BEFORE

THE HON’BLE HIGH COURT OF KARNATAKA

Aruna & Ors. Petitioner

V.

Mala & Ors. Respondent

UPON SUBMISSION TO THE HON’BLE JUDGES OF HIGH

COURT OF KARNATAKA

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT 2

 TABLE OF CONTENTS

Table of Content......................................................................................... 1
Index of Abbreviations.............................................................................. 2
Index of Authorities................................................................................... 3
Statement of Jurisdiction.......................................................................... 4
Statement of Facts..................................................................................... 5
Statement of Issues.................................................................................... 7
Summary of Arguments............................................................................ 8
Arguments Advanced................................................................................ 9
Prayer......................................................................................................... 12

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 Index of Abbreviations

1. A.C - Appellate Case

2. A.I.R – All India Reporter

3. Bom.- Bombay

4. Const – Constitution

5. HAMA- Hindu Adoption and Maintenance Act, 1956

6. M.P.L.J – Madhya Pradesh Law Journal

7. Ors. – Others

8. Pet’r – Petitioner

9. Sec- Section

10. SC- Supreme Court

11. S.C.C – Supreme Court Cases

12. V. - Versus

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 Index of Authorities

Statues

1. Constitution of India, 1950

2. Hindu Adoption and Maintenance Act, 1956

3. Hindu Succession Act,1956

Cases

1. Anjirabai Gulabrao Powar vs Pandurang Balkrishna Powar A.I.R 1924 Bom. 441

2. Balu Sakharam Powar vs Lahoo Sambhaji Tetgura AIR 1937 Bom 279

3. Chandan Bilasini vs Aftabuddin Khan 1996 AIR 591

4. Chandra v. Gojarabii (1830) 14 Bom. 463

5. Sawan Ram and Others v/s Kala Wanti & Ors AIR 1967 SC 1761

6. Shrinivas Krishnarao Kango vs Narayan Devji Kango And Ors 1954 AIR 379

7. Tahsil Naidu & Anr vs Kulla Naidu & Ors 1970 AIR 1673

8. Vasant v. Dattu A.I.R. 1987 S.C. 398

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 STATEMENT OF JURISDICTION

It is humbly submitted before the honourable High Court of Karnataka that the court

has the jurisdiction to maintain this case under the Appellate Jurisdiction explicitly of

Civil Jurisdiction which includes orders and judgements of the district court, civil district

court and subordinate court.

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 STATEMENT OF FACTS

1. Arohi was a middle-class, upper caste Hindu. 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.

2. 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.

3. 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 if they 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.

4. 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
on her 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.

5. 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.

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 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.

6. Mala and Balraj objected the division decision and demanded 1/3 share in 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 free 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.

7. 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.

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 STATEMENT OF ISSUES

1. Whether the adoption of Kaushal was valid and still applicable during
the division of property or not?

2. Whether Kaushal has a right for the property or not?

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 SUMMARY OF ARGUMENTS

1. Whether the adoption of Kaushal was valid and still applicable during the
division of property or not?

The respondent humbly submits before the hon’ble court that the adoption of Kaushal to
Maina Devi was applicable during the division of property as the Sec 9 of The Hindu
Adoption and Maintenance Act, 1956 states the authority or the capability of persons who
can give in adoption. The Sec 9(1) explicitly states that “No person except the father or
mother or the guardian of a child shall have the capacity to give the child in adoption.”

2. Whether Kaushal has a right for the property or not?

The respondent humbly submits before the hon’ble court that Kaushal does not have the
right for the property which will be inherited by heirs of Arohi as Kaushal was gave for
adoption to Maina Devi and the adoption was valid and still applicable during the division
of the property that was intended to be inherited by the legal heirs of Arohi.

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 ARGUMENTS ADVANCED

1. Whether the adoption of Kaushal was still applicable during the division of
property or not?

The respondent humbly submits before the hon’ble court that the adoption of Kaushal to
Maina Devi was applicable during the division of property as the Sec 9 of The Hindu
Adoption and Maintenance Act, 1956 states the authority or the capability of persons who
can give in adoption. The Sec 9(1) explicitly states that “No person except the father or
mother or the guardian of a child shall have the capacity to give the child in adoption.”

In the current situation Arohi and Aruna were the father and mother of Kaushal respectively
and they had the authority to give Kaushal for adoption vested on them by the Sec 9 of
HAMA. Therefore, Arohi and Aruna had the legal right to give Kaushal for adoption

The Sec 8 of HAMA explicitly states the capacity of a female Hindu to take in adoption
and states that “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 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.

Therefore, acc to this section Maina Devi had all the required legal requisites to take
Kaushal for adoption and hence the adoption was done with respect to all the legal rules.

For inference we take the case of Sawan Ram and Others v/s Kala Wanti & Ors1 wherein
the respondent was the adopted son of the deceased widow who had adopted him after the
death of her husband. After the death of the widow the appellant the nearest reversioner of
her husband filed a suit challenging the adoption for possession of the land. The contentions
of the appellant was that the adoption of the respondent was invalid.

1
AIR 1967 SC 1761

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The judgement held by the court was that the respondent was adopted by both the widow
and her deceased husband as well.

Therefore, we can conclude by stating that provision in Section 12 of the HAMA makes it
clear that when a Hindu female who has been married adopts a son, the adopted son
becomes the adopted son of her husband as well. The child adopted by a widow will be
considered to be adopted son of the deceased spouse. Hence, in the current situation
Kaushal was the adopted son of Maina Devi and the adoption was valid and applicable.

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 2. Whether Kaushal has a right for the property or not?

The respondent humbly submits before the hon’ble court that Kaushal does not have the
right for the property which will be inherited by heirs of Arohi as Kaushal was gave for
adoption to Maina Devi and the adoption was valid and still applicable during the division
of the property that was intended to be inherited by the legal heirs of Arohi.

The Sec 12 of Hindu Adoption and Maintenance Act, 1956 explains the effects of
adoptions and states that the 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.”

Therefore, according to the Sec 12 of The Hindu Adoption and Maintenance Act, 1956,
Kaushal was and is son of Maina Devi and has the legal right to inherit any property which
belonged to Maina Devi or her deceased husband but the property which belonged to his
previous parent cannot be inherited by him as the adoption leads to the severing up all the
ties b/w him and his previous family.

For inference we can refer to the case of Shrinivas Krishnarao Kango vs Narayan Devji
Kango And Ors2 wherein it was held by the court that in cases where a child was adopted,
the effect of adoption is such that it creates a legal fiction and the child becomes the natural
heir. Where an adoption is such that it relates back and makes him eligible for all the rights
of a son from the date of death of the Father.

It was further held that the effect of adoption is such that the son becomes eligible for the
share in the properties of the adoptive father. But where a claim is made for the properties
of someone else then the rule of adoption back is not followed. The rule which is followed
in such cases is that the property which is one vested in someone cannot be divested.

Therefore in the current case Kaushal is adopted son of Maina Devi as stated in issue 1 and
he does not have any kind of legal right to inherit the property belonging to Arohi and his
legal heirs.

2
1954 AIR 379

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 PRAYER

In the light of arguments advanced and authorities cites, the respondents humbly submits before
the hon’ble High Court that it may be pleased to adjudge and declare that:

1. Kaushal’s adoption was valid and applicable, and

2. Kaushal does not have right for the property to be inherited by Arohi’s heirs

Or

Pass any other judgement as it deems fit in the interest of Equity, Justice and Good
conscience.

Sd/-

(Counsel for the RESPONDENT)

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