This is a new moot memorial

Aruna & kaushal ……………………………………………..APPELLANT 

Aruna & kaushal ……………………………………………..APPELLANT V/S Mala &

Balraj ……………..…………………………….RESPONDENT

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

Page 2 of 12

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 of 12

LIST OF ABBREVIATIONS.

&…………………………………………………………………..………………………And
AC…………………………………………………………………………………..Appeal
Cases AIR…………………………………………………………………………..All India
Reporter
App………………………………………………………………………………………
Appeal
Art……………………………………………………………………………………….Article
Cl…...………………………………………………………….
………………………...Clause
Ed………………………………………………………………………………………..Editio
n HC……………………………………………………………………………………..High
Court
Hon’ble……………………………………………………………………………..Honorable
ibid……………………………………………………………………………………...Ibidiu
m 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

Page 4 of 12

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.

Page 5 of 12

STATEMENT OF FACTS Counsel for the Petitioner 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 of 12

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. 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

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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.

STATEMENT

OF ISSUES

Page 8 of 12

1. WHETHER

THE ADOPTION IS VAILD IN LAW.

2. WHETHER RESPONDENT IS ENTITLED TO GET EQUAL SHARE IN

PROPERTY AS CONTEMPLATED UNDER SECTION 12B OF HINDU ADOPTION
AND MAINTAINANCE ACT 1956.

SUMMARY

OF

ARGUMENTS

Page 9 of 12

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 RESPONDENT 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 respondent 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.
ARGUMENTS ADVANCED 1. WHETHER THE ADOPTION IS VAILD IN LAW.

Page 10 of 12 •

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

2. WHETHER RESPONDENT 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

Page 11 of 12 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.

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 •

Dismiss the writ petition with exemplary costs.

Keep the lower judgment of the lower court.

Page 12 of 12 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 Respondent as in
duty bound, shall humbly pray.

Respectfully submitted on behalf of the Respondent

Contact information

Ronald F. Clayton
 [email protected]

 Address:
 46748 Colby MotorwayHettingermouth, QC T3J 3P0

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