Moot Court Problem 1
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ArjunMOOT COURT PROBLEM 1
BEFORE THE HON’BLE HIGH COURT
CIVIL APPEAL NO : /2020
In the matter of:
Aruna & kaushal ……………………………………………..APPELLANT
V/S
Mala & Balraj ……………..…………………………….RESPONDENT
MEMORIAL SUBMITTED ON BEHALF OF DEFFENDANT 1
Page 2
TABLE OF CONTENTS
LIST OF ABBREVIATIONS…………………………………………..
INDEX OF AUTHORITIES…………………………………………………………………
STATEMENTOF FACTS…………….……………………………………………………..
STATEMENT OF JURISDICTION………..……………………………………………..….
STATEMENT OF ISSUES …………………………………………………………............
SUMMARY OF ARGUMENT.....................................................................…...
ARGUMENTS ADVANCED………………………………………………………….…...
PRAYER……………………………………………………………………….………
Page 3
LIST OF ABBREVIATIONS.
&……………………………………………………..………………………And
AC…………………………………………………………………………..Appeal
Cases AIR………………………………………………………………..All IndiaReporter
App…………………………………………………………………………Appeal
Art………………………………………………………………………….Article
Cl…...…………………………………………….………………………...Clause
Ed…………………… …………………………………………………..Edition
HC……………………… ………………………………………………..High Court
Hon’ble……………… …………………………………………………..Honorable
ibid………………………………………………………………………...Ibidium
ILR.…………………………………………………………………….Indian Law
Reports
LR……..………………………………………………………………..Law Reports
No….……………………………………………………………………..Number
Ors………………………………………………………………………...Others
PC…………...………………………………………………………..…Privy Council
RP…… ……………………………………………………………….Review Petition
SC………………...……………………..……………………………Supreme Court
SCC…..……………………………………….……………………Supreme Court
Cases
SCR………..………………………….…………………………..Supreme Court
Reporter
SLP…..…………………………………………………………….Special Leave Petition
U/A…………………………………………………………………………...Under Article
UOI………………………………………………………………………….…Union of
India
vs.…….……………………………………….…………………………………….Versus
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INDEX OF AUTHORITIES Cases Cited: •
Sawan Ram & Others vs Kala Wanti & Others on 19 April, 1967
Arjan Singh And Others v. Narain Singh And Others . (1963)Scc
Commissioner Of Income-Tax, Bombay v. Bai Ratanbai Gordhandas. Bombay
HC
Lakshmi Ammal v. Meenakshi Ammal And Others
LEGAL DATABASES: 1. All India Reporters. 2. SCC Online. 3. Supreme Court
Judgment Information System. LEXICONS : 1. National Judicial Academy,
Bhopal 2AiyarRamanathan P, Advanced Law Lexicon, 3rd edition, 2005,
Wadhwa Nagpur.
LEGISLATIONS 1. Hindu Adoption and Maintenance Act, 1956. 2. Transfer of
property.
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STATEMENT OF FACTS
Counsel for the Defendent respectfully showeth Arohi was a middle-class,
upper caste Hindu residing in Noida. He married Aruna in the year 1977. Aruna
gave birth to a daughter Mala in 1978, and a son in 1980. They were happy at
the thought that their family was complete. However, in unfortunate turn of
events, their son died in an accident at home when he was two years old. They
were very upset but tried to have another child and with God’s grace, Aruna
gave birth to another son in the year 1983.Looking at his horoscope, the pandit
suggested special ritual to be followed every month for the welfare of this son
till the age of five as there was danger to his life till that time. Despite
observance of the ritual with full reverence by the couple, this son also died in
a road accident just as he turned five years old. The couple was completely
devastated. They were apprehensive that another child may meet the same
fate if they tried for another child. However, they tried and yet another son was
born to them third time in the year 1990. On his naming ceremony, they
consulted the astrologers and were advised to give away that child in adoption
to a person of the lower caste ifthey wanted this child to live. They named him
Kaushal and decided to give him in adoption. Their sweeper, Maina Devi, a 50
year old widow with no children agreed to take the child in adoption and to
give him back to them for his bringing up as she did not have the means to
bring him up. In a formal ceremony Kaushal was given to Maina Devi by Arohi
and Aruna and was taken by Maina Devi. Thereafter, she gave him back to the
couple for bringing him up onher behalf. Maina Devi kept visiting them
regularly and gave something for Kaushal every month till he was ten years
old when she died. In the meanwhile, in the year 1994 another son was born to
Arohi and Aruna and he was named Balraj. The fact of adoption of Kaushal
was treated by Arohi and Aruna as a formality to save his life and he was
brought up by Arohi and Aruna as their son with Mala and Balraj. Arohi died
intestate in the year 2012. Aruna decided to divide the property in four equal
shares, one each for herself, Mala, Kaushal and Balraj. Mala and Balraj
objected to it and demanded 1/3 share in
Page 6
the property as Kaushal had no right having been given in adoption to Maina
Devi. Aruna’s pleas that the adoption was a mere ritual carried out on the
advice of the astrologer to save Kaushal’s life but without any intention
actually to give him up, had no effect on them. They maintained that the
adoption was legal and complete when Kaushal was given and taken in
adoption with a will. Unable to resolve their dispute, Mala and Balraj filed a suit
for division of property and declaration that Kaushal was not an heir to any
property of Arohi in the absence of a will. The lower court decreed in favour of
the plaintiffs. Aruna and Kaushal filed an appeal against the order asking for
an equal share to Kaushal in the suit properties being the natural born son.
They pleaded that the adoption was not valid in the absence of the intention to
really give him in adoption. Alternatively, they pleaded that the adoption was
bad as Aruna’s consent was vitiated having been given under the mistaken
belief that it was a religious ceremony aimed at saving the life of her son. In
addition, it was submitted that an adoption that put the child in situation of
deprivation cannot be held valid and binding being contrary to the principle of
best interest of the child.
STATEMENT OF JURISDICTION
Page 7
The Hon’ble Court has the jurisdiction in this matter under section 104 of CPC.
The Counsels for the Respondent most respectfully submit to this jurisdiction
of the Hon’ble High Court.
Page 8
STATEMENT OF ISSUES
1. WHETHER
THE ADOPTION IS VAILD IN LAW.
2. WHETHER APPLLENT IS ENTITLED TO GET EQUAL SHARE IN PROPERTY
AS CONTEMPLATED UNDER SECTION 12B OF HINDU ADOPTION AND
MAINTAINANCE ACT 1956.
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SUMMARY OF ARGUMENTS
1. WHETHER THE ADOPTION IS VAILD IN LAW.
The adoption is valid as according to Section 6 of Hindu Adoptions and
Maintenance Act 1956 "Requisites of a valid adoption" the person adopting
has the capacity, and also the right, to take in adoption; the person giving in
adoption has the capacity to do and according to Section 11 state that the
child to be adopted was given and taken in adoption by the parents with intent
to transfer the child from the family of its birth as.
2. WHETHER APPLLENT IS ENTITLED TO GET EQUAL SHARE IN PROPERTY
AS CONTEMPLATED UNDER SECTION 12B OF HINDU ADOPTION AND
MAINTAINANCE ACT 1956.
There is no right of appllent to get equal share in property as there was giving
and taking ceremony performed and adoption was executed and after
adoption, the adopted son/daughter lose all the rights of a son/daughter in
their biological family, including the right to claim any share in the estate of
the biological father or relations, or any stake in the coparcenary property.
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ARGUMENTS ADVANCED
1. WHETHER THE ADOPTION IS VAILD IN LAW.
s. 6 read with s. 9 (2) of the Hindu Adoptions and Maintenance Act as the son
was given in adoption by his mother, even though his father
was alive; and (ii) under the Hindu
Adoptions and Maintenance Act, an independent right of adoption is given to
Hindu female and if a widow adopts a son, he becomes the adopted son of the
widow. •
Under the Shastric Law if a child was adopt by a widow, he was treated as a
naturalborn child.
Section 11 (vi) of Hindu adoption and maintenance Other conditions for a valid
adoption, 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 child whose parentage is not known, from the place or family where it
has been brought up] to the family of its adoption
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2. WHETHER APPLLENT IS ENTITLED TO GET EQUAL SHARE IN PROPERTY
AS CONTEMPLATED
UNDER SECTION 12B OF HINDU ADOPTION MAINTAINANCE ACT 1956. •
Hindu family is “formal” and according to the Riwaj-i-am an adopted son is
excluded from the right to inherit in his natural inheritance
after the adoption the adopted son loses all the rights in the natural family and
becomes a member of the adoptive family, and becomes a member of the
adoptive. properties of the joint family prior to the adoption but having regard
to the fact that by an adoption into some other family the adopted person
completely loses all his rights in the natural. Property which he gets from his
natural family subsequent to the adoption could not be treated to be the
ancestral property in his hands.
On adoption the person to whom he is adopted becomes the appellant that
after the adoption the adopted son loses all the rights in the natural family and
becomes a member of the adoptive family, and becomes a member of the
AND
adoptive. Properties of the joint family prior to the adoption but having regard
to the fact that by an adoption into some other family the adopted person
completely loses all his rights in the natural ...property which he gets from his
natural family subsequent to the adoption could not be treated to be the
ancestral property in his hands.
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PRAYER
For the reasons aforesaid, in the light of issue raised, arguments advanced
and authorities cited, it is humbly submitted before this hon’ble court that it
may be pleased to adjudge and declare that •
Keep the writ petition with exemplary costs.
Dismiss the lower judgment of the lower court.
And pass any order, direction or relief that it may deems fit to meet the ends
of justice, equity And good conscience. And for this the Appllent as in duty
bound, shall humbly pray.
