Delhi District Court
Diamond Sharma vs Sanjay Sharma And Ors on 17 September, 2024
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT
JUDGE-05, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS No. 216/2017
CNR No. DLSW010019482017
IN THE MATTER OF:
DIAMOND SHARMA.
D/o Late Mr. Kasturi Lal Sharma
R/o KG III/79, Ground Floor
Vikas Puri New Delhi-110018 ............PLAINTIFF
VERSUS
1. SANJAY SHARMA
S/o Late Mr. Kasturi Lal Sharma
Rio 982, Vikas Kunj
Vikas Puri, New Delhi-110 018
2. HAPPY MALIK
W/o Mr. Rajneesh Malik
R/o A-603, Veena Residency
Plot SD, Sector 22
Dwarka, New Delhi - 110075
3. CGHS CO-OPERATIVE LAND & GROUP HOUSING SOCIETY
LIMITED
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 1 of 48
Vikas Kunj, Vikas Puri
New Delhi-110018 .........DEFENDANT (s)
Date of Institution : 17.02.2017
Date of Arguments : 26.07.2024
Date of Judgment : 17.09.2024
SUIT FOR PARTITION OF PROPERTY
JUDGMENT
INDEX FACTUAL BACKGROUND ..................2
- Written Statement filed by Defendant no.
1; ..................6
- Written Statement filed by Defendant No.
2 ..................7
ISSUES
- Framed vide order dated 18.03.2017 ....................7
- Restructured & renumbered vide order ..................8
dated 25.04.2017
EVIDENCE GIVEN BY PARTIES ...................8
SUBMISSIONS OF THE PARTIES ....................15
ISSUEWISE ANALYSIS & FINDINGS ....................25
- Law on adoption as prescribed under The
Hindu Adoptions and Maintenance Act,
1956; ..................30
- Principle of ut res magis valet quam pereat; ....................32
- Doctrine of Estoppel; ................42
- Additional Issues ....................46
FACTUAL BACKROUND:
1. Case of the plaintiff in brief is that, the plaintiff and defendant no. 1 and defendant no. 2 are children/Class I legal heirs of Late Shri Kasturi Lal Sharma and Late Smt. Sushma Sharma. Defendant no. 3 is a cooperative CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 2 of 48 society where the property being H. No. 982, Vikas Kunj, Vikas Puri, New Delhi-110018 (hereinafter referred as the "suit property") is situated. After the plaintiff was born on 21.11.1984, the biological mother of the plaintiff namely Smt. Hemlata Chadda renounced all rights in 1987 in favour Late Shri Kasturi Lal Sharma and Late Smt. Sushma Sharma. It is further averred that, the plaintiff is adopted daughter of Late Mr. & Mrs. Sharma. It has been further stated that the plaintiff being unmarried, has continued to live and reside in the suit property with her adopted parents and she took good care of her aging parents and for that her mother Late Smt. Sushma Sharma gifted flat no. KG III/ 79, Ground Floor, Vikaspuri, New Delhi -110018 to the plaintiff. The defendant no. 01 being the son of Mr. and Mrs. Sharma, during the life of his parents resided separately with his family at House no. 184, SFS Flats, Sector 01, Pocket I, Dwarka, New Delhi-110018.
2. It is further averred that, defendant no. 2 daughter of late Shri Kasturi Lal Sharma was born out of the first wed lock of Late Shri Kasturi Lal Sharma with Late Smt. Krishna Sharma who was real sister of Late Smt. Sushma Sharma and presently residing with her husband at her matrimonial home. Father of the plaintiff and defendant no. 1 and defendant no. 2 retired as Assistant Director (General) Post & Telegraphic Directorate and from his own funds acquired / purchased the suit property. It has been further stated that father of the plaintiff and defendant no. 1 and defendant no. 2 expired on 03.01.2013 and no division of the property was carried out after his death and Late Smt. Sushma Sharma was designated as nominee with defendant no. 3 viz a viz the suit property by Late Shri Kasturi Lal Sharma during his lifetime. However, the defendant no. 1 added his name in the record as the nominee with respect to the suit property. Late Smt. Sushma Sharma expired on 24.09.2016 intestate as such now the plaintiff and defendant no. 1 and defendant no. 2 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 3 of 48 being the Class I legal heirs of Mr and Mrs Sharma are equal shares in all assets left behind by them.
3. The plaintiff has given the list of immovable properties besides mentioning the suit property in which plaintiff and defendant no. 1 and defendant no. 2 have equal shares which are as follows:
"A. IMMOVABLE PROPERTIES:
982. Vikas Kunj. Vikas Puri, New Delhi-110018: Total area being 124.49 square meters B. MOVABLE PROPERTIES:
I. The following accounts at the Indian Bank, G-27, DDA Community Centre, Vikas Puri, New Delhi-110018:
a) Fixed Deposit No. 6167149244 totaling to an amount of INR 6,00,000/-;
b) Fixed Deposit No. 6167150306 totaling to an amount of INR 5,00,000/-;
c) Fixed Deposit No. 6167151672 totaling to an amount of INR 5,00,000/-;
d) Fixed Deposit No. 963930837 totaling to an amount of INR 10,19,110/-;
e) Fixed Deposit No. 6098709893 totaling to an amount of INR 1,00,000/-;
f) Fixed Deposit No. 6098709677 totaling to an amount of INR 1,00,000/-;
g) Fixed Deposit No. 6098675057 totaling to an amount of INR 1,00,000/-;
h) Fixed Deposit No. 6098709509 totaling to an amount of INR 1,00,000/-;
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 4 of 48
i) Saving Account No. 428712526 totaling to an amount of INR 1,08,000/-;
II. Post Office Savings Account No. 6761421/0297342140 at Post Office, Sansad Marg, New Delhi totaling to an amount of INR 79,536/-; III. All movables in house No. 982, Vikas Kunj, Vikas Puri, New Delhi-
110018 amounting to INR 5,00,000/-."
4. It has been further averred that the plaintiff and defendant no. 1 and defendant no. 2 have withdrawn some of above Fixed Deposits after submitting the various documents recognizing the right of the plaintiff as one of the legal heirs of Mr and Mrs. Sharma. It has been further averred that after the death of Mrs Sushma Sharma, the defendant no. 1 moved into the suit property on the pretext of conveniently performing the last rites of Mrs. Sharma. However, thereafter, defendant no. 1 confined the plaintiff to only one room on the first floor taking over the use and occupation of the entire suit property and after renovation of the suit property, the defendant no. 1 started interfering with the plaintiff occupancy of even one room in the house. It is further averred that, since the plaintiff is legitimately adopted daughter of Late Mr and Mrs Sharma, she is entitled to one third share in their assets and therefore filed the present suit seeking decree of partition in respect the following immovable and movable properties:
"A. IMMOVABLE PROPERTIES:
982. Vikas Kunj. Vikas Puri, New Delhi-110018: Total area being 124.49 square meters B. MOVABLE PROPERTIES:
I. The following accounts at the Indian Bank, G-27, DDA Community Centre, Vikas Puri, New Delhi-110018:
a) Fixed Deposit No. 6167149244 totaling to an amount of INR 6,00,000/-;
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 5 of 48
b) Fixed Deposit No. 6167150306 totaling to an amount of INR 5,00,000/-;
c) Fixed Deposit No. 6167151672 totaling to an amount of INR 5,00,000/-;
II. Post Office Savings Account No. 6761421/0297342140 at Post Office, Sansad Marg, New Delhi totaling to an amount of INR 79,536/-. III. All movables in house No. 982, Vikas Kunj, Vikas Puri, New Delhi-
110018 amounting to INR 5,00,000/-."
(hereinafter referred as 'schedule properties')
5. The summons of the suit were issued to the defendants and they filed their respective written statements on 04.03.2017 and 18.03.2017.
WRITTEN STATEMENT BY DEFENDANT NO. 1:
6. Defendant no. 1 filed his Written Statement contending inter alia that the plaintiff has concealed the material facts from the court and not placed any legally valid document to prove the fact that she is a legally adopted daughter of Late Mrs. Sushma Sharma and Kasturi Lal Sharma and that the suit is not maintainable because the plaintiff has no right to seek partition in the suit properties. It is stated that, the plaintiff was an abandoned child by her real mother and father who was living on the mercy of parents of defendant no.
1. The factum of adoption by parents of defendant no. 1 was denied altogether and it was contended that mother of the plaintiff used to pay to the mother of defendant no. 1 for maintenance of the plaintiff and thus the plaintiff has no right to seek partition in the suit property. With respect to the gift deed, it is stated that since the defendant was busy with his job, the plaintiff took undue advantage of it and got the gift deed executed in respect of the property situated at Vikaspuri clandestinely and shrewdly for which defendant no. 1 has already initiated the legal process for cancellation and for recovery of money. It has CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 6 of 48 been further stated that defendant no. 1 is the only son of Mr. and Mrs. Sharma and plaintiff is not the daughter of late Mr. and Mrs. Sharma and therefore, has no right in the properties mentioned in the suit.
WRITTEN STATEMENT BY DEFENDANT NO. 2:
7. Written Statement was also filed on behalf of defendant no. 2 submitting that the defendants has always recognized and acknowledged the factum of the plaintiff having been adopted by her parents and subsequently, she is agreeable to legitimate and fair division of the assets of her deceased parents which comes to one third division of all assets of Late Mr and Mrs Sharma among legal heirs including the plaintiff.
8. Replication to the written statements of defendants was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
ISSUES :
9. From the pleadings of parties, following issues were framed on 18.03.2017:
i. Whether the plaint discloses no cause of action? OPD ii. Whether the suit is under-valued and proper court fees has not been affixed? OPD 1 to 3 iii. Whether the plaintiff is legally adopted daughter of deceased Mr. Kasturi Lal Sharma and Mrs. Sushma Sharma? OPP iv. Whether the plaintiff is entitled to a decree of partition declaring her to be the owner of 1/3rd share of property bearing no. 982, Vikas Kunj, Vikas Puri, New Delhi-18, as prayed? OPP CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 7 of 48 v. Whether the plaintiff is entitled to permanent decree of partition of all movable and immovable property of the deceased Mr. Kasturi Lal Sharma and Mrs. Sushma Sharma, as prayed? OPP vi. Relief.
10. Thereafter two separate applications u/o XIV Rule 5 CPC filed on behalf of plaintiff and defendant No. 1 wherein plaintiff sought amendment in issue No. iv and v and defendant no. 2 sought framing of additional issue. Record reveals that, vide order dated 25.04.2017 both applications were disposed off and same were re-structured and re-numbered as follows:
(i) Whether the plaint discloses no cause of action? OPD
(ii) Whether the suit is under-valued and proper court fees has not been affixed? OPD 1
(iii) Whether the plaintiff is legally adopted daughter of deceased Mr. Kasturi Lal Sharma and Mrs. Sushma Sharma? OPP
(iv) As to what share the plaintiff and defendant nos.1 & 2 are entitled to in the property bearing no.982, Vikas Kunj, Vikas Puri, New Delhi? (Onus placed on the parties)'
(v) As to what share the plaintiff and defendant nos.1 & 2 are entitled to the movable properties such as FDR etc. of deceased Mr. Kasturi Lal Sharma and Mrs. Sushma Sharma, as prayed? (Onus placed on the parties)
(vi) Relief.
EVIDENCE GIVEN BY PARTIES
11. In support of her case, plaintiff examined six (6) witnesses in all. Ms. Diamond Sharma/plaintiff examined herself as PW1 and tendered her CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 8 of 48 evidence by way of affidavit Ex. PW1/A and has relied upon the plaint filed by her which is Ex.PW1/B as well as following documents:
Sl. No. Particulars of Documents Exhibits/Mark
1. Copy of agreement dated 26.02.1985 between Ex. PW 1/1 Smt. Hemlata Chadha and Mrs. Sushma Sharma (objected to by the Ld. counsel for the defendant as to mode of proof);
2. Copy of document dated 30.01.1987 is marked Ex. PW 1/2 as Ex. PW1/2 (objected to by the Ld. counsel for the defendant as to mode of proof);
3. Colour photographs Mark 1
4. Copies of school identity cards for classes 5th, Ex. PW1/3(a) 6th, 8th and 2nd and Identity cards for (OSR) Vocational College
5. Copies of admit card for Class-10, mark sheet Ex.PW1/3 (b) for class 10, passing certificate for class 10, (colly), (OSR) school evaluation card for term 1999-2000, admit card for class 12, marksheet for class 12, passing certificate for class 12, school character certificate, provisional school certificate, JNU admit card, college provisional/transfer certificate, registration slip-cum admission slip DU, diploma certificate of Airforce Vocational college, salary increment letter from ex-employer, appointment letter from Incentive Travels P. Ltd.. appointment letter from BLS Detectives Ltd., appointment letter from 1- energizer IT services P. Ltd., leave certificate from present employer, five voter slips issued to plaintiff and late Sh. K.L. Sharma and late Smt. Sushma Sharma, intimation to police for loss of PAN card, receipt from vendor, receipt from four vendors
6. Copies of DL, Voter ID Card, CGHS Ex. PW1/3(c) (colly) Beneficiary card (OSR);
7. Copy of affidavit of Late Sh. K.L. Sharma Mark 2
8. Copy of greeting card dated 03.05.1989 is Ex. PW1/4 (OSR) (objected to the mode of proof);
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 9 of 48
9. Copy of letter to CGHS for inclusion of Mark 3 plaintiff as beneficiary for CGHS of Late Sh. K.L. Sharma
10. Copy of receipt issued from CGHS on filing of Ex. PW1/5 (OSR) the said application (objected to the mode of proof)
11. Copy of intimation to police regarding loss of Ex. PW1/6 (OSR) CGHS Card (objected to the mode of proof);
12. Copy of registered gift deed dated 12.06.2013 Ex. PW1/7 (OSR)
13. Copy of lease deed dated 29.01.2016 Ex. PW1/8 (OSR)
14. Copy of death certificate dated 03.01.2013 of Ex. PW1/9 (OSR) Sh. K.L. Sharma
15. Copy of application for drawing off family Ex. PW1/10 (colly) pension wherein plaintiff shown as dependent (OSR) daughter (objected to the mode of proof);
16. Copy of certificate substituting Smt. Sushma Ex. PW1/11 (OSR) Sharma in place of Sh. K.L. Sharma as member of defendant no.3
17. Copy of passbook substituting Smt. Sushma Ex. PW1/12 (OSR) Sharma in place of Sh. K.L. Sharma as member of defendant no.3 i.e. Society
18. Copy of Claim Form signed by Late Mrs. Mark 4 Sushma Sharma, Smt. Happy Malik, Sh.
Sanjay Sharma and plaintiff
19. Copy of death certificate of mother of plaintiff Ex. PW1/13 (OSR) dated 24.09.2016
20. Copy of receipt of claim form and clarification Ex. PW1/14 (OSR) made to Indian Bank pursuant to death of Late Smt. Sushma Sharma PW1 has been cross-examined at length on behalf of the Ld. Counsel for the defendant No. 1 and discharged.
12. Sh. Akash Srivastava, Assistant Branch Manager, Indian Bank, Vikas Puri Branch, New Delhi-18 examined as PW2 who was a summoned witness and brought the summoned record i.e. all accounts held by late Sh. K. CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 10 of 48 L. Sharma and late Smt. Sushma Sharma in respect of FDR no.963930837, 6098709893, 6098675057, 6098709509, 6098709677 and SB No.428712526 and 428712515. Certified copy of the same are Ex. PW2/A (colly). He further identified the receiving of DD no. 077622 dated 17.12.2016 for Rs.5,23,153/- by Capt. Sanjay Sharma (i.e. defendant No. 1 herein) at point A, at page no.105. PW2 has been cross-examined on behalf of the Ld. Counsel for the defendant No. 1 and discharged.
13. Sh. C.L. Sharma, Postal Assistant, Sansad Marg, Head Post Office, New Delhi-110001 examined as PW3 who was a summoned witness. and had brought the documents concerning release of family pension of Sh. K.L. Sharma, PPO no. DH32471, copy of same is Ex. PW3/1 (colly). He also brought the remaining documents which are Ex. PW3/2 (Colly). Another six pages have been photocopied from the original record and submitted which are Ex. PW3/3 (Colly). PW3 has been cross-examined on behalf of the Ld. Counsel for the defendant and discharged.
14. Sh. Bhupinder Singh S/o. Sh. Ghanshyam Singh, R/o. 947, Vikas Kunj, Vikaspuri, New Delhi-110018 is examined as PW4 who was a summoned witness and stated that he had been staying in the abovementioned address from 1987. his house is about 250-300 metres away the house no. 982, Vikas Kunj, Vikaspuri. He further stated that, as per his knowledge Mr. K.L. Sharma, his wife Mrs. Sushma Sharma and their daughter Diamond Sharma were staying in this house. He knew Mr. K.L. Sharma as neighbours do. He had more interaction with Mrs. Sushma Sharma since they both were fond of gardening. PW4 further stated that he know the defendant no.1 Mr. Sanjay Sharma since about 1996-97 when he had helped him in financing a washing machine and at that time, he (Sanjay Sharma) used to stay somewhere else in Vikaspuri. He further stated that thereafter, he had seen him in the locality but CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 11 of 48 he (Sanjay Sharma) did not stay in house no. 982, Vikas Kunj, Vikaspuri. PW4 further stated that he was not aware that Ms. Diamond Sharma was the adopted daughter of Mr. K.L. Sharma and Mrs. Sushma Sharma and after there was a dispute in the family, he got to know the same. In the last 3-4 years, it was Ms. Diamond Sharma who was taking care of Mr. K.L. Sharma and Mrs. Sushma Sharma and there was nobody else staying at their house. PW4 has been cross- examined on behalf of the Ld. Counsel for the defendant and discharged.
15. Sh. Kamlesh Kant Madan, Office Supdt., CGHS, Office of the Additional Director, CGHS (HQ), Sector-12, R.K. Puram, New Delhi-22 was examined as PW5 who was a summoned witness and stated that the office entertains approximately 400 to 500 applications daily for issue of CGHS cards. However, due to shortage of space, maintaining complete record for long period of time is not possible. He further stated that the last available certified true copy concerning family pension to the family Late Mr. K.L. Sharma is produced in court and same is filed on record which is Ex. PW5/1. PW5 has been cross-examined on behalf of the Ld. Counsel for the defendant No. 1 and discharged.
16. Sh. Rahul Nayyar S/o. Sh. S.P. Nayyar, R/o. 967, Vikas Kunj, Vikaspuri, New Delhi-18 is examined as PW6 who was a summoned witness and stated that he was next door neighbour to house no. 982, Vikas Kunj, Vikaspuri, New Delhi and for the last one year, he had been residing at the said address i.e. 967, Vikas Kunj, Vikaspuri. PW6 further stated that, he had purchased this house in the beginning of year 2015 however, thereafter, he got the house completely renovated which took some time i.e. one year. PW6 further deposed that he knew Ms. Sushma Sharma very well and when he started renovation of his house she was very warm to him. She would often look after the work in our absence as a neighbour. PW6 futher states that he CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 12 of 48 also knew Ms. Diamond Sharma i.e. plaintiff and she was the daughter of Mrs. Sushma Sharma who also live in H.No. 982, Vikas Kunj, Vikaspuri, New Delhi. PW6 further stated that to the best of my information, only Mrs. Sushma Sharma, Ms. Diamond Sharma and one maid Ms. Mala used to stay in the said house No. 982 in the year 2015. He know Mr. Sanjay Sharma i.e. defendant no.1 in the suit who is presently staying in H.No. 982, Vikas Kunj, Vikaspuri. PW6 further stated that he met him (Sanjay Sharma) for the first me after the death of Mrs. Sushma Sharma. After the death of Mrs. Sushma Sharma, there was a family feud outside H.No. 982, Vikas Kunj, Vikaspuri when one of the family members shouted that Ms. Diamond Sharma is not part of their family, that is the first time PW6 got to know that Ms. Diamond Sharma was an adopted daughter of Mrs. Sushma Sharma. PW6 further stated that there was no dispute between his brother and wife of defendant no.1, however, there was some friction concerning trimming of trees between the two. Wife of defendant no.1 called the police. They all went to the PS and settled the matter amicably. PW6 further stated that after the death of Mrs. Sushma Sharma, when PW6 returned home from work, Ms. Diamond Sharma was sitting in his drawing room and on inquiry, his wife told him that there house is locked and she is waiting for the others to return. Around the same time, he also learnt that Diamond Sharma was drying her cloths in our house since there was some issue in drying her cloths at her house with her sister-in- law. PW6 further stated that since 1986, he had been staying in Vikas Kunj at H.No. 605, Vikas Kunj, which is owned by his parents. PW6 had heard about Mrs. Happy Malik, who is the sister of the plaintiff but he does not know her. PW6 further stated that he Late Mrs. Sushma Sharma was suffering from old age ailments in the year 2015-16. PW6 further stated that he as far as he is aware Mrs. Sushma Sharma could see properly in the year 2015-16. He further stated that there is a Youth Association in the society which works for the welfare of the society CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 13 of 48 but he was not a member of the said Association. PW6 has been cross- examined on behalf of the Ld. Counsel for the defendant and discharged.
17. Thereafter, plaintiff closed its evidence and the matter was listed for defendant's evidence.
18. In support of its case, defendant no. 1 Sanjay Sharma examined himself only in his defence as DW1 and tendered his evidence by way of an affidavit Ex. DW1/A and relied upon the following documents:-
Sl. No. Particulars of Documents Exhibits/Mark
1. Copy of Aadhar card Ex.DW1/1 (OSR);
2. Medical record of deceased mother of Ex.DW1/2 (colly) defendant no. 1 late Mrs. Sushma Sharma OSR running in pages 45 to 125 (objected to the mode of proof as the page nos.52, 76, 101, 103, 104, 105, 113, 117, 120 & 125 are not the original)
3. Original letter duly acknowledged by the Ex.DW1/3 Vikas Kunj Cooperative Group Housing Society Ltd. bearing the stamp and signature on behalf of the Society dated 19.12.2016 (objected to mode of proof) DW1 has been cross-examined on behalf of the Ld. Counsel for the plaintiff and defendant no. 2 at length and discharged. However, no evidence lead by defendant no. 2 and DE stand closed.
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 14 of 48 SUBMISSIONS ON BEHALF OF THE PARTIES:
19. Ld. Counsel for the plaintiff submitted that, the plaintiff was first taken in by her deceased parents on 26.02.1985 and thereafter, she was formally adopted on 30.01.1987. She further submitted that, there is a continuous trail of documentation establishing that the plaintiff was adopted by Late Shri KL. Sharma and Late Mrs. Sushma Sharma and that it was only the Plaintiff who was residing with her parents, until their death. She further submitted that, the Defendant Nos 1 and 2 lived separately with their respective families i.e. defendant no. 1 with his wife and 4 children & Defendant No. 2 with her husband and 2 children. It is further submitted that it is the Plaintiff who sacrificed whole life as she remained unmarried and did not take corporate jobs despite education so as to take care of her ailing parents and as a result, in appreciation of her love and care, a 1BHK unit was gifted to the Plaintiff by Late Mrs. Sushma Sharma. She further submitted that, it was agreed and understood amongst members of the family that all properties will be equally divided amongst all legal heirs (which included the Plaintiff herein). She further submitted that, after the death Shri KL. Sharma on 03.01.2013, monies held by him were jointly withdrawn by his legal heirs i.e. the Plaintiff and Defendant Nos. 1 & 2, and late Mrs. Sushma Sharma, after filing necessary documentation- affidavits/indemnity bonds recognizing each other as his legal heirs with Bank. It is further submitted that, after the death of Smt. Sushma Sharma on 24.09.2016, same routine was followed where cash/monies held by her were withdrawn by her admitted legal heirs i.e. the Plaintiff and Defendant Nos. 1 & 2 jointly, once again by submitting necessary documentation and also handwritten letter confirming to the Plaintiff being regarded as a legal heir. However, out of greed, the defendant No. 1 clandestinely tried to have the Suit property bearing no.982, Vikas Kunj, Vikas Puri, New Delhi transferred to himself. He surreptitiously moved into the premises on the pretext of CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 15 of 48 convenience in performing late Smt. Sushma Sharma's last rites and thereafter forced the Plaintiff out of the house. When the Plaintiff realized the Defendant No. 1's ill intentions, she filed the present suit.
20. It is further submitted that, the defendant No. 2 in her Written Statement has acknowledged the Plaintiff as a legal heir to the deceased parents; factum of valid and actual adoption of Plaintiff; and the family settlement of equal division of properties amongst all parties/children/legal heirs. However, the Defendant No. 1 took a completely contrary stand to his past conduct.
21. In support of his contentions Ld. Counsel for plaintiff relied upon the following judgments:
a) Kale and Ors. v. Deputy Director of Consolidation and Ors. Civil AIR 1976 SC 807;
b) L. Debi Prasad vs. Tribeni Devi & Ors. AIR 1970 SC 1286;
c) Mumbai International Airport vs. Golden Chariot (2010) 10 SCC 422;
d) Kusum Kumria vs. Pharma Venture (2015) 224 DLT 69;
e) Kamla Rani vs. Ram Lalit Rai (2018) 9 SC 663;
22. Per contra, Ld. Counsel for the defendant no. 1 vehemently opposed the claim made by plaintiff. It is submitted that burden lies on the plaintiff to prove that she is legally adopted daughter of deceased Mr. Kasturi Lal Sharma and Late Mrs. Sushma Sharama and she must prove that the said adoption has been made in accordance with the provisions of Ch II of HAMA 1956 (specifically Sec. 5) . It is also submitted that, it is an admitted fact by the parties that the defendant No. 2 is the daughter of Late Mr. Kasturi Lal Sharma and Late Mrs. Krishna Sharma (elder sister of Mrs. Sushma Sharma) meaning thereby that Mr. Kasturi Lal Sharma was not capable as well as he had no right CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 16 of 48 to adopt the plaintiff as he could not adopt a daughter as the same was prohibited by the provisions of HAMA under section 11 clause (ii). Mrs. Sushma Sharma had no right to adopt then as she was married at the time of alleged adoption. It is further submitted that, plaintiff has also failed to prove that how and under which provision of law her alleged adoption is legally valid and from where she is deriving her rights, because so far as the HAMA is concerned the alleged adoption of plaintiff is barred by the statute because of the aforesaid submissions and so she is not entitled to claim any right as barred by section 5(2) of HAMA. In fact Ex PW-1/2 clearly proves that Ms Hemlata Chadha, the mother and natural guardian of plaintiff voluntarily gave away her daughter/plaintiff herein, for adoption/bringing up to Mrs Sushma Sharma and Mr KL Sharma and has forewear "Any right, claim or share on her behalf in the properties or assets of the family of Mr KL Sharma, existing or to be acquired in future". Further it also does not have the signature of Mr KL Sharma who too was barred from adopting a girl child then and even Smt Shushma Sharma could not adopt then as clause (c) of section 8 of the Hindu Adoptions and Maintenance Act, 1956 prior to amendment in 2010 incapacitated a married woman from taking in adoption merely on the basis of her marital status. Further even during the life time of both Mr K L Sharma and Mrs Shushma Sharma no action was taken by them to legally adopt the plaintiff. It is further submitted that, the plaintiff has also failed to prove that consent had been obtained from both biological parent and adoptive parent which is one of the essential conditions of valid adoption as per Sec. 9 of HAMA.
23. It is further submitted that, the plaintiff has miserably failed to bring on record any evidences to prove that there has been any ceremony of giving and taking between the biological parents and adoptive parents which is very CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 17 of 48 essential for making any adoption valid nor any date and venue has been mentioned in the plaint about the ceremony. The plaintiff has also failed to bring on record any evidence to prove the customs/rituals which were followed at the time of the alleged adoption and further has failed to produce any valid adoption deed registered in any court of law to prove her contentions/averments that she is a legally adopted child. It is further submitted on behalf of defendant no. 1 that a bare reading of Sec 16 of HAMA entails that a presumption by any court can only be drawn when a document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption. It is further submitted that, the burden to prove a valid adoption (as per section 101, 102, 103 of Evidence Act) was heavily on the shoulder of the plaintiff as it is she who is claiming herself to be the legally adopted child and that she has a right to claim her share in the disputed properties. The plaintiff in order to prove the above said averments has produced certain documents to prove that she is a legally adopted child of Defendant no.1's parents, which has got no legal/evidentiary value in eyes of law and is rather in-contradiction to the conditions/principles laid down by the Hon'ble Supreme Court and High Courts as well as the statute i.e. Hindu Adoption and Maintenance Act. Therefore, the present suit is liable to be dismissed.
24. In support of his contentions Ld. Counsel for defendant no. 1 relied upon the following judgments:
a) M. Vanaja vs. M. Sarla Devi MANU/SC/0294/2020;
b) Bhimashya and Ors. Vs. Janabi MANUSC/3363/2006;
c) Dhanraj Vs. Surajbai MANU/SC/0329/1975: AIR 1975 SC 1103;
d) Nilima Mukherjee Vs. Kantanhushan Kosh MANU/SC/0462/2001: AIR 2001 SC 2725;
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 18 of 48
e) Reetika Kaur Vs. Darshan Singh Combow and Ors. MANU/DE/4414/2013;
f) Marimuthu Vs. Pichai Ammal and Ors MANU/TN/2196/2010;
g) Kaliammal & others Vs. K.Mavilsamy 2012-4-L.W.884;
h) N. Jayavel Vs. M. Nallammal MANU/TN/7646/2006;
i) Salekh Chand (Dead) by Lrs. Vs. Satya Gupta and Ors. MANU/SC/7400/2008;
j) Pentakota Satyanarayana & Ors. vs. Pentakota Seetharatnam & Ors.
(2005) 8 SCC 67;
k) Brajendra Singh vs. State of M.P. & Ors. Civil Appeal 7764 of 2001 decided on 11.01.2008 (Hon'ble Supreme Court of India);
l) Lakshman Singh Kothari vs. Rup Kanwar (1962) 1 SCR 477;
m) Lalitha vs. Parameswari and Ors. AIR 2001 Mad 363;
n) V. Ravichandran vs. R. Ramesh Jayaram and Ots. (1998) 3 LW 822;
o) Suma Bawa vs. Kunka Bihari Nayak AIR 1998 ORI 29;
p) Rahasa Pandiani vs. Gokulananada Panda AIR 1987 SC 962;
q) Kishori Lal vs. Mt. Chaltibai, AIR 1959 SC 504
25. On behalf of defendant no. 2, it is submitted that Sh. K.L. Sharma was married to Smt. Krishna Sharma out of which she was born and defendant No. 2 is the biological daughter of late Shri KL. Sharma. It is further submitted that the suit property was purchased and allotted in favour of late Shri KL. Sharma during his lifetime. It is further submitted that after the demise of Smt. Krishna Sharma, Sh. K.L. Sharma got re-married to Mrs. Sushma Sharma who was the real sister of Smt. Krishna Sharma out of which Defendant No.1 was born. Further, it is submitted that on 30.01.1987, Late Sh. K.L. Sharma and Smt. Sushma Sharma adopted Plaintiff as their daughter when she was aged about 3 years and all the parties to the present suit accepted the Plaintiff as their sister. It is further submitted that Shri K.L. Sharma expired on 03.01.2013 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 19 of 48 intestate leaving behind plaintiff, defendant no.1, defendant No.2 and Smt. Sushma Sharma. During his lifetime, the suit property was not transferred and/or relinquished by him in favour of any person whatsoever during his lifetime. Further, Late Sh. K.L. Sharma has left behind FDR's and other movable assets. Therefore, defendant No. 2 being the natural legal heir of Late Shri K.L. Sharma, post his demise is entitled for her share in the suit property and other movable assets of Late Sh. K.L. Sharma.
26. That late Shri KL Sharma, during his life time, had nominated Smt. Sushma Sharma in respect of the suit property as a nominee. However, the said nomination does not in any manner amounts to transfer of title of the suit property rather the same is merely for the purpose of management of the suit property and her status was merely of a 'Trustee'. It is further submitted that on the basis of the said nomination, the society (Defendant No. 3) had only transferred its membership by issuing a certificate in her favour. However, the said certificate does not amount to transfer of ownership of title of the suit property. Further, it is well settled law that in cases of intestate death, the property of the deceased can only be transferred legally by obtaining succession certificate/letter of administration and not otherwise. The membership certificate dated 26.02.2013 issued by Defendant No. 3 post the demise of the original allottee, i.e. late Shri KL. Sharma, is merely for the administrative purpose of the society, for collecting maintenance and other charges etc. and the same was effected merely upon the nomination done by late Shri KL Sharma and not on the basis of any succession certificate which is an administrative procedure adopted by any CGHS. It is further submitted that defendant No. 2 herein has till date not executed any transfer or relinquishment documents pertaining to the suit property in favour of late Smt. Sushma Sharma, as such the title of the suit property still stands in name of late CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 20 of 48 Shri KL Sharma, therefore Defendant No. 2 is entitled to a share in the suit property as per law.
27. It is further submitted on behalf of defendant no. 2 that Smt. Sushma Sharma expired leaving behind Plaintiff, Defendant No.1 and Defendant No. 2 as her only Legal Heirs. Further, it is submitted that post her demise parties to the present suit entered into an oral family settlement wherein it was mutually agreed and discussed that the assets of Late Smt. Sushma Sharma shall be equally partitioned amongst the Plaintiff. Defendant No.1 and 2 i.e. 1/3rd each. Thereafter, in furtherance to the said family settlement, Plaintiff, Defendant No.1 and 2 jointly applied to Indian Bank for claiming the share of Late Smt. Sushma Sharma to be equally distributed amongst her 3 surviving legal heirs i.e. Plaintiff, Defendant No.1 and 2. It is further submitted that Defendant No.2 is entitled to the share in the properties of Late Sh. K.L. Sharma and Smt. Sushma Sharma being their Legal Heir and a decree for partition of the assets of Sh. K.L. Sharma and Smt. Sushma Sharma be passed equally in favour of Plaintiff, Defendant No.1 and Defendant No.2 as prayed for.
28. Ld. Counsel for defendant no. 2 has relied upon following judgments:
a. "Pran Nath Mallick Vs. Netar Prakash Mallick & Ors." 85 (2000) DLT 179;
b. "Priya Nath Mehta Vs. Maju Aggarwal & Ors." 54 (1994) DLT 34
29. In rebuttal, Ld. Counsel for plaintiff submitted that, judgments re- lied upon by defendant No. 1 are not applicable in present matter under the following distinguished facts:
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 21 of 48 S.No. CASE DISTINGUISHING FACTS 1 M. Vanaja vs. M. Sarla 1. L. Debi Prasad (Supreme Court) has Devi (Dead) not been over ruled but merely (2020) 5 SCC 307 distinguished on facts;
2. Objection to Adoption by Defendant, who is alleged Adopted mother herself. Deposed in Court to this effect;
3. Parents of adopted child deceased before act of adoption. Grand mother of adopted child gave the child to Defendant and deposed in Court:
"....Appellant was given to the Respondent and her husband to be brought up. Appellant was not adopted by the Respondent and her husband...";
4. Plaintiff has deposed that she does not have any proof of ceremony of give and take of her adoption. unable to establish the actual adoption;
5. Thus, all parties have denied factum of adoption the adopter, the adoptee and person giving in adoption. The Court questioned the veracity of adoption in itself.
2. Lalitha Vs. It was observed that:` Parameswari and Ors. 1. No documentary evidence will be (26.04.2001 MADHC) sufficient since the very adoption of MANU/TN/0717/2001 a female child before passing of the Hindu Adoptions and Maintenance Act, 1956 was not permissible;
2. The plaintiff is not able to establish the fact that iffere was a caste custom, by which, she was adopted and there is no prohibition female child. in their caste for the ader of a female child.
3. Lakshman Kothari Singh 1 1. Case helps the Plaintiff;
vs. Rup Kanwar 2. No intention to give in adoption' or (22.03.1961- SC) 'take in adoption proved; MANU/SC/0225/1961 3. In Para 25: Court observed:
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 22 of 48 "... The documents filed and the oral evidence adduced in the case establish that the adoptive father did not delegate his power to give the boy in adoption to Moti Singh to Hira Lal and that Moti Singh did not receive the boy as a part of the ceremony of adoption, but only received him with a view to send him to Gurukul..."
4. Nilima Mukherjee vs. 1. Case helps the Plaintiff;
Kanta Bhusan Ghosh 2. Relies on L. Debi Prasad and (17.08.2001 SC): distinguishes with facts as oral MANU/SC/1765/2001 testimonies to establish intention of adoption not adduced.
5. Salekh Chand (Dead) by 1. Adoption of 1928 & Issue of Lrs vs. Satya Gupta and custom of adoption of son of sister. Ors. (04.03.2008 SC) Thus, application of old hindu law; MANU/SC/7400/2008 2. Reliance was placed on the evidence of three witnesses. None of the Plaintiff's witnesses deposed as to veracity of custom, which formed basis of adoption;
3. Contrary statement of witness about who was adopted.
6. Brajendra Singh vs. State Case deciding legality of adoption by of M.P. and Ors. married woman adjudicated prior to (11.01.2008 SC): amendment of 2010 to Section 7 of the MANU/SC/7061/2008 Act.
7. Pentakota 1. Existence of registered will;
Satyanarayana and Ors. VS. 2. Alleged adoptive father himself filed Pentakota Seetharatnam a written statement denying and Ors. (29.09.2005 SC) adoption;
MANU/SC/0819/2005 3. No date or year of adoption is given
8. Nemichand Shantilal Irrelevant as Adoptee above the age of BOMHC) 15 years and married.
MANU/MH/0502/1994
9. Reetika Kaur Vs. Darshan 1. Custody of adoptee never taken.
Singh Combow and Ors. 2. Paras 9 & 14 (25.11.2013- DELHC) MANU/DE/4414/2013 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 23 of 48
10. N. Jayavel vs. M. 1. Case helps the Plaintiff - Para 13. Nallammal (29.11.2006 2. Adoption disputed by adopter MADHC) 3. No intention to transfer custody MANU/TN/7646/2006 4. Adoption claimed within family to the brother of birth father, thus, the factum of taking in adoption could not be established.
5. Material contradictions in deposition of witnesses
6. Paras 17 &18
11. Marimuthu vs. Pichai Irrelevant as deals with Section 16.
Ammal (15.06.2010 1. Adoption challenged by adopter MADHC) and Ors. mother MANU/TN/2196/2010 2. Adoptee was 15 years plus when adoption formalized
3. Contradicting stance by witnesses
4. Case helps the Plaintiff - Para 33 "33. The conduct of the parties after the adoption is also important. The plaintiff must establish that he was living with the adopted parents."
12. Kaliammal and Ors. vs. K. Pending in Appeal before Supreme Mayilsamy and Ors. Court 006512-006513/2016 (30.03.2012 MADHC) Case helps the Plaintiff - Para 22 MANU/TN/1923/2012 1. Adoption of 1954. Thus, application of old hindu law.
2. Para 26: Adoptee given share in properties of natural parents. Ex B1 describes him as son of natural parents.
Thus, no severing of ties with natural family
3. Adoption disproved on account of Ex B1.
4. Insufficient witnesses despite being alive.
5. Documents supporting adoption should not be suspicious.
13. Rahasa Pandiani vs. Adoption dismissed on grounds of Gokulananda Panda AIR suspicion of fraud: existence of 1987 SC 962 & Kishori Lal suspicious circumstances, and vs. Mt. Chaltibai AIR 1959 improbabilities.
SC 504 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 24 of 48
30. Arguments heard. Record Perused.
31. Perusal of record reveals that, defendant No. 1 is contesting party and defendant No. 2 has already given consent in favour of plaintiff while defendant No. 3 is impleaded as Proforma party as no relief is claimed against defendant No. 3. In Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar1 Hon'ble Supreme Court of India explained the concept of necessary and proper party as follows:
"7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively'; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding."
32. Thus, present matter is decided while keeping in view the status of each defendant.
ISSUE WISE ANALYSIS & FINDINGS:
ISSUE NO. 1 - Whether the plaint discloses no cause of action? OPD
33. It is well settled law that, while scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done 1 AIR 1963 SC 786 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 25 of 48 by the defendant since in the absence of such an act no cause of action can possibly accrue.
34. In A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies, Salem2, Hon'ble Supreme Court of India explained the meaning of "cause of action"
as follows:
"12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
35. Main contention of the defendant No. 1 is that there is no cause of action in favour of the plaintiff. Hence, present suit is liable to be rejected. However, plaintiff has set up following cause of action in its plaint:
"24. That the cause of action for the said suit arose on December 23, 2016, when the Defendant No. 1 ousted the Plaintiff from the premises '982, Vikas Kunj, Vikas Puri, New Delhi- 110018'. That the cause of action further arose as recently as when the Plaintiff learnt of the Defendant No. 3's proposed meeting of February 17, 2017. That the cause of action is a continuing one and continues till assets are partitioned and the Plaintiff is provided her due share."2
(1989) 2 SCC 163 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 26 of 48
36. Thus, considering the facts and circumstances of the present case, this court is of the opinion that cause of action lies in favour of plaintiff. Hence present issue is decided in favour of plaintiff.
ISSUE NO. 2 - Whether the suit is under-valued and proper court fees has not been affixed? OPD 1
37. It is well settled law that in suit for partition of property court fees is determine by the Court Fees Act, 1870 while, for the purpose of Suit Valuation Act, 1887 and the Punjab Courts Act, 1918, the value of the whole of the property as determined by Section 3, 8 and 9 of the Suit Valuation Act, 1887 is to be taken into account.
38. Section 8 of the Suits Valuation Act, 18873 provides that where other than those referred to in the Court-fees Act, 1870 Section 7, paragraph v, vi and ix, and paragraph x, clause (d), Court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. Section 94 of the above- referred Act empowers Hon'ble High Court to determine of value of certain suits.
38. Court-fee value and jurisdictional value to be the same in certain suits .Where in suits other than those referred to in the Court-fees Act, 1870 (7 of 1870), section 7, paragraphs v, vi and ix, and paragraph x, clause (d) Court-fees are payable ad valorem under the Court-fees Act, 1870 (7 of 1870), the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same.
4Determination of value of certain suits by High Court. When the subject-matter of suits of any class, other than suits mentioned in the Court-fees Act, 1870 (7 of 1870), section 7, paragraphs v and vi, and paragraph x, clause (d), is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may, with the previous sanction of the State Government, direct that suits of that class shall, for the purposes of the Court-fees Act, 1870, and of this Act and any other enactment for the time being in force, be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf.
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 27 of 48
39. In exercise of powers conferred by Section 9 of Suits Valuation Act, Hon'ble Punjab High Court made following rules which are applicable to Delhi.
'SUITS FOR PARTITION OF PROPERTY Court-fee--(a) as determined by the Court-fees Act, 1870 Value--(b) For the purpose of the Suit Valuation Act, 1887, and the Punjab Court Act, 1918 the value of the whole of the property as determined by Sections 3, 8 and 9 of the Suits Valuation Act, 1887.'
40. It would thus be seen that in view of the rules framed by Hon'ble Punjab High Court under Section 9 of Suits Valuation Act, which admittedly are applicable to Delhi, there can be separate valuations for the purpose of Court fee and jurisdiction. The valuation for the purpose of jurisdiction has to be the value of the whole of the properties subject matter of partition, whereas valuation for the purpose of Court fee would be such as is provided by the Court-fees Act.
41. In present matter, plaintiff is seeking partition and for the purposes of court fees and jurisdiction, the Plaintiff values the Suit as under:
S. No. RELIEF TOTAL VALUATION COURT
CLAIMED VALUATION OF FEES
OF THE
THE RELIEF
ASSETS (@ 1/3
SHARE)
a) For Decree of INR INR INR
Partition into three 1,86,73,500/- 62,24,500/- 62,745/- parts of property 982, Vikas Kunj, Vikas Puri, New Delhi-110018' CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 28 of 48
b) For Decree of INR INR INR Partition into three 16,79,536/- 5,59,845.33/- 7798.49/-
parts of bank
accounts
c) For Decree of INR INR INR
Partition into three 5,00,000/- 1,66,666.66/- 3954.40/-
parts of movables
at '982, Vikas Kunj,
Vikas Puri, New
Delhi 110018'
d) For Decree of INR INR 4296/-
Recovery of 2,00,000/-
Compensation
e) For decree of INR 130/- INR 13/-
permanent
injunction at
prayers (g) and (h)
TOTAL INR
COURT 78,806.89/-
FEES
42. Record further reveals that, during the pendency of present suit and after framing of issues, defendant no. 1 preferred an application for return of plaint u/o VII Rule 10 CPC on ground of pecuniary jurisdiction which was dismissed vide order dared 11.10.2018 by Ld. predecessor of this court. Perusal of said order reveals that, plaintiff stated to have made prayer c w.r.t. Rs. 16,79,536/- in good faith only as she was already in possession of Rs. 5 Lac out of said amount and was ready to relinquished part of the claim. She further given undertaking to not to initiate legal proceedings for prayer no. (c) of the plaint.
43. Further, no evidence brought on record by defendant no. 1 to show that, present suit is undervalued. Thus, considering the facts and circumstance of present matter, this issue is decided in favour of plaintiff.
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 29 of 48 ISSUE NO. 3 - Whether the plaintiff is legally adopted daughter of deceased Mr. Kasturi Lal Sharma and Mrs. Sushma Sharma? OPP
44. At this juncture, it would be imperative to discuss law on adoption as prescribed under The Hindu Adoptions and Maintenance Act, 1956:
a. The Hindu Adoptions and Maintenance Act, 1956 was enacted by Parliament "to amend and codify the law relating to adoptions and maintenance among Hindus". Section 45 gives overriding force and effect to the Act over any text, rule or interpretation of Hindu law or any custom or usage prevalent before the commencement of the Act and over any other law in force immediately before the commencement of the Act insofar as it was inconsistent with the provisions of the legislation. b. Section 6 of the 1956 Act, prescribes the prerequisites for a valid adoption, which are:
"6. Requisites of a valid adoption.-- No adoption shall be valid unless--
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter."
c. Section 86 further provides that the female Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in 5
4.Overriding effect of Act.―Save as otherwise expressly provided in this Act,― (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
6Section 8, Hindu Adoptions and Maintenance Act, 1956:
Capacity of a female Hindu to take in adoption.―Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption: Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband has completely and finally CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 30 of 48 adoption. The consent of her husband has been made mandatory by the proviso to Section 8. Section 9 deals with persons who are capable of giving a child in adoption. The other conditions for a valid adoption are stipulated in Section 11 of the 1956 Act7. One such condition is Section 11(vi) which is as under:
"11. Other conditions for a valid adoption.--... ***
(vi) 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:
Provided that the performance of datta homan shall not be essential to the validity of an adoption."
d. Where the adoption is of a daughter, the condition is more stringent because the adoptive father or mother should not have a Hindu daughter, son's daughter living at the time of adoption.8 renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.7
Section 11, Hindu Adoptions and Maintenance Act, 1956:
Other conditions for a valid adoption.―In every adoption, the following conditions must be complied with:―
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption; (ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption; (iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted; (iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted; (v) the same child may not be adopted simultaneously by two or more persons;
(vi) 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 1 [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: Provided that the performance of dattahomam shall not be essential to the validity of an adoption.8
Section 11(ii) of the HAMA, 1956 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 31 of 48
45. In the matter of adoption of Payal @ Sharinee Vinay Pathak9, issue before Hon'ble Bombay High Court was as to whether a Hindu couple governed by the Hindu Adoptions and Maintenance Act, 1956, with a child of their own can adopt a child of the same gender under the provisions of the Juvenile Justice Act of 2000. The issue raised presents significant ramifications on the entitlement of individuals and couples across the spectrum of religious and social groups in India to adopt children. It was held that, The Juvenile Justice Act, 2000 is legislation of a secular nature. The human tragedies of orphaned and abandoned children straddle social and religious identity. The urge to adopt is a sensitive expression of the human personality. That urge again is not constricted by religious identity. The Court must harmonise personal law with secular legislation. It was further held that, the statute must be construed in a manner that would make it effective and operative on the principle of ut res magis valet quam pereat10.
46. Ld. Counsel for plaintiff submitted that, plaintiff was adopted by her deceased parents on 30.01.1987 and she discharged all duties as a daughter towards her parents and infact remained unmarried/non-working to take care of her ailing parents. It is further submitted that, out of love and affection, Late Smt. Sushma Sharma also gifted one BHK unit to the plaintiff. It is further submitted that, after the death of Sh. K. L. Sharma, plaintiff and defendant no. 1 and 2 and Late Smt. Sushma Sharma jointly withdrawn money hand-by-hand after executing necessary documents i.e. affidavit/indemnity bond etc. and similarly after the death of Late Smt. Sushma Sharma on 24.09.2016, money was withdrawn by the plaintiff and defendant no. 1 and 2. It is further submitted that, after the demise of both parents it is first time that defendant no. 1 raised objection about legitimacy of adoption of plaintiff.
92009 SCC OnLine Bom 1442 10 'Ut res magis valeat quam pereat' is a Latin legal maxim that translates to "let the thing be more valued than it perishes."
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 32 of 48
47. For establishing valid adoption, Ld. Counsel for plaintiff strongly relied upon judgment passed by Hon'ble Supreme Court of India in L. Debi Prasad vs. Tribeni Deyi & Ors.11 wherein Hon'ble Supreme Court of India held as follows:
"In the case of all ancient transactions, it is but natural that pos- itive oral evidence will be lacking Passage of time gradually wipes out such evidence. Human affairs often have to be judged basis of probabilities. Rendering of justice will become impossi- ble if a particular mode of proof is insisted upon under all circumstances. in judging whether an adoption pleaded has be satisfactorily proved or not we have to bear in mind the lapse of time between the date alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned the most important evidence is likely to be that the alleged adoptive, father held out the personning to have been adopted as his son: the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well.'
48. It is submitted that, the doctrine in L. Devi Prasad (Supra) was duly upheld by Hon'ble Supreme Court of India in Kamla Rani vs. Ram Lalit Rai12 wherein it was held that:
"We cannot lose sight of the principle that though the factum of adoption and its validity has to be duly proved and formal cere- mony of giving and taking is an essential ingredient for a valid adopted, long duration of time during which a person is treated 11 AIR 1970 SC 1286 12 (2018) 9 SC 663 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 33 of 48 as adopted cannot be ignored and by itself may in the circum-
stances carry a presumption in favour adoption".
49. Ld. Counsel for plaintiff further relied upon Ex.PW1/2 (Adoption deed dt. 30.01.1987), Ex.PW1/3 (a), Ex.PW1/3(b) and Ex.PW1/3 (c) (School I cards, driving license, Voter ID etc. Ld. Counsel for plaintiff also relied upon gift deed t. 12.06.2013 i.e. Ex.PW1/7. It is submitted that, Late Smt. Sushma Sharma gifted 1BHK to the plaintiff out of love and affection which is unchal- lenged till date.
50. On the other hand, defendant No. 1 strongly objected the claim made by the plaintiff. It is submitted that the burden lies upon the plain- tiff to prove that, she is legally adopted daughter of Late Sh. Kasturi Lal Sharma and Late Smt. Sushma Sharma. Ld. Counsel for defendant strongly relied upon Ex.PW1/2 and submitted that even Ex.PW1/2 clearly proves that Ms. Hem Lata Chadha the biological mother and natural guardian of plaintiff voluntarily gave away her daughter, Ms Diamond, the plaintiff, for adop- tion/bringing up to Mrs Sushma Sharma and Mr KL Sharma and has "forewear any right, claim or share on her behalf in the properties or assets of the family of Mr KL Sharma, existing or to be acquired in future". Further it also does not have the signature of Mr KL Sharma who too was barred from adopting a girl child then and even Smt Sushma Sharma could not adopt then as clause (c) of section 8 of the Hindu Adoptions and Maintenance Act, 1956 prior to amend- ment in 2010 incapacitated a married woman from taking in adoption merely on the basis of her marital status. Further even during the life time of both Mr KL Sharma and Mrs Shushma Sharma no action was taken by them to legally adopt the plaintiff.
51. It is further submitted that, none of the documents relied upon by plaintiff proves valid adoption in her favour hence, cannot be relied upon. It is CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 34 of 48 further submitted that, defendant no. 1 has already challenged the gift deed i.e. Ex.PW1/7 before this court vide CS DJ ADJ 413/18 which is pending for ad- judication and even otherwise it is settled law that gift deed cannot be substi- tuted and considered as a document to prove a valid adoption. That the very essence of a valid adoption is that there has to be a proper ceremony of handing taking between the biological and adoptive parents. It is submitted that the plaintiff on the other hand has miserably failed to bring on record any evi- dences to prove that there has been any ceremony of giving and taking between the biological parents and adoptive parents which is very essential for making any adoption valid nor any date and venue has been mentioned in the plaint about the ceremony. As per defendant no. 1, the plaintiff has also failed to bring on record any evidence to prove the customs/rituals which were followed at the time of the alleged adoption.
52. In Anil Rishi v. Gurbaksh Singh13 Hon'ble Supreme Court of India discussed law on onus and burden of proof in following terms:
"8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"101. Burden of proof. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court pro- ceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between 13 (2006) 5 SCC 558 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 35 of 48 the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
XXXXXX
15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real na- ture thereof is in question. The words "active confidence" in- dicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
XXXXXXX
19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways:
(i) to indicate 9 the duty of bringing forward evidence in sup-
port of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter-evi- dence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
53. This court carefully gone through the entire material placed on record. Admittedly, late Sh. Sushma Sharma or Late Sh. K.L. Sharma never disputed their relationship with the plaintiff during their lifetime. Infact, Ex. PW1/5 i.e. Index Card, CGHS reflects the name of plaintiff as daughter of late Sh. Sushma Sharma and Late Sh. K.L. Sharma. Plaintiff also relied upon Ex. PW1/1 i.e. agreement dated 26.02.1985 wherein her biological mother given plaintiff to Late Sh. Sushma Sharma in care for period of six months i.e. to be renewed/extended by mutual agreement. On perusal of said Ex. PW1/1, this court is also in agreement with the submission made by defendant no. 1 that, CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 36 of 48 said document can not be considered as Adoption Deed by any stretch of imagination as there was no giving and taking ceremony as provided under Section 11 of HAMA. In Rahasa Pandiani (dead) by LR and other vs. Gokula Nanda Panda & Ors14 Hon'ble Supreme Court of India specifically hold that, 'court has to be extremely alert and vigilant to guard against being in ensnared by schemers who indulge in unscrupulous practices out of their lust for poverty and if there are any suspicious circumstances, just propounded of the Will is obliged to dispel the cloud of suspicion, the burden is of one who claims to have been adopted to dispel the same beyond reasonable doubt.'
54. Thus, main point that arise for consideration is whether the plaintiff can claimed as adopted daughter of late Mrs Sushma Sharma and Mr KL Sharma? It is incumbent upon the plaintiff who is claiming to be the adopted daughter of Mr. and Mrs. Sharma to prove said fact of adoption.
55. A plain reading of the Section 6, 7 and 11 of HAMA Act make it clear that compliance of the conditions in Chapter I of the 1956 Act is mandatory for an adoption to be treated as valid. The two important conditions as mentioned in Sections 7 and 11 of the 1956 Act are:
(a) the consent of the husband before a female Hindu adopts a child; and
(b) proof of the ceremony of actual giving and taking in adoption.
56. To prove valid adoption plaintiff strongly relied upon Ex. PW1/2, for sake of clarification same is reproduced herein below:
'I, HEMLATA CHADHA (nee Hemlata Gupta), resident of E-23 A, First Floor, East of Kailash, New Delhi do hereby state as follows:
WHEREAS I am an unmarried mother and while living with one Mr. Surinder Kumar Chadha had given birth to a daughter, Diamond;14
(1987) 2SCC 338 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 37 of 48 AND WHEREAS the aforesaid Mr. Surinder Kumar Chadha had developed symptoms of insanity and has not been cured inspite of treatment at various medical institutions, including the All- India Institute of Medical Sciences, New Delhi;
AND WHEREAS I could not keep the infant with me in the same house while living with Mr. Chadha aforesaid it became necessary for the mental and physical well-being of the infant that she should be kept away from the atmosphere prevailing in my house.
AND WHEREAS I had in these circumstances entrusted the care of the child, Diamond, to Mrs. Sushma Sharma, a Social Worker with 'Saheli (a Women's Resource Organisation) and resident of A-217, Pandara Road, New Delhi-110 003 in February, 1985 initially for a period of six months but as there had been no improvement in the condition of Mr. Chadha and circumstances at my place and Diamond has been maintained, looked after and brought up by the family of Mrs. Sushma Sharma and I have not contributed anything towards her upkeep or medicare till date.
AND WHEREAS I now feel that it will be impossible for me to maintain the child, educate her and give her security of a home in my condition;
NOW, THEREFORE, acting for self and on behalf of my daughter as her mother and natural guardian I voluntarily give away my daughter, Diamond, for adoption/bringing up as their own child to Mrs. Sushma Sharma and her husband Mr. K.L. Sharma, now residing at 982-Vikas Kunj, Vikas Puri, New Delhi-110 018 and relinquish all my claims on, rights over and possession of my daughter Diamond and forewear any right, claim or share on her behalf in the properties or assets of the family of Mr. K.L. Sharma, existing or to be acquired in future.
I further state that I am making the above relinquishment while in possession of sound and disposing mind, all my senses and in excellent health without any coercion, pressure or inducement.
I have signed the above statements in the presence of witness who has also signed in my presence this the 30th day of JANUARY 1987. In token of acceptance of the custody on the above terms Mrs. Sushma Sharma has also signed along with me.
-sd-
(HEMLAZA CHADHA)
-sd-
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 38 of 48 (MRS) SUSHMA SHARMA WITNESS
-sd-
57. Besides Ex. PW1/2, plaintiff relied upon other documents thereby showing and treating plaintiff as daughter of Mr. and Mrs. Sharma. The plaintiff has produced medical card showing the addition of her name by his adopted father as one of the beneficiaries to the Health and Family Scheme. Driving License, Voter Election ID Card, Central Government Health Scheme Card, Marksheet of CBSE and other documents have been placed on record showing the plaintiff to be daughter of Mr. and Mrs. Sharma. It will not be out of place to mention here that the gift deed has also been executed by Smt. Sushma Sharma, the adopted mother of the plaintiff with respect to flat thereby specifically acknowledged plaintiff as her daughter in following terms:
'THIS DEED OF GIFT is made and executed at New Delhi, on this _____ day of June, 2013, by SMT. SUSHMA SHARMA, W/O LATE SH. KASTURI LAL SHARMA R/O FLAT NO. 982, GROUND FLOOR, VIKAS KUNJ, VIKAS PURI, NEW DELHI- 110018, hereinafter called the 'DONOR' of the one part . . .
AND MS. DIAMOND SHARMA D/O I.ATE SH. KASTURI LAL SHARMA R/O FLAT NO. 982, GROUND FLOOR, VlKAS KUNJ, VlKAS PURI, NEW DELHI-110018, hereinafter called the "DONEE' of the other part.
XXXXX AND WHEREAS the Donor has great love and affection to the DONEE, who is her daughter, out of such natural love and affection of gifting of DDA BUILT-UP JANTA FLAT BEARING NO. 79, ON GROUND FLOOR, BLOCK/POCKET-KG-III, SITUATED AT VIKAS PURI, NEW DELHI- 110018, alongwith the freehold rights of the land underneath and all fittings and fixtures of electricity, sanitary and water with its connections, hereinafter called the PROPERTY UNDER GIFT, with all her rights, title and interests unto the Donee.
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 39 of 48
58. Thus, this court of the opinion that, ceremony of actual giving and taking in adoption is duly proved by plaintiff. So far as consent of husband of Late Smt. Sushma Sharma is concerned, it is well settled law that, when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.15
59. Considering the material placed on record, this court is of the opinion that, there was implied consent of Late Sh. KL Sharma in the adoption of plaintiff. Infact, name of plaintiff was included in medical card by his adopted father as one of the beneficiaries to the Health and Family Scheme. Admittedly, after the demise of late Mrs Sushma Sharma and Mr KL Sharma, parties to the suit withdrawn bank and other deposits thereby giving indemnity bond and declaring plaintiff as daughter of late Mrs Sushma Sharma and Mr KL Sharma. However, in his Written Statement, defendant no. 1 accused plaintiff and defendant no. 2 to obtain his signature in blank papers in following words:
'6 That after demise of mother of Defendant No 1, when Defendant No 1 was in state of shock and under depression, after demise of her mother to whom he was very much emotionally connected, Plaintiff and defendant No 2 had in collusion with each other obtained signature of defendant no 1 on some plain papers and fraudulently withdrawn money by misrepresentation and playing fraud and betrayed defendant No 1 and therefore Defendant No 1 has initiated legal process for recovery of said amount from Plaintiff and the defendant No 2.' 15 Section 44 in Bharatiya Sakshya Adhiniyam, 2023 Opinion on relationship, when relevant.
When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (4 of 1869), or in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 40 of 48
60. During his cross examination defendant No. 1/DW1 made following deposition:
' Ex.PW2/A (at page no.73) appears to be in my handwriting, however, after putting my glasses on close examination, it does not seem to be in my handwriting. I do not remember whether I have ever written such letter. as Ex. PW2/ A ( at page no. 73 to the Bank Manager, Indian Bank, Vikas Puri Branch.
Ex.PW2/A (at page no.36 & 37) appears to be in my handwriting however, they are not authored by me.
Ex.PW2/A (at page no.43) appears to be in my handwriting however, it is not authored by me and the same are photocopies only.
Ex.PW2/A (at page no.105) bears my signature at point A however, the mobile number does not seem to be in my handwriting.
I do not recollect whether after the demise of my father in year 2013, the monies in Bank accounts maintained by my father in Indian Bank, Vikas Puri Branch were divided equally between myself, plaintiff, defendant no.2 and my mother. Vol: I wanted my mother to retain the money.
Ex.PW2/A (at page no.18) bears my signature at point X. " - Q:
Please see Ex.PW2/A(at page no.16 to 18). Did you tender this affidavit in Indian Bank? A: I have not tendered this affidavit. I am not sure whether it bears my signature at point Y & Z. Ex.PW2/A (at page no.19-21) i.e Indemnity bond has not been executed by me however, the signatures on the same at points B, C, D appear to be mine.
I cannot admit or deny whether I have ever submitted an indemnity bond executed by me in Indian Bank, Vikas Puri Branch, after the death of my father for claiming the monies held by him with the said bank/branch.
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 41 of 48 XXXXXXX I received the 1/3rd of the moneys held in my deceased mother's name with Indian Bank, Vikaspuri Branch as I was emotionally blackmailed by plaintiff and defendant no. 2.
XXXXXX I was aware that plaintiff was the beneficiary of the CGHS as a dependent of my father. Voltr. She got her name fraudulently entered in the record. I do not recollect the date when I got to know that her name has been fraudulently entered as a beneficiary of CGHS. I have no idea when the same was entered in CGHS records. Again said, the same might have been entered in the year 2011. I did not take any step against the said entry as my father was alive at that time.' (emphasis is mine)
61. Bare perusal of above deposition it is clear that, defendant no. 1 failed to expressly deny execution of indemnity bond. In any case, receipt/withdrawal of bank deposits is not disputed. Thus, objection raised by defendant no. 1 is barred by Doctrine of Estoppel. Section 121 of Bharatiya Sakshya Adhiniyam, 202316 incorporates the meaning of estoppel as when one person either by his act or omission, or by declaration, has made another person believe something to be true and persuaded that person to act upon it, then in no case can he or his representative deny the truth of that thing later in the suit or in the proceedings. In simple words, estoppel means one cannot contradict, deny or declare to be false the previous representation or act done by him. Defendant no. 1 failed to produce any material on record to show that, he ever 16
121. Estoppel.--When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration: A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 42 of 48 disputed his relationship with the plaintiff prior to present proceeding. In fact, suit for mandatory injunction, cancellation/declaration of Gift Deed, Recovery of Possession and recovery of Rs. 19,61,874/- as filed by defendant no. 1 vide CS DJ ADJ 7102/2018 was dismissed as withdrawn vide order dated 28.08.2024
62. On the other hand, defendant no. 2 given statement in favour of plaintiff and acknowledged her relationship as sisters in following terms:
'I am defendant no. 2 in present case and has no objection if present suit is decreed as prayed. I have always treated the plaintiff i.e. Diamond Sharma as my lawful sister. I confirm that it is Diamond Sharma who used to reside at the suit property i.e. 982, Vikaskunj, Vikaspuri, Delhi along with my parents. Diamond Sharma was single handedly taking care of my parents during their last days as I and my brother Mr. Sanjay Sharma, were both living in separate residences along with our respective families.'
63. Thus, considering the facts and circumstances of present matter and in view of well settled principle of law as well as principle of ut res magis valet quam pereat, this court is of view that, Judgment passed in M. Vanaja vs. M. Sarla Devi (supra) is distinguished and plaintiff is legally adopted daughter of deceased Mr. Kasturi Lal Sharma and Mrs. Sushma Sharma. Hence, this issue is decided in favour of plaintiff.
ISSUE NO. 4 - As to what share the plaintiff and defendant nos. 1 & 2 are entitled to in the property bearing no. 982, Vikas Kunj, Vikas Puri, New Delhi? (Onus placed on the parties) ISSUE NO. 5 - As to what share the plaintiff and defendant nos.1 & 2 are entitled to the movable properties such as FDR etc. of deceased Mr. Kasturi Lal Sharma and Mrs. Sushma Sharma, as prayed? (Onus placed on the parties) CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 43 of 48
64. Since, both issues are interrelated are taken simultaneously. Ld. counsel for defendant no. 1 submitted that, at the time of execution of agreement biological mother of plaintiff forewear right, claim or share on Plaintiff's behalf in the properties or assets of the family of Mr. K.L. Sharma, existing or to be acquired in future, as such she has no right, title of claim in the property left by late Mr. K.L. Sharma. However, this court is not inclined to accept plea made on behalf of defendant no. 1 as it is well settled law that, 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 family17. Hence, plaintiff would have equal right, title or interest as other biological child of adoptive parents.
65. Another contention raised by defendant no. 1 is that, he is only child of Late Mr. K.L. Sharma and Late Smt. Sushma Sharma while defendant no. 2 is daughter from the first deceased wife of late Mr. K. L. Sharma. It is submitted that, since defendant no. 1 is nominee for suit property, acquires absolute ownership for the same. However, this court doesn't find any merit in this submission made by defendant no. 1, as Section 8 of Hindu Succession Act, 195618 provides that, the property of male hindu dying intestate shall 17 Section 12 Hindu Adoption and Maintenance Act, 1956 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:
Provided that―
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.18
Section 8. General rules of succession in the case of males. The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:--
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 44 of 48 devolve firstly, upon the heirs, being the relatives specified in class I of the Schedule which includes surviving sons and daughters. Hon'ble Supreme Court of India in Vineeta Sharma v. Rakesh Sharma and Ors19 also clarified the entire position w.r.t. daughter's right. Hence, it is clear that the daughters have right in coparcenary by birth and it is not necessary that the father of coparcener should be living when the Hindu Succession (Amendment) Act, 2005 came into force. Further, the conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.
66. Further, It is well settled law that nominee is merely a custodian and benefit after death of employee conferred to the Legal heirs only. In the matter of Shipra Sen Gupta vs. Mridul Sengupta and Ors20 Hon'ble Supreme Court of India held as follows:
'17. The controversy involved in the instant case is no longer res integra. The nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession.
xxxxxx
19. In view of the clear legal position, it is made abundantly clear that the amount in any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with law of succession governing them. In other words, nomination does not confer any beneficial interest on the nominee. In the instant case amounts so received are to be distributed according to the Hindu Succession Act, 1956. The State Bank of India is directed to release half of the amount of
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
19(2020) 9 SCC 1 20 (2009) 10 SCC 680 CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 45 of 48 general provident fund to the appellant now within two months from today along with interest.'
67. In the present case, it is not disputed that defendant no. 1 and defendant no. 2 are Class-I LR of Late Sh. Kasturi Lal Sharma and thus, court already given finding favour of plaintiff as legally adopted daughter of deceased Late Sh. Kasturi Lal Sharma and Late Smt. Sushma Sharma. Thus, plaintiff and defendant no. 1 and 2 are held entitled for equal 1/3rd share in movable and immovable properties, deposits etc. left by their parents. These issues disposed of accordingly.
ADDITIONAL ISSUES:
68. It is well settled law that, under Order XIV Rule 5 of CPC21, the trial court can at any time before passing a decree, frame an additional issue on such terms as it deems fit as may be necessary for determining the matters in controversy between the parties. Present suit was filed by plaintiff seeking partition. However, vide order dated vide order dated 25.04.2017 issues were re-structured and re-numbered as follows:
(i) Whether the plaint discloses no cause of action? OPD
(ii) Whether the suit is under-valued and proper court fees has not been affixed?OPD 1
(iii) Whether the plaintiff is legally adopted daughter of deceased Mr. Kasturi Lal Sharma and Mrs. Sushma Sharma?OPP 21 Order XIV Rule 5 CPC: Power to amend and strike out, issues.-- (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 46 of 48
(iv) As to what share the plaintiff and defendant nos.1 & 2 are entitled to in the property bearing no.982, Vikas Kunj, Vikas Puri, New Delhi? (Onus placed on the parties)'
(v) As to what share the plaintiff and defendant nos.1 & 2 are entitled to the movable properties such as FDR etc. of deceased Mr. Kasturi Lal Sharma and Mrs. Sushma Sharma, as prayed? (Onus placed on the parties)
(vi) Relief.
69. But, in considered opinion of this court, since subject matter of present dispute included immovable property, once shares are determined partition decree has to be drawn as per share of the parties.
70. Thus, to final adjudicate all disputes between the parties in realistic manner issues w.r.t. partition are to be framed as follows:
Additional issue No. 1: Whether plaintiff is entitled for preliminary decree of partition as per share determined by this court? OPP Additional issue No. 2: Whether Plaintiff is entitled for final decree of partition in terms of preliminary decree? OPP
71. Since above issues are interlinked, both are taken simultaneously. This court carefully gone through entire material on record to adjudicate above issues and in view of above discussion share of parties are determined as follows:
Plaintiff: 1/3rd Share;
Defendant no. 1: 1/3rd Share;
Defendant no. 2: 1/3rd Share;
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 47 of 48 Additional issue No. 1 disposed off. Preliminary decree sheet be prepared accordingly.
72. However, unless the suit property is partitioned by metes and bounds, final decree qua the partition as per the share of the parties as determined in preceding para cannot be granted at this stage. Hence, to ascertain whether suit property is partitionable by metes and bounds, this court deems it fit that an opportunity should be granted to the parties to devise a method as to how best the suit property can be partitioned by metes and bounds after consulting with each other. For this purpose, time is granted to the parties to explore the possibility of partitioning the suit property by metes and bounds effectively and apprise the same to the court.
73. Put up for further proceedings on 24.09.2024.
Digitally signed by SHILPI M SHILPI JAIN
Announced in open court
on 17.09.2024
M JAIN Date:
2024.09.17
16:21:35 +0530
(SHILPI M JAIN)
District Judge-05, South West District
Dwarka Courts, New Delhi
CS No. 216/17 Diamond Sharma Vs. Sanjay Sharma & Ors. Pg. no. 48 of 48