defendant no. 1. He also admitted that his brother Zamir Ahmed and Gulzaro Begum and his another brother Naseem and his wife Shahida were present in the photograph mark X, which is a part of document Ex.DW1/2 (colly). These are the photographs about which defendant no. 1 had deposed that they were the photographs of the birthday celebration of Abdul Samad @ Samir Ahmed. In these photographs, birthday celebration is being seen where the family is present and it is birthday celebration of an infant, the infant according to unrebutted testimony of defendant no. 1 being their adopted child Abdul Samad @ Samir Ahmed. 16.10 Apart from that, there is an adoption deed Ex.DW2/1 upon which the signatures of deceased Zamir Ahmed, who was adopted father, have been identified by DW2. DW2 had identified his own signatures at point A, signatures of Gulzaro Begum at point C and of Zamir Ahmed at point D on adoption deed Ex.DW2/1. As there is no formal procedure prescribed for adoption, this deed is also an evidence of the factum of adoption. For the same reason that there is no formal procedure prescribed, the contention of plaintiff that this document cannot be considered because it is merely on a stamp paper of Rs.5 is not tenable as it is only to see whether in fact there was an intent to adopt and whether in fact, there was an adoption of child Abdul Samad @ Samir Ahmed by deceased Zamir Ahmed?
16.11 The facts which emerge from the evidence are that defendant no. 1 and deceased Zamir Ahmed had taken the custody of CS No. 613105/2016 No. 39 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 child Abdul Samad @ Samir Ahmed immediately after his birth; that he was uprooted from his biological family and brought to Delhi by defendant no. 1 and Zamir Ahmed; that he was brought up by defendant no. 1 and Zamir Ahmed as their own son; that he was admitted to a school where the name of his father was recorded as Zamir Ahmed; that the said child who since his infancy had stayed with defendant no. 1 and was ten years old (at time of filing of the suit); that the brothers and sisters of the deceased were aware that the said child had been adopted by deceased Zamir Ahmed.
16.12 From the factual matrix, it is very much apparent that deceased Zamir Ahmed being issueless intended to adopt a child possibly so, that he could enjoy fatherhood and had been given a child Abdul Samad @ Samir Ahmed by the parents of Abdul Samad @ Samir Ahmed, soon after his birth; that deceased Zamir Ahmed had brought up this child as his own son, celebrated his birthday without the presence of his biological parents and he had also admitted this child in school mentioning his own name as the father of the child. In absence of any legal provision, this intent of the deceased which is being carried on by his widow, who is bringing up the said child as her own son has to be honoured and respected by this court. At the same time, the court is duty bound to protect the rights of that child who soon after his birth was separated from his biological family and has only known defendant no. 1 and Zamir Ahmed as his mother and father. I accordingly hold that deceased Zamir Ahmed, during his lifetime, had adopted a child Abdul Samad @ Samir Ahmed. This issue is accordingly disposed.
CS No. 613105/2016 No. 40 of 43(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 ISSUE NO. 3
3. If the answer to issue no. 2 is yes, its effect? Onus on parties.
17. Adoption is not necessarily inheritance or succession but it may lead to inheritance or succession. As far as intestate succession of Muslim is concerned, the same is definitely governed by Muslim Personal Law as is mandated by section 2 of Shariat Act. 17.1 However in the present case, it has already been found that deceased Zamir Ahmed had adopted a male child namely Abdul Samad @ Samir Ahmed.
17.2 In view of the earlier discussion, it is also very much clear that deceased Zamir Ahmed had exercised his choice u/s 3 of Shariat Act and had elected not be bound by Muslim Personal Law on the subject of adoption. That being the case, the said adopted son will become his son for all purposes without any restrictions as have been imposed by Shariat and will have all the rights and privileges which his biological son, if he had one, would have had.
17.3 Thus, the effect of the said adoption will be, that while deciding intestate succession of the estate of deceased Zamir Ahmed, court will have to keep in mind that deceased Zamir Ahmed was survived by his widow i.e. defendant no. 1 and son Abdul Samad @ Samir Ahmed.
ISSUE NO. 44. Whether the plaintiff and defendant no. 2 to 9 are entitled to the partition as prayed and if yes, their respective share? OPP.
CS No. 613105/2016 No. 41 of 43(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024
18. As while deciding issues no. 2 and 3, it has been found that deceased Zamir Ahmed is survived by his widow and a son, his inheritance has accordingly to be decided in this light. 18.1 As per Mulsim Law of Inheritance, there are three classes of legal heirs: (1) sharers, (2) residuary and (3) distant kindred. 18.2 It is an admitted position that of the 12 Quranic sharers, only the widow of the deceased is surviving. The claim of the plaintiff and defendants no. 2 to 9 is, that as deceased Zamir Ahmed had no son, his widow i.e. defendant no. 1 is entitled to 1/4th share in the estate of Zamir Ahmed and, they being the brothers and sisters of deceased would have residue of 3/4th where the brothers of the deceased would be getting double the share of the sisters.
18.3 The plaintiff and the defendants no. 2 to 9 could only have inherited from the estate of deceased Zamir Ahmed had there been no son to claim the residuary share.
18.4 However, as it has been held that deceased Zamir Ahmed had an adopted son and the said son has been found to be having the same status as that of a biological son and having all the rights, privileges and responsibilities that are attached to that relationship; for the purposes of inheritance, the said son has to be considered as a son. That being the case, the son being a residuary excludes the brothers and sisters of deceased Zamir Ahmed. This being the case, I am of the considered opinion that plaintiff and defendants no. 2 to 9 are not entitled to the partition as prayed for. Issue is accordingly decided.
CS No. 613105/2016 No. 42 of 43(Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024 RELIEF
19. In view of the above discussion, the suit of the plaintiff is dismissed with cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (PARVEEN SINGH) on 03.02.2024. ADJ-11, Central District, (This judgment contains 43 pages and Tis Hazari Court, Delhi each page bears my signature.) CS No. 613105/2016 No. 43 of 43 (Parveen Singh) ADJ-11/Central/THC/Delhi/03.02.2024