Full Text
SAHIB SINGH Appellant
Through : Mr. J.P. Sengh,Sr. Adv. with Mr. J.S. Bhasin,Ms. Rashmi Priya and Ms. Ankita Gupta,Advocates.
Through : Mr.Jagjit Singh and Mr. Bhagat Singh, Advs. for R- 1 to R-4.
Mr.Jagbir Singh,Adv.for R-5.
HON'BLE MR JUSTICE VIPIN SANGHI SANJAY KISHAN KAUL.J.
JUDGMENT
1. The appellant filed a suit, being CS (OS) No. 2622/2008, for partition, mandatory injunction,declaration and rendition ofaccounts agamst the respondents. The appellant claimed that he was the son of late Sardar Amarjeet Singh. Respondent No. 1 is his natural mother, while respondent No. 2 is his brother and respondent No.3 the sister. Late Amarjeet Singh is stated to have passed away on 23.03.2007 intestate leavmg behmd movable and immovable properties m which the appellant had undivided interest. The FAO(OS)Nos.444-445cf20II ~ Page 1cf20 2013:DHC:6922-DB 'r amounts being realized from the properties are stated to have been personally appropriated by respondents No.2to[4]
2. RespondentNo,5,namely,Sardar Jagbir Smgh,isthe real brother of late Amarjeet Smgh. He is stated to have had no issue from his wedlock which resulted m a mutual understandmg / settlement between late Amarjeet Smgh and him that late Amarjeet Smgh would give the custody ofhis child to his brother/respondent No.5, who shall look after him and m case a child is bom from the wedlock of Sd. Jagbir Smgh and his wife withm 7 years,then the custody of the child(appellant herem)would revert back to late Amarjeet Smgh for all intents and purposes. An Adoption Deed / Settlement dated 01.12.1984 IS stated to have been executed between the parties. Sd. Jagbir Smgh was blessed with the child on 04.04.1990 and,thus,the custody of the appellant is stated to have reverted back to late Amarjeet Smgh and a document called ''Cancellation ofAdoption Deed Dated 01.12.1984''' was also executed between the parties on 11.08.1991. It IS m view thereofthat the appellant clauns that he has all right,title and mterest m the estate oflate AmarjeetSingh.
3. Insofar as respondent No. 4 is concerned, the allegation is that he was brought up by respondent No. 1 (his mother)allegmg him to be her brother, but later transpired that respondent No.4 was actually her son from a marriage with one Sd. Jagbir Smgh Waha This, m fact,resulted in late Amarjeet Smgh,dunng his lifetime, mstitutmg a petition for declaration ofhis marriage null and void on the ground that his spouse had a subsistmg earlier marriage, but that issue was resolved between respondent No. 1 and late Amarjeet Smgh. Respondent No. 4 is alleged to have never been adopted by late Amarjeet Smgh and,thus, it is pleaded that he had no nght,title or mterestin the suit properties. FAO(OS)Nos.444-445of2011 Page 2of20
4. The appellanthas alleged thathe came to know in October,2008that respondent No. 4 had filed a suit for declaration and mandatory injunction agamst the legal heirs of late Amarjeet Smgh excludmg the appellant alleging that he was the son of late Amarjeet Smgh. The suit IS stated to be collusive and m the suit, some oral Family Settlement dated 23.04.2007 was pleaded. The name ofthe appellant did not figure in the said Family Settlement alleged to have been executed between respondentNo.4 on the one hand and respondents No. 1 to 3 on the other. The objective is alleged to be to deprive the appellant of his due share and, thus, he has claimed that the Memorandum of Oral Family Settlement dated 2304.2007 be declared null and void and not enforceable agamst the appellant. However,no reliefis claimed agamstrespondent No.5.
5. Respondents No. 1 to 4 filed a common written statement allegmg that the whole cause of action of the appellant was based on the premise of the adoption bemg cancelled m the year 1991 and the appellantrevertmg back to his natural parents. The cancellation was denied though givmg m adoption was accepted. The appellant is stated to have become a child ofhis adoptive father/respondent NO. 5 with severance of relationship with his natural family. Thus,no adoption,which has been validly made,could be cancelled in law by the adoptive father or mother.
6. The estate of late Amarjeet Smgh, on his passmg away on 23.03.2007, IS stated to have been distributed amongst all his legal heirs m accordance with law, which have received the imprimatur of judicial proceedmgs and have been accordmgly enjoyed. It is also specifically denied that Sardar Navdeep Smgh wasnotthe son oflate Amarjeet Smgh. The allegations are stated to be defamatory of respondent No. 1 FAO(OS)Nos.444-445of2011 ^0/20
7. The written statement separately filed by respondent No,5 alleges that the adoption was really an agreement With the mtention thatthe wife ofrespondent No.5 may conceive and was not to transfer the appellant permanently to the family of respondent No. 5. Respondent No. 5 did not msist on carrying out changes m the official record and the appellant contmued to reside with the grandmother m the house ofrespondentNo.5even afterthe death of late AmaijeetSingh.
8. The appellant,at the stage ofinstitution ofthe suit,had also filed an application,bemg lA No. 15524/2008,under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short, 'the said Code'). However, no ad mterim ex-parte order was granted and notice was issued in the application while issumg summons m the suit.
9. Respondents No. 1 to 4 moved an application, being lA NO. 130/2009,under Order VII Rule 11 read with Section 151 ofthe said Code for rejection ofplaint on the ground that the plaint as framed was barred by law as there could not be any reversion of adoption. This application wasdecided by the learned Smgle Judge vide Order dated 11.122009. This application wasopposed by the appellant on the ground that clause 2 of the Adoption Deed dated 01.12.1984 referred to the reversion ofadoption on the birth ofa child outofthe wedlock ofrespondentNo.5 and his wife,which readsas under:
FAO(OS)Nos.444-445of2011
10. This was followed up with the Memorandum of Settlement dated 01.11.1988,which once agam reiteratesthe said assurance Reliance IS also placed on the document dated 11.08.1991 styled as "Cancellation ofAdoption Deed Dated 01.12.1984'on account of respondent No.5 and his wife givmg birth to a son on 04.04.1990 and consequently cancelling the said Adoption Deed.
11. Learned Smgle Judge opmed m the last paragraph,i.e., paragraph 7 of the Order dated 11.12.2009 that while the stand m law of respondents No. 1 to 4 of their being no reversion possible of an adoption IS correct,butthe Courtcannot be obliviousto the conduct of parties and while adjudicating an application under Order VII Rule 11 ofthe said Codeconfmesitselfto the averments made m the suit and the list of documents. Learned Single Judge opmed that those documents do not unambiguously suggest that there is clear and valid adoption as is understood m law(withoutreference to any document particularly), but that ultimately it is possible that the Court might agree with the respondents on interpretation placed on clause(1)thatthe subsequentstipulation m the Adoption Deed must be disregarded. The application was consequently rejected. Respondents No. 1 to4laid afurther challenge byfilmgFAO(OS) No. 51/2010, which was, however, dismissed as withdrawn on 19.01.2010.
12. The hearmg on the application for interim relief being lA NO. 15524/2008 was subsequently taken up and the said application as well as another unnumbered application under Order XL Rule 1 of the said Code have been dismissed vide the impugned Order dated 03.12.2010. Learned Smgle Judge m the impugned Order has observedthatthere weretwoquestionsarismgforconsideration,i.e., (i)thevalidityoftheadoptionoftheplaintiffon01.12.1984,and Page 5of20 (ii)the validity ofthe cancellation ofthe adoption on 11.08.1991. It has also been noticed that the validity ofthe adoption was never assailed in the plaint, but the objection has been raised,for the first time,only m the replication.
13. Learned Single Judge has opined thatprimafacie the objection to the Adoption Deed dated 01.12.1984 was unsustamable as the condition contained in the Adoption Deed was contrary to law and could not invalidate the valid adoption. Thelaw is stated to be well settled qua the second issue by Sections 12 and 15 ofThe Hindu Adoptions and Mamtenance Act, 1956(heremafter referred to as,'the said Act')- Section 12 providing that the child would be a child ofthe adoptive father or mother,while Section 15 providmg that no adoption can be cancelled bythe adoptive father or mother
14. The basic contention raised at the stage ofadmission ofthe appeal was that there have been two distmct opmions rendered by two learned Single Judgesquathe Adoption Deed-one whileexammmg application under Order VII Rule 11 ofthe said Code favounng the appellant, while the other was vide the impugned Order dated 03.12.2010 while decidmg the applicationsfor mterim relief
15. Learned senior counsel for the appellant has assailed the impugned Order dated 03.12.2010 on the ground thatthe Adoption Deed dated 01.12.1984 does not meet the requisite parameters of a valid adoption deed as it is not signed bythe two mothers. It is stated to be aconditional adoptionfollowed bythe Family Settlementlabeled as a Memorandum of Settlement dated 01.11.1988 and smce the natural child was bom out ofthe wedlock ofrespondent No.5 and his wife,the Adoption Deed was cancelled on 11.08.1991 in terms whereofthe adoptive parents have no right over the adoptive child bemg their child. It is, however, not disputed that the name of Page6of20 respondent No.5 continued to be used as the father due to love and affection even after the appellantreverted back to hisfamily ofbirth, especially as the brothers had very cordial relationship. The Adoption Deed is pleaded to be in the nature ofa Family Settlement not meeting the essential requirements of an Adoption Deed and, thus,wascapable ofbeing cancelled as wasdone.
16. Learned senior counsel for the appellant submitted that as per Section 11(vi)ofthe said Act,the child to be adopted must actually be given and taken m adoption with intent to transfer the child from the family ofhis birth to the family ofhis adoption. In the facts of the present case, it was submitted, smce respondent No. 5 was issueless, the appellant had to revert back to the natural family in case the child was bom. Leamed senior counsel has placed reliance on the judgment of the Supreme Court m Ghisalal v. Dhapubai (Depidl Rv L.R.S and Others, 2011 (1)SCALE 325 to support his arguments that while dealing with the requisites ofa valid adoption, the Court cannot presume consent ofthe wife simply because she was presentatthe time ofadoption.
17. Lastly, leamed senior counsel for the appellant has sought to draw strength from the observations made by leamed Smgle Judge while deciding the application under Order VII Rule 11 ofthe said Code vide Order dated 11.12.2009 castmg doubts on the validity of the adoption and the appeal thereby havmg been withdrawn on 19.01.2010
18. Leamed counsel for respondents No. 1 to 4, on the other hand, emphasized that the appellant was only one and a halfmonths old when he was adopted by respondent No. 5 and his wife m the presenceofrelativesandotherpersons. Theentireschoolrecordsof the appellant show that the appellant was the son ofhis adoptive Page 7of20 J parents and continued to reside with the adoptive parents in the same house(this is not m dispute though it has been pleaded by respondent No. 5 that the appellant contmued to stay with the mother of respondent No. 5, who was residmg with him). The appellant is alleged to have acquired the partnership business of his adoptive mother and the appellant acknowledged, affirmed and reiterated, at that stage, that he was the son of his adoptive parents. Respondent No. 2 IS stated to have filed a petition being OMP No. 192/2008 pleading that the appellant was the son of his adoptive parents and the appellant was a party to those proceedmgs where this fact was not disputed as no reply was filed by the appellant and the OMP was disposed ofon 24.04.2008. A similar plea was taken by respondent No. 2 m a suit bemg CS(OS)No. 1707/2008 filed on the Origmal Side of this Court where the appellant filed the written statement without disputmgthe fact ofbeing adopted.
19. Learned counselfor respondents No 1 to 4submitted that post-filmg ofthe present suit m question m the present appeal on, 11.12.2008 the appellant had filed the written statement in CS (OS) NO. 1707/2008 on 06.11.2009 declarmg himself to be the son of his adoptive parents. Notonlythat,the appellantin hisown handwritmg made a complaint to the SHO, P S. Karol Bagh on 16.05.2011 declarmg him to be the son ofhis adoptive parents with respondent No. 1 alleged to be as his aunt and respondent No.2 as his cousm brother
20. It was the submission oflearned counsel for respondents No. 1 to 4 that the aforesaid conduct ofthe appellant pre and post-suit clearly showed thatthe appellant wasclaiming to be the son ofhis adoptive parents and, for the first time, the validity of the adoption was Page8of20 assailed m the replication contrary to various admissions made m judicial proceedmgs or otherwise
21. In law, It has been pleaded that there cannot be any reversion of adoption m view ofvanous legal pronouncements.
22. Learned counsel referred to the judgment m Daniraiii Vrailalii Junagadh v. Maharai Vahuii Shri Chandraprabha. AIR 1975 SC 784 =(1975)1 see 612 where it was held that any adoption would have to be governed by the provisions of the said Act and it does not envisage cancellation of a valid adoption. The customary law was held to have been superseded by the statutory law as contained in ehapter II ofthe said Act
23. Learned counsel for respondents No. 1 to 4 pleaded that the Adoption Deed has two distmct parts, i.e., firstly, the adoption and secondly,the reversion. These two parts are clearly severable and the fact that the second part is unenforceable in law m view ofthe provisions of Sections 12 and 15 ofthe said Act, which negate the adoption made and, thus, no reliance can be placed on the second part.
24. To support his contention,learned counsel relied upon thejudgment in Shin Satellite Public Co. Ltd. v. Jam Studios Ltd.,(2006)2 SCC 628 where while dealing with the provisions ofthe Arbitration and Conciliation Act, 1996 and keepmg m view the doctrme of severability, it was held that if the court holds the agreement severable, it should implement and enforce that part which is legal, valid and m consonance with law
25. Learned counsel also relied upon the judgment in Tarsem Singh v. Siikhminder Singh,(1998)3 SCC 471. In the said case,it was held that where the clause of any agreement is treated to constitute a Page 9of20 separate and independent agreement, severable from the mail agreement,the same can be enforced separately and independently.
26. Learned counsel for respondents No. 1 to 4 emphasized that there can be no injunction granted qua the estate which already stood divided under a decree of a civil court more particularly when that decree had not been assailed. Merely because the appellant hasfiled a partition suit does not imply that he is entitled to interim relief, unless the triple test is satisfied for grantofmterim injunction.
27. In Baldev Rai v. Man Mohan.92(2001)DLT 274(DB),a Division Bench ofthis Court,ofwhich one ofus(Sanjay Kishan Kaul,J.) was ^ a member,held as under: "7. The mere fact that a suit for partition is filed cannot implv that an iniunction must follow as a matter ofcourse m respect of the suit property. In deciding an mterim application under Order 39 Rules 1 and 2read with Section
151. CPC. the three essential mgredients of existence ofprima facie case,balance ofconvenience and irreparable loss and miurv must be met before a plamtiff in the suit becomes entitled to an interim order. The learned Single Judge has, on the facts and circumstances ofthe case, not found such a case for grant of an interim order. There cannot be anv hard and fast rule m this behalfand each case ^ will turn on its own facts for grant ofmiunction keenmg m mind the prmciples of the grant of such an miunction order." (emphasis supplied)
28. Insofar as the reliance placed by learned senior counsel for the appellant on the Order dated 11 12.2009passed on the application of respondents No. 1 to 4 under Order VII Rule 11 ofthe said Code is concerned, it was submitted that when the said Order was passed, neither was the written statement nor any admitted documents on record nor could they have been taken cognizance of. 29, We are ofthe view that m orderto appreciate the nval submissions, first the scheme ofthe said Acthasto be seen. 30, The said Act was enacted to amend and codify the law relating to adoption and mamtenance amongst Hmdus, It,thus,superseded the traditional Hindu law of adoption with its religious basis and sacramental elements, which had earlier remained in force,
31 Chapter II deals with the aspectofadoption. Section[5] makes it clear thatno adoption can be made aftercommencementofthe said Actby or to a Hindu except m accordance with the provisions contained m Chapter II thereof. An adoption made m contravention of the said provisions is to be void, 32, Section[6] ofthe said Act prescribes the requisites ofa valid adoption and no adoption is valid as per sub-section(iv)thereof, unless inter alia the adoption is made in compliance with the other conditions mentioned m Chapter II, 33, Section 7 deals with the capacity ofa male Hindu to take m adoption and reads as under: "7. Capacity of a male Hindu to take in adoption.- Any male Hindu who is ofsound mind and is not a minor has the capacity to take a son or a daughter in adoption: Provided that, if he has a wife livmR, he shall not adopt except with the consent of his wife unless the wife has completely and fmally renounced the world or has ceased to be a Hindu or has been declared by a court ofcompetent jurisdiction to be ofunsound mmd," However, no particular methodology has been prescribed for obtaining such a consent FAO(OS)Nos.444-445of2011 Page U of20
34. Similarly, Section 9 ofthe said Act deals with persons capable of giving m adoption, which agam requires the consent of the wife The relevant portion ofSection9reads as under:
9. Persons capable of giving in adoption.-(1) No person except the father or mother or the guardian of a child shall have the capacityto give thechild in adoption. (2) Subject to the provisions of sub-section (4), the father or the mother,ifalive,shall have equal right to give a son or daughter m adoption: Provided that such right shall not be exercised bv either of them save with the consent ofthe other unless one ofthem has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competentjurisdiction to be ofunsound mind.
35. Apartfrom specifying as to who is capable oftaking in or givmg m adoption (Sections 7 to 9) and who can or is capable of bemg adopted(Section 10), Section 11 prescribes other conditions ofvalid adoption Section 1 l(vi)ofthe said Act,which has been relied upon, reads as under: "11. Other conditions for a valid adoption.-
(vi) the child to be adopted must be actuallv given and taken m adoption bv the parents or guardian concerned or under their authority with intent to transfer the child from the family ofits birth 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 the adoption."
36. Section 12 prescribesthe effect ofadoption and reads as under: "12. Effects of adoption.- An adopted child shall be deemed to be the child of his or her adoptive father or FAO(OS)Nos.444-445of2011 " Page of20 r n mother for all purposes with effect from the date of the adoption and from such date all the ties ofthe child m the family ofhis 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 ifhe or she had contmued in the family ofhis 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 ofsuch property, including the obligation to maintam relatives in the family ofhis or her birth, (c)the adopted child shall not divest any person of any estate which vested m him or her before the adoption."
37. Section 15 proscribes the cancellation ofa valid adoption and reads as under: "15. Valid adoption not to be cancelled.-No adoption which has been validlv made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family ofhis or her birth."
38. We may notice that under Section 16, there is a presumption as to registered documents relatmg to adoption. The said provision reads as under:
FAO(OS)Nos.444-445of2011 P<^8« o/20 r
39. The aforesaid Section only clarifies that there is a presumption that the adoptionhasto be made m compliance with the provisionsofthe said Actand ifit is registered,the proofofgiving m and takmg the child would not be necessary. Thus,ifthe adoption is disputed,it will be for such a claimant to prove that the ceremony ofgiving in and taking hasnottaken place. However,such apresumption would operate so long as there is no rebuttal by the procedures known to law. Thus,registration itselfwould notbe mandatory.
40. Now, applying the aforesaid scheme ofthe said Act to the facts of the present case, it is not m dispute that an Adoption Deed was executed on 01.12.1984. It is also not m dispute that both the parents giving in adoption and persons taking m adoption had the legal capacity nor was the appellant suffermg from any disability to be given m adoption. It is not necessary that the Adoption Deed must be registered. In the present case, the Adoption Deed is duly notarized and signed by the father giving in adoption and the adoptive father. From this Adoption Deed,two questions arise:
(i) The effect ofthe two mothers not havmg signed the Adoption
(ii) The Adoption Deed having clause(2)giving an assurance for reversion ofadoption,were a natural child to be bom from the wedlock ofthe adoptive parents.
41. The requirements of consent of the mothers to the adoption again cannot be disputed m view of the statutory provisions more specifically the proviso to Section 7 and the proviso to Section 9(2) ofthe said Act. It is also tme that there is no particular method set out for givmg such consent. No doubt, in view ofthe judgment m Ghisalal v. DhanubaTs case (sunral such a consent cannot be presumed merely by presence at the time ofadoption and the wife's FAO(OS)Nos.444-445cf20U Page 14of20 r silence or lack ofproteston her part cannot give rise to an inference/ that she has consented to adoption. However,m the present case,the adoption wasacted upon. Itis noteven m question thatthe appellant stayed with his adoptive parents from the date ofadoption. He was treated as a child post-adoption for all purposes It was only when the natural child was bom to the adoptive parents on 04.04.1990,i.e., almostfive and a halfyears after the appellant had been adopted that the question arose ofreversion ofthe adoption on account ofclause (2) contamed m the Adoption Deed dated 01.12.1984. Thus, the adoption has been acted upon. Not only that, it is a common case that the appellant contmued to stay m the house of his adoptive parents even post the so-called cancellation ofadoption and the only explanation given is that since his grand-mother was residing m that house. It was so done. It is further not m dispute that the adoptive parents' name contmued to be reflected in all records qua the appellant.
42. We may also notice that respondents No. 1 to 4 have given illustrations of how pre and post-filmg ofthe suit m question m the present appeal,the appellant contmued to show himselfas the child ofhis adoptive parents Some ofthese illustrations are as under:
(i) The appellant acquirmg partnership busmess of his adoptive mother on 01.10.2007 and, at that stage, acknowledgmg, affirming and reiteratmg that he was the son of his adoptive parents.
(ii) The appellant choosing not to deny the allegation ofhis bemg son of adoptive parents m OMP No. 192/2008 where he kept silent and did not file any response. FAO(OS)Nos.444-445(f2011 Page 15of20
(ill) The appellant m his written statement to CS (OS) NO. 1707/2008 filed by respondent No. 2 herem did not dispute this fact
(iv) The appellant,post-filing ofthe suit m question m the present appeal,filed the written statement in CS(OS)No. 1707/2008 along with an affidavit duly sworn on oath declarmg himself to be the son ofhis adoptive parents.
(v) The appellant in his own hand-writing made a complaint to the SHO,P S. Karol Bagh on 16.05.2011 where respondent No. 1, his natural mother, is stated to be his aunt and respondent No.2his cousm brother.
43. In Ghisalal v. Dhapubafs case(suprai. while dealmg with the aspect of consent ofthe wife, it has been observed that it may be either m writmg or reflected by an affirmative or positive act voluntarily and willingly done by her. No doubt, her presence cannot be a presumption,but m the facts ofthe present case,there is affirmative and positive acts both by the adoptive parents mcludmg the mother and the appellant affirming to the adoption. The mterestmg part is that even m the suit, the factum ofhavmg been validly adopted was never questioned. It is only when the defence has been disclosed by respondents No. 1 to 4 that the appellant appears to have woken up to the legal mfirmity in the plea of reversion of adoption and thereafter seeks to assail the adoption m replication. The subsequent facts, thus, establish that the appellant was given and taken in adoption thereby metmg the parameters ofSection 11(vi)ofthe said Act.
44. We may usefully refer to the observations of the learned Single Judge(as he then was)ofthis Court m Anant Construction(PJ Ltd.
V. Ram Niwas, 1994 IV AD (Delhi) 185 = 1994 (31) DRJ 205
FAO(OS)Nos.444'-44542011 16of20 ■PUT" s; relying upon the observations of the Supreme Court in M.S.M.' Sharma v. Krishna Sharma, AIR 1959 SC 395, it was observed m para 20 as under: "20 A plea mconsistent with the case set out bv the plaintiff in the plamt cannever be permitted to be raised in replication. So also a plea m rejoinder cannot be inconsistent with the case set out by the defendant m his written statement. Anv subsequent pleading mconsistent with the original pleading shall be refused to he taken on record and if taken shall be liable to be struck off and taken off the file." While acknowledging that if replication is permitted to be filed, it forms part of the pleadings, it has been observed that subsequent pleadmgs are not substitute for amendment in the origmal pleadings. In fact, a Full Bench of this Court in Kedar Nath v Ram Parkash and other connected matters, 1998 VII AD (Delhi) 409 = 1999 (48) DRJ 589 has held that even while amending pleadings, there cannot be additional pleadmgs at variance or mconsistent with origmal pleadmgs.
45. In view of the aforesaid discussion, we find no ment m the plea of the appellant assailing the adoption.
46. The second limb, which is the basic plea in the suit, is that the adoption stood cancelled. This is claimed on the basis of clause (2) of the Adoption Deed dated 01.12.1984, the Memorandum of Settlement dated 01.11.1988 and ultimately the document dated 11 08 1991 purporting to be a Cancellation of Adoption. The question of mterpreting these documents qua reversion would apply only if the reversion of adoption m law is permissible. Such a reversion post-valid adoption is clearly barred by Section 15 of the FAO (OS) Nos.444-445 of2011 Page17of20 f- \ said Act and it is, thus,not even open to plead that such a reversion can take place or thata valid adoption can be cancelled.
47. The document evidencmg adoption bemg the Adoption Deed dated 01.12.1984 Itself does not become mvalid, i.e., the adoption is valid, but clause (2)contamed m the said Adoption Deed would become invalid bemg hit by Section 15 of the said Act. The said clause is clearly severable from the aspect of adoption. To come to this conclusion, we draw strength from the authoritative pronouncements ofthe Apex Courtin Shin Satellite Public Co. Ltd.'s case tsupral and Tarsem Singh's case(supra)
48. In Hindu Law ofAdoption,Mamtenance,Mmority and Guardianship (1970) by S.V. Gupte, it has been observed at page 323 that an agreement providmg that on the happenmg ofan event,the adoption shall be mvalid or shall be deemed to have notbeen made is void and IS ofno effect. This is an aspect completely apposite to the facts of the present case!
49. Similarly, m Law ofAdoption, Mmonty,Guardianship and Custody (3"^ Edn.)by Paras Diwan at page 131,it has been observed that it is not permissible for natural parents and adoptive parents to enter into agreements stipulatmg circumstances in which an adoption may be cancelled. Such agreement will be void. The acquired status ofthe child,thus,cannot be altered by the adoptive father or mother or any other person.
50. There is,thus,no meriteven m the second plea.
51. We agree with the submissions oflearned counsel for respondents No. 1 to 4 that injunction cannot be as a matter of right merely because the claim is qua immovable properties and the suit being a partition suit. Mere filing ofsuit does not amountto an entitlement to get mterim injunction unless the triple test ofprimafacie case. FAO(OS)Nos.444-445(f20Il 18of20 f balance ofconvenience and irreparable loss and injury is established. We have already noticed heremabove that the appellant hasfailed to establish aprimafacie case m view oftheclearlegalimpediments.
52. The facts set out m the pleadmgs show that the estate of late AmarjeetSingh,mfact,stands divided amongstthe legal heirsand is enjoyed bythem separately post-severance. The only aspect pleaded by the appellant m this behalfis that the same was at his back even though It has a judicial imprimatur. The appellant has gone to the extent ofeven casting doubt on the character ofhis natural mother, respondent No. 1 by alleging that respondent No.4 is not even the child oflate AmarjeetSmgh and hisnatural mother.
53. The other aspect emphasized by learned senior counsel for the appellant was the fmdmgs arrived at by learned Smgle Judge in the Order dated 11.12.2009 while decidmg the application of respondents No. 1 to 4 under Order VII Rule 11 ofthe said Code. We find no force m this argument too because of two reasons. Firstly,theparameters whiledecidmgan application underOrder VII Rule 11 of the said Code are distinct from one decidmg an application under Order XXXIX Rules 1 and 2ofthe said Code and under Order XL Rule 1 of the said Code. For deciding an application under Order VII Rule 11 of the said Code, the plaint alone can be relied upon as well as the documents filed with the plamt. The occasion to peruse the wntten statement did not even arise nor the subsequent documents filed m support of the written statement,as only the averments made m the plamt are germane and the pleas taken by the defendant m the written statement would be wholly irrelevant at that stage (See Sopan Sukhdeo Sable v. Asstt. Charitv Commr.,(2004) 3 SCC 137 and Saleem Bhai v. State of Maharashtra.(2003) 1 SCC 557). Secondly, all that the learned FAO(OS)Nos.444-445of2011 Page 19of20 Single Judge observed m the Order dated 11.12.2009 wasthatthe list ofdocuments does not unambiguously suggest that there was a clear and valid adoption as is understood m law. There is no further discussion on this aspect. In fact, there could not be much of a discussion because the affirmative and positive actions post-adoption were not before the Court at that stage. The appeal agamst the same was withdrawn. Merely because a plamt cannot be rejected under Order Vll Rule 11 of the said Code will not imply that postcompletion of pleadings, the plamtiff would be entitled to mterim injunction. We,thus,find no meriteven m this plea. ^ 54. Weare,thus,ofthe viewthattheappealiscompletelymeritlessand IS accordmgly dismissed with costs quantified atRs.20,000/-.
55. Interim orders stand vacated.
56. Needless to say, any expression of views, as aforesaid, is only for purposes of decision of the intenm application and would not prejudicethefinaldecision m the suitposttrial. f SANJAY KISHAN KAUL,J. JANUARY 24,2013 VIPIN SANGHI,J. madan Page 20of20