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Showing contexts for: null and void adoption in Rajesh Chandna & Ors. vs Aishani Chandna Mehra on 19 March, 2019Matching Fragments
"12. The question for consideration thus boils down to, whether for having an adoption declared as null and void, and for cancellation thereof, a suit or other proceeding is required to be instituted or even without instituting the suit or other proceeding, the invalidity of the adoption can be set up by way of a claim or defence in a suit or other proceeding, wherever Adoption Deed is cited to deny the claim or to meet the defence."
11. The said issue has been answered by the learned Single Judge in para 26 of the impugned order by observing as follows:-
14. The submission of the learned counsel for the appellants, in substance, is that without first dislodging the said presumption either in an independent proceeding, or in the present suit by claiming a specific relief of declaration, the relief of partition could not have been sought straightaway by preferring the suit in question. The further submission is that the relief of declaration in respect of their registered adoption deed is barred by limitation under Article 57 of the Schedule to the Limitation Act. The respondent/plaintiff could not have got over the said bar of limitation, by not seeking the specific relief of declaration that the adoption deed was null and void.
18. On the other hand, learned counsel for the respondent/ caveator has supported the impugned order. He submits that since the registered adoption deed in question is null and void by force of section 5 of the HAMA-on account of the adopter Mr.Sunil Mehra having a living daughter at the time of adoption, namely, Ms.Shraddha Mehra, it was not essential for the respondent to seek a declaration in respect of this said void adoption.
19. He submits that the learned Single Judge has rightly placed reliance on Prem Singh (supra). He has also relied upon the decision in Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and Others, (2013) 5 SCC 427, on the purport and meaning of a "void" transaction, and on the decision in the State of Maharashtra v. Pravin Jethalal Kamdar (dead) by LRs, (2000) 3 SCC 460, to say that a declaration would not be required in respect of a "void" document/ transaction, and that when possession is sought by the plaintiff, it is the limitation prescribed for the said relief i.e. 12 years, which would be attracted, and not the limitation prescribed for the relief of declaration.
cannot be read as precedent, making it incumbent on a person whose Deed of Adoption is invalid, to institute a suit or other proceeding for having the said invalidity declared.
15. Emphasis of the counsel for the defendant no.1 however was on Mst. Deu supra and on the basis whereof it was argued that it was incumbent on the plaintiff to, within the limitation prescribed in Article 57 of the Schedule to the Limitation Act, 1963, institute a suit to have the adoption deed declared null and void and the plaintiff cannot in this suit for partition prove the invalidity of adoption.