Usha Ramrao Bhojane vs Mangala Shivdas Dindokar And 6 Ors on 23 June, 2017

NMS437.15.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO.437 OF 2015
IN
SUIT NO.824 OF 2014

Shahid S. Sarkar and others … Applicants
and
Usha Ramrao Bhojane … Plaintiff
v/s
Mangala Shivdas Dandekar and others … Defendants

Mr Amey Patil i/b Mr Mohand Shetty for the Plaintiff.
Mr Cyrus Ardeshir with Mr Utsav Ghosh, Mr Rachit Thakur and Mr
Kshitij Kadam i/b Ms Hemangi N. Modi for Defendant Nos.1, 2, 4 and
5.
Mr Farhan Dubhash with Mr Nilesh Modi i/b M/s Rustomji and
Ginwala for Defendant Nos.3, 6 and 7.

CORAM : B.P. COLABAWALLA, J.

DATE : JUNE 23, 2017
P.C.:

1. This Notice of Motion has been filed on behalf of

Defendant Nos.3, 6 and 7 seeking a prayer for rejection of the plaint

under the provisions of Order VII Rule 11(d) of the Civil Procedure

Code, 1908 (for short “the C.P.C.”).

2. The Suit has been filed by the Plaintiff inter alia seeking a

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declaration that she is the adopted daughter of the late Laxman

Shegaonkar (for short “the said Laxman”) and the late Yamunabai

Shegaonkar (for short “the said Yamunabai”) and on the basis of

this, she claims a share in the estate of the deceased Laxman. The

reliefs claimed in the Suit are as under :-

“(a) that this Hon’ble Court be pleased to declare that the
Plaintiff is the adopted daughter of the deceased Laxman
Ukardaje Shegaonkar and of the deceased Yamunabai
Laxman Shegaonkar;

(b) that this Hon’ble Court be pleased to declare that the
Plaintiff is one of the heir of the deceased Laxman Ukardaje
Shegaonkar and is entitled one-half i.e. 50% share in the suit
property described in Exh.’A’ annexed to the plaint;

(c) that this Hon’ble Court may be pleased to decree the suit
property thereby ordering partition of the suit property
described in Exh.’A’ annexed to the plaint by metes and
bounds and the Defendants be ordered to handover and
deliver the possession of one-half share of the suit property;

(d) that this Hon’ble Court be pleased to pass an order ordering
the Defendants to restore the peaceful physical possession of
the suit property described in Exh.’A’ annexed to the plaint;

(e) that this Hon’ble Court be pleased to call for the document
executed by the Defendant No.1 in favour of the Defendant
No.2 and deceased Shaukat Nazar Hussein Sarkar and
documents executed by the Defendant Nos.2 and 3 in favour
of Defendant Nos.4 and 5 and document executed by
Defendant No.3 in favour of Defendant No.6 and document
executed by the Defendant Nos.4 and 5 in favour of
Defendant No.7 and same be cancelled as it is forged,
fabricated and illegal document.

(f) that this Hon’ble Court be pleased to grant leave under
Order II Rule 2 of the C.P.C. to file a substantive suit for

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partition against the Defendant No.1;

(g) that this Hon’ble Court be pleased to pass a permanent order
and injunction restraining the Defendants, their servants and
agents from in any manner selling, transferring, alienating,
encumbering or creating third party rights of any nature
whatsoever, of handing over possession or altering the
status-quo of the suit property described in Exh.’A’ annexed
to the plaint;”

3. In paragraph 2 of the plaint, it is specifically averred by

the Plaintiff that she is the adopted daughter of the said Laxman and

the said Yamunabai, which adoption took place on 27th September,

1950 under the provisions of the Hindu Adoptions and Maintenance

Act, 1956. In fact, if one peruses the prayers in the plaint which are

reproduced hereinabove, what is clear is that the main prayer in the

Suit is for a declaration that the Plaintiff is the adopted daughter of

the said Laxman and the said Yamunabai. It is on the basis of this

declaration that the Plaintiff claims to be an heir of the said Laxman

and therefore claims the other reliefs as more particularly set out

hereinabove.

4. Mr Dubhash, learned counsel appearing on behalf of

Defendant Nos.3, 6 and 7, submitted that on the basis of this very

averment, the plaint ought to be rejected since there could not have

been any valid adoption of a girl child prior to the enactment of the

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Hindu Adoptions and Maintenance Act, 1956. He submitted that as

per the averments in the plaint, it is the Plaintiff’s own case that she

was adopted on 27th September, 1950. It is on this basis that she

seeks a declaration that she is the adopted daughter of the said

Laxman. Mr Dubhash submitted that it is now well settled by several

decisions, not only of our Court but also of the Supreme Court and

the Calcutta High Court that adoption of a female child prior to the

enactment of the Hindu Adoptions and Maintenance Act, 1956 was

invalid. This being the position in law, Mr Dubhash submitted that

the declaration sought for by the Plaintiff in prayer clause (a) of the

plaint can never be granted and clearly the Suit filed by the Plaintiff

is barred by law as contemplated under Order VII Rule 11(d) of the

C.P.C. To further this argument, Mr Dubhash relied upon the

following three decisions:-

1) Sandhya alias Supriya Kulkarni and others v/s
Union of India and another;1

2) M. Gurudas and others v/s Rasranjan and others;2

3) Binapani Samanta v/s Sambhu Mondal and others.3

5. Placing reliance on these decisions, Mr Dubhash

contended that the adoption of the Plaintiff, and the basis on which
1 AIR 1998 Bombay 228
2 (2006) 8 SCC 367
3 Unreported decision of the Calcutta High Court passed in First Appeal No.198 of 1991, decided on
22nd December 2009.

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the Suit has been filed, is clearly invalid and therefore, the Suit was

barred as contemplated under Order VII Rule 11(d) of the C.P.C. He

therefore submitted that the plaint be rejected under the provisions

of Order VII Rule 11(d) of the C.P.C. and the Notice of Motion be

allowed in terms of prayer clause (a).

6. On the other hand, Mr Patil, learned counsel appearing

on behalf of the Plaintiff, submitted that this Notice of Motion is not

maintainable and ought to be dismissed with compensatory costs.

He submitted that since the adoption of the Plaintiff was prior to the

Hindu Adoptions and Maintenance Act, 1956 it was as per the

customs and usage prevalent at that time and therefore, the

Plaintiff’s adoption is not barred by any law as contemplated under

Order VII Rule 11(d) of C.P.C. Mr Patil, thereafter placed reliance on

section 4 of the Hindu Adoptions and Maintenance Act, 1956 to

contend that the Act has an overriding effect and therefore, any

adoption done prior thereto as per the customs and usage prevalent

at that time, would be now recognised under the Hindu Adoptions

and Maintenance Act, 1956. He submitted that in any event, this is

a mixed question of fact and law and when such a situation arises,

there is no question of rejecting the plaint under Order VII Rule

11(d) of the C.P.C. In support of this proposition, Mr Patil relied

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upon a decision of the Supreme Court in the case of Kamala and

others v/s K.T. Eshwara Sa and others.4

7. Additionally, Mr Patil submitted that under Order VII

Rule 11(d) a plaint can be rejected only when the Suit, on the basis

of the averments in the plaint, would be “barred by any law”. It was

Mr Patil’s submission that the words “barred by any law” would only

mean a codified law or statute law and not the law laid down by

judicial precedents. In other words, it was the submission of the

learned counsel that even if the Courts have held that the adoption of

the Plaintiff would be rendered invalid by virtue of the fact that she

was adopted prior to the enactment of the Hindu Adoptions and

Maintenance Act 1956, the same could not be a ground on which the

plaint could be rejected under Order VII Rule 11(d) of the C.P.C. He

therefore submitted that this Notice of Motion has no merit and

ought to be dismissed.

8. To counter to this specific argument, Mr Ardeshir,

learned counsel appearing on behalf of Defendant Nos.1,2,4 5

relied upon an unreported decision of the Gujarat High Court in the

case of Hermes Marines Limited Vs. Capeshore Maritime Partners FZC,5

4 AIR 2008 SC 3174
5 unreported decision in Civil Application (OJ) No.144 of 2016 in Admiralty Suit No.10 of 2016 decided on 22nd April, 2016

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to submit that the exact same argument was made before the

Gujarat High Court and which was negated by it by expressly holding

that the words “barred by any law” would also include judge made

law. Additionally, Mr. Ardeshir, reiterated the arguments canvassed

by Mr. Dubash and submitted that the Plaint is liable to be rejected

under Order VII Rule 11(d) of the C.P.C.

9. I have heard learned counsel for the parties at length and

I have gone through the papers and proceedings in the Suit as well as

in the Notice of Motion. In the plaint, it is specifically averred by the

Plaintiff that the Plaintiff and Defendant No.1 are the only heirs and

legal representatives of the late said Laxman. Defendant No.1 is the

biological daughter of the said Laxman. In the plaint, it is

specifically averred in paragraph 2 that the Plaintiff is the adopted

daughter of the said Laxman and the said Yamunabai as per the

Hindu Adoptions and Maintenance Act, 1956 and that she was

adopted on 27th September, 1950 after performing the necessary

ceremonies. According to the Plaintiff, she was actually given by her

biological parents (who were the brother and sister-in-law of the said

Laxman) to the said Laxman and the said Yamunabai and the

adoption ceremony was performed at the residence of the said

Laxman. This ceremony was conducted in the presence of family

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members and relatives and in the presence of the said deceased

Laxman’s wife, Yamunabai. Thereafter the Plaintiff was residing

with her adopted family till her marriage. To substantiate this

claim, the Plaintiff has relied upon several documents annexed to

the plaint to show that she was adopted by the said Laxman and that

thereafter she was residing with him. It is on the basis of these

averments that the Plaintiff claims a declaration that she is the

adopted daughter of the said Laxman and the said Yamunabai.

Thereafter, a declaration is also sought that the Plaintiff is one of the

heirs of the said Laxman and the said Yamunabai and is therefore

entitled to đ i.e. 50 % share in the suit property described in Exh.’A’

to the plaint. Thereafter, partition is sought in prayer clause (c) and

other consequential reliefs in prayer clauses (d) to (g) of the plaint.

10. As can be seen from the averments in the plaint itself, it

is the case of the Plaintiff that she was adopted by the said Laxman

and the said Yamunabai on 27th September, 1950. This is

approximately six years prior to coming into force of the Hindu

Adoptions and Maintenance Act, 1956. This Act was brought into

force on 21st December, 1956. This being the factual position, I fail

to understand how the Plaintiff could aver that her adoption which

took place on 27th September, 1950, was as per the provisions of the

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Hindu Adoptions and Maintenance Act, 1956. Section 4 of the Act

gives an overriding effect to the provisions but it does not have the

effect of validating an adoption that was done prior to the Act coming

into force. Section 4 reads thus:-

“4. Overriding effect of Act.–Save as otherwise expressly
provided in this Act,–

(a ) any text, rule or interpretation of Hindu law or any
custom or usage as part of that law in force
immediately before the commencement of this Act
shall cease to have effect with respect to any matter
for which provision is made in this Act;

(b ) any other law in force immediately before the
commencement of this Act shall cease to apply to
Hindus insofar as it is inconsistent with any of the
provisions contained in this Act.”

11. What is ex-facie clear from this section is that (i) any

text, rule or interpretation of Hindu law or any custom or usage as

part of Hindu law in force immediately before the commencement of

the Act would cease to have effect with respect to any matter for

which a provision is made in the Act; and (ii) any other law in force

immediately before the commencement of the Act shall cease to

apply to Hindus insofar as it is inconsistent with any of the

provisions contained in the Act. For our purposes, what this means

is that even though prior to the Act, an adoption of a female child

was invalid as per Hindu law, the same has now been done away with

by virtue of this Act. In other words, now, after the enactment of the

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Hindu Adoptions and Maintenance Act, 1956, the adoption of a

female child is legally valid. Section 4 certainly does not validate

something done before the Act came into force, which was otherwise

held to be invalid.

12. Be that as it may, considering the fact that she was

adopted in the year 1950, what I now have to examine is whether

such adoption was valid in law. In this regard, I find considerable

force in the arguments canvassed by Mr Dubhash and Mr Ardeshir

that a female child, prior to the enactment of the Hindu Adoptions

and Maintenance Act, 1956 could not be validly adopted. The first

decision on this subject would be a decision of the Division Bench of

the Bombay High Court in the case of Sandhya alias Supriya Kulkarni

and others v/s Union of India and another.1 In paragraph 4 of the

decision, the Division Bench summarizes the ancient law relating to

adoption. The Division Bench opines that ancient Hindu Law alone

rendered recognition for adoption and that too for a limited purpose

for adopting a male child by issueless parents. The predominant

mythological design was to have a son, even by adoption, to perform

the last rites so that the deceased could avail Moksha i.e. eternal

bliss and also to continue the generation of the adoptive parent.

Paragraphs 4, 5 and 9 of this decision read thus :-

1 AIR 1998 Bombay 228

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“4. To deal with the submissions, we propose to trace and
summarize the Ancient Law relating to adoption. Unanimous
statement at the Bar is that Christianity, Islam or Zoroastrian
did not recognize adoption. Ancient Hindu Law alone
rendered recognition therefor. That too was limited to as
male child by an issueless parent. During one’s lifetime,
there could not be adoption of another male child.
Adoption of a female child was not at all recognised.
Predominant mythological design was to have a son, even by
adoption, to perform last rites so that deceased could avail
Moksha i.e. Eternal Bliss and also to continue the generation
of adoptive parent. In some part of the country, the dancing
girl could adopt a female child. This was more a customary
and perhaps with a view to perpetuate the traditional
avoication of dancing. This could not, however, be a part of
Hindu Law. The Orissa High Court in Krushna Kahali v.
Narana Kahali, AIR 1991 Orissa 134 (para 4) held such
custom as invalid.

5. The Act of 1956 codified the practices as prevailing under
Ancient Hindu Law in relation to adoption. By way of an
amendment, the act incorporated a significant feature of
adoption of a female child which was unknown to the
Ancient law. This being the personal law, the adoption was
confined by and to Hindu parents and that too of a Hindu
child. The Amending Act 45 of 1962 brought a revolution.
The statement (sic).

A. To provide adoption and congenial home for an
abandoned child.

B. To authorize manage of Fonding of Remand Homes to
give abandoned children in adoption, with the
permission of the Court.

C. To include a child, legitimate or illegitimate, who has
been abandoned by both of his parents or whose
parentage is not known, but who, in either case is
brought up as Hindu to be a Hindu by religion.

9. Even under Ancient Hindu Law, the parents had a right to
adopt only one male child. The amending Act extended that

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right to adoption of a female child. As such, the privilege of
adoption cannot logically be further extended to more than
one female child. The Act with its mythological and secular
mission has stood the test of time for around four decades
and has conveniently withstood the assaults as attempted
from time to time. We, therefore, refrain from examining
validity of the impugned provisions on the touchstone of Arts.
14 and 21.”

(emphasis supplied)

13. What is clear from this decision is that prior to the

enactment of the Hindu Adoptions and Maintenance Act, 1956 the

adoption of a female child was not at all recognized under Hindu law.

This being the case, and admittedly the Plaintiff being adopted on

27th September 1950, her adoption was clearly invalid in law.

Clearly, adoption of a female child was given recognition under

Hindu Law after the enactment of the Hindu Adoptions and

Maintenance Act, 1956. Consequently, for the Plaintiff to get a

declaration that she is the adopted daughter of the said Laxman and

the said Yamunabai (as prayed for in the plaint) can never arise

because a division bench of this Court has clearly held that in

Ancient Hindu law and before the enactment of the Hindu Adoptions

and Maintenance Act, 1956, adoption of a female child was not at all

recognized. If the law of the land clearly stipulates that the adoption

of a female child prior to the enactment of the Hindu Adoptions and

Maintenance Act, 1956 was not at all recognized, there is no

question of the Plaintiff succeeding in the Suit as framed and filed in

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this Court.

14. I have come to this finding not only on the basis of the

decision of the Division Bench in Sandhya alias Supriya Kulkarni and

others1 (referred to above), but I also find that the same view has

been reiterated by the Supreme Court in the case of M. Gurudas and

others v/s Rasaranjan and others.2 The facts of this case would

reveal that one M. Obalappa was the owner of the property. He had

three sons viz. Nagappa, Obalappa and Kadarappa. M. Obalappa died

in 1889. Nagappa separated himself in the year 1913. Obalappa and

kadarappa were, thus, in joint possession of the properties in the

suit. Obalappa died in 1949. He had no issue. The respondent-

plaintiffs are said to be the heirs of the natural daughter of

Kadarappa viz. Nirmala. Allegedly, she was adopted by Obalappa

during his lifetime. Kadarappa died in 1961 leaving seven sons and

one daughter Nirmala, whose heirs and legal representatives as the

Plaintiffs claimed themselves; she died in the year 1999. The

children of Kadarappa, Gurudas and others, and their sons,

Sagunarthy and Shivarthy, were the appellants in the civil appeals

arising out of SLPs (C) Nos.12 of 2006 and 843-44 of 2006

respectively. The question before the Supreme Court was the

purported adoption of Nirmala by Obalappa and one of the issues

2 (2006) 8 SCC 367

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raised was whether the adoption of Nirmala was permissible in law.

In this regard, the observations of the Supreme Court in paragraphs

22, 23, 24, 27, 28 and 29 are extremely vital and read thus:-

“22. Mr Mahabir Singh may not be right in contending that the
adoption of Nirmala was never in question. In fact, the trial court in
its judgment noticed:

“… Hence, if the family of Obalappa had followed Brahmo
Samaj, Kadarappa could not have got any property by survivorship
and the adoption of Nirmala Dhari is valid under law. Under the
circumstances, the issue as to the ancient Hindu adoption has to be
investigated during the trial. The plaintiffs have established a trivial
case i.e. prima facie case in my opinion.”

23. While arriving at the said finding, the court referred the
following passage from Mayne’s Treatise on Hindu Law and Usage,
13th Edn., pp. 429-30:

“Adoption of daughters.–Nandapandita in his Dattaka
Mimamsa would construe ‘putra’ (or son) as including a daughter
and he draws the inference that on failure of a daughter, a daughter
of another could be adopted. He supports his conclusion by
referring to ancient precedents, such as the adoption of Shanta, the
daughter of King Dasaratha by King Lomapada and the adoption of
Pritha or Kunti, the daughter of Sura by Kunti Bhoja. This view is
sharply criticised by Nilakantha in the Vyavahara Mayukha. It is
now settled that the adoption of a daughter is invalid under the
Hindu law.”

(underlining [Ed.: Herein italicised.] is ours for emphasis)

24. However, it appears that the learned Judge missed the last
sentence of the said passage i.e. “It is now settled that the adoption
of a daughter is invalid under the Hindu law”.

*******************

27. In Mulla’s Principles of Hindu Law, 17th Edn., p. 710, it is
stated:

“488. Ceremonies relating to adoption.–(1) The ceremonies
relating to an adoption are–

(a) the physical act of giving and receiving, with intent to
transfer the boy from one family into another;

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(b) the datta homam, that is, oblations of clarified butter to fire;
and

(c) other minor ceremonies, such as putresti jag (sacrifice for
male issue).

(2) The physical act of giving and receiving is essential to the
validity of an adoption.

As to datta homam it is not settled whether its performance is
essential to the validity of an adoption in every case.
As to the other ceremonies, their performance is not necessary to
the validity of an adoption.

(3) No religious ceremonies, not even datta homam, are
necessary in the case of shudras. Nor are religious ceremonies
necessary amongst Jains or in the Punjab.”

28. In Section 480 of the said treatise, it is categorically stated that
the person to be adopted must be a male.

29. Prima facie, therefore, Nirmala was not a validly adopted
daughter of Obalappa. If that be so, she would inherit only the
property which fell to the share of Kadarappa on partition. Nirmala
as a daughter of Kadarappa can claim interest in his share in the
properties only. In terms of Section 8 of the Hindu Succession Act,
as Kadarappa died in the year 1961, she will have 1/8th share but
what was the extent of Kadarappa’s property would inevitably
depend upon the effect of deed of partition executed by the parties in
the year 1954. However, as the matter is required to be dealt with
by the trial court finally, we do not intend to say anything further at
this stage lest we may be understood to have expressed our views
one way or the other.”

(emphasis supplied)

15. The Supreme Court has clearly stated that it is now

settled that adoption of a daughter is invalid under ancient Hindu

law. This is obviously prior to the enactment of the Hindu Adoptions

and Maintenance Act, 1956.

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16. This decision of the Supreme Court was thereafter

considered by the Calcutta High Court in the case of Binapani

Samanta v/s Sambhu Mondal and others.3 The Calcutta High Court,

whilst relying upon the aforesaid decision of the Supreme Court

opined thus :-

"Apart from that, under the old Hindu Law, the adoption of a
daughter was not permissible at all. It is now settled that the
adoption of a daughter was invalid under the old Hindu Law except
dancing girls as customary in Madras, Pandichery and Western
India. Our such view gets support from the decision in the case of
M. Gurudas and others Vs. Rasaranjan and others, reported in
(2006) 8 SCC 367. The Hon'ble Apex Court has come to such a
finding on the basis of a well-recognized book of Treatise on Hindu
Law and Usage by Mayne and the Principles of Hindu Law by
Mulla. For convenience, we are quoting the paragraph nos.23 and
28 of the said decision :-

"23. While arriving at the said finding, the Court referred the
following passage from Mayne's Treatise on Hindu Law and Usage, 13th
Edn., pp. 429-30;

'Adoption of daughters - Nandpandita in his Dattaka Mimansa would
construe 'putra' (or son) as including a daughter and he draws the
inference that on failure of a daughter, a daughter of another could be
adopted. He supports his conclusion by referring to ancient precedents,
such as the adoption of Shanta, the daughter of King Dasaratha by King
Lomapada and the adoption of Pritha or Kunti, the daughter of Sura by
Kunti Bhoja. This view is sharply criticised by Nilakantha in the
Vyavahara Mayukha. It is now settled that the adoption of a daughter is
invalid under the Hindu Law.'

28. In section 480 of the said treatise (i.e. Principles on
Hindu Law and Usage by Mulla), it is categorically stated that the person
to be adopted must be a male." (emphasis is supplied by us)

In view of such decisions of the Hon'ble Apex Court the
adoption of a girl under the old Hindu Law, as in the instant case,

3 Unreported decision of the Calcutta High Court passed in First Appeal No.198 of 1991, decided on
22nd December 2009.

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was not valid at all. For that reason only, the application for
revocation of Probate filed by the appellant before the learned Trial
Court is liable to be dismissed."

17. In view of these authoritative pronouncements, it is clear

that the adoption of the Plaintiff on 27th September, 1950 was

clearly invalid and was barred as laid down in the judicial

pronouncements referred to by me.

18. Faced with this situation, Mr Patil would contend that

merely because the Courts have laid down that the adoption of the

Plaintiff would be invalid, the same would not amount to the Suit

filed by the Plaintiff as one being "barred by any law" as

contemplated under Order VII Rule 11(d). He submitted that

"barred by any law" as contemplated under the said provision would

have to be a codified or statute law. One cannot say that the Suit of

the Plaintiff was barred by virtue of judicial pronouncements, was

the submission of Mr Patil. I am unable to agree with Mr Patil on this

point. The law laid down by the highest court of a state as well as the

Supreme Court, is the law. In fact, Article 141 of the Constitution of

India categorically states that the law declared by the Supreme

Court shall be binding on all Courts within the territories of India.

There is nothing even in the C.P.C. to restrict the meaning of the

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words "barred by any law" to mean only codified law or statute law

as sought to be contended by Mr Patil. In the view that I have taken,

I am supported by a decision of the Gujarat High Court in the case of

Hermes Marines Limited Vs. Capeshore Maritime Partners FZC.5 In

that case also, it was argued for the Plaintiff that the plaint could not

be rejected under Order VII Rule 11(d) as being barred by any law

because the words "law" meant a statute law and not the law laid

down by the Court in a judgment of judicial interpretation. This

argument was specifically negated by the Gujarat High Court.

Paragraphs 49 to 54 of this decision read thus :-

"49. It has been vehemently argued by Mr Bharat T. Rao, learned
counsel for the Plaintiff that the submission on behalf of the
Applicant, that the plaint is liable to be rejected under Order 7 Rule
11(d) may not be accepted, as clause (d) of Rule 11 refers to the
plaint being barred by any 'law'. According to him, this means only
the law laid down by a statute and not by the Court in a judgment,
as a result of judicial interpretation.

50. In this regard, reference may be made to Black's Law
Dictionary, wherein the meaning of 'Law' is given as below :

'law' : "........ The aggregate of legislation, judicial
precedents, and accepted legal principles; the body of
authoritative grounds of judicial and administrative action;
esp., the body of rules, standards, and princi0ples that the
courts of a particular jurisdiction apply in deciding
controversies brought before them the law of the land
........."

51. In the view of this Court, 'law' cannot be confined only to
mean the enacted law contained in a statute, framed by the
legislature. The scope and amplitude of the word 'law' is much
5 unreported decision in Civil Application (OJ) No.144 of 2016 in Admiralty Suit No.10 of 2016 decided
on 22nd April, 2016

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wider than that and takes within its sweep the binding precedents of
the Supreme Court, being the highest court in the country. When
one speaks to law, one refers to all that is legally binding upon the
courts and citizens. Judgments of the courts have interpreted
various provisions of the statutes and the result of the interpretation
is the law laid down by judicial precedent. The word 'law' connotes
judge-made law as much as statute-law. The final judicial
interpretation of any provision of a statute by a Court, especially the
Apex Court or the final determination of any issue arising before it
is very much 'law'. The law expounded by the Supreme Court is
binding on all courts of the country under Article 141 of the
Constitution of India. A pronouncement or determination on any
legal issue decided by the Supreme Court becomes the law of the
land.

52. A Division Bench of the High Court of Allahabad has, in the
case of Virender Kumar Dixit, v.s State of U.P. - 2014 (9) ADJ
1506, succinctly and aptyly stated thus:

"15. Law includes not only legislative enactments but also
judicial precedents. An authoritative judgment of the courts
including higher judiciary is also law."

53. In light of the above discussion, in the considered view of this
Court, it cannot be said that the term 'barred by any law' occurring
in clause (d) of Rule 11 of Order 7 of the Code, ought to be read to
mean only the law codified in a legislative enactment and not the
law laid down by the courts in judicial precedents. The judicial
precedent of the Supreme Court in Liverpool London (supra) has
been followed by the decision of the Division Bench in Croft Sales
(supra). It is, therefore the law, as of today, which is that the
Geneva Convention of 1999 cannot be made applicable to a
contract that does not involve public law character. Such a contract
would not give rise to a maritime claim. As discussed earlier, the
word 'law' as occurring in Order 7 Rule 11(d) would also mean
judicial precedent. If the judicial precedent bars any action, that
would be the law.

54. Seen from this angle, it is clear that the claim of the Plaintiff
is barred by the decision of the Supreme Court in Liverpool
London (supra) and that of the Division Bench in Croft Sales
(supra). As a consequence thereof, the Plaintiff does not have a
maritime claim, so as to be entitled to invoke the Admiralty
jurisdiction of this Court, as its claim is barred by law and the
Geneva Convention of 1999, on which the entire claim rests, is not

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applicable. The plaint of the suit is, therefore, liable to be rejected
under Order 7 Rule 11(d)."

19. One must also not lose sight of the purpose and intention

behind VII Rule 11(d). The intention appears to be that when the

suit appears from the statement in the plaint to be barred by any

law, the Courts will not unnecessarily protract the litigation and

proceed with the hearing of the suit. The purpose clearly appears to

be to ensure that where a Defendant is able to establish that the

Plaint ought to be rejected on any of the grounds set out in the said

Rule, the Court would be duty bound to do so, so as to save expenses,

achieve expedition and avoid the court's resources being used up on

cases which will serve no useful purpose. A litigation, which in the

opinion of the court, is doomed to fail would not further be allowed to

be used as a device to harass a Defendant. In the view that I have

taken, I find support from a decision of the Supreme Court in the

case of Liverpool and London S.P. I. Association Ltd. Vs M.V. Sea

Success I and another.6 Though the aforesaid decision was rendered

in relation to Order VII Rule 11(a), to my mind, the observations

made by the Supreme Court would equally apply even to Order VII

Rule 11(d) of the C.P.C. The following paragraphs of the aforesaid

decision are relevant for our purposes :-

6 (2004) 9 SCC 512

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"132. It is trite that a party should not be unnecessarily harassed in
a suit. An order refusing to reject a plaint will finally determine his
right in terms of Order 7 Rule 11 of the Code of Civil Procedure.

133. The idea underlying Order 7 Rule 11(a) is that when no cause
of action is disclosed, the courts will not unnecessarily protract the
hearing of a suit. Having regard to the changes in the legislative
policy as adumbrated by the amendments carried out in the Code of
Civil Procedure, the courts would interpret the provisions in such a
manner so as to save expenses, achieve expedition and avoid the
court's resources being used up on cases which will serve no useful
purpose. A litigation which in the opinion of the court is doomed to
fail would not further be allowed to be used as a device to harass a
litigant. (See Azhar Hussain v. Rajiv Gandhi [1986 Supp SCC 315]
SCC at pp. 324-35.)

*************

135. Yet again in Samar Singh v. Kedar Nath [1987 Supp SCC 663]
it has been held: (SCC p. 665, para 4)
"In substance, the argument is that the court must proceed
with the trial, record the evidence, and only after the trial of
the election petition is concluded that the powers under the
Code of Civil Procedure for dealing appropriately with the
defective petition which does not disclose cause of action
should be exercised. With respect to the learned counsel, it
is an argument which it is difficult to comprehend. The
whole purpose of conferment of such powers is to ensure
that a litigation which is meaningless and bound to prove
abortive should not be permitted to occupy the time of the
court and exercise the mind of the respondent.""

(emphasis supplied)

20. Applying this principle to the facts of the present case, I

am clearly of the view that in light of the law laid down by this Court,

the Supreme Court as well as the Calcutta High Court, the Suit filed

by the Plaintiff is doomed to fail and would serve no useful purpose if

the Suit went to trial. In other words, purely on the basis of the

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averments made in the plaint itself and nothing more, the Plaintiff,

in my opinion cannot succeed in this Suit in view of the fact that she

was adopted prior to the enactment of the Hindu Adoptions and

Maintenance Act, 1956, and which adoption, as laid down by several

judicial decisions, is clearly invalid. This being the case, I have no

hesitation in holding that the Plaint is liable to be rejected under

Order VII Rule 11(d) of the C.P.C.

21. This now only leaves me to deal with the decision of the

Supreme Court cited by Mr Patil in the case of Kamala and others v/s

K.T. Eshwara Sa and others.4 This decision deals in quite detail with

the scope and ambit of Order VII Rule 11. The propositions laid

down in this decision inter alia are that Order VII Rule 11(d) of the

C.P.C. has limited application and it must be shown that the Suit is

barred by any law. Such a conclusion must be arrived at from the

averments made in the plaint. For the purpose of invoking Order VII

Rule 11(d) no amount of evidence can be looked into. The issue on

merits would not be within the realm of the Court at that stage. To

my mind, there cannot be any dispute with reference to the

aforesaid propositions. However, I fail to see how the same would

apply to the facts and circumstances in the present case. In the facts

and circumstances of the present case, the averments in the plaint

4 AIR 2008 SC 3174

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itself show that the adoption of the Plaintiff was done on 27th

September, 1950 which was more than six years prior to coming

into force of the Hindu Adoptions and Maintenance Act, 1956. As

per Hindu law and prior to the enactment of the said Act, a female

child could never be adopted. Such an adoption, even if done, was

held to be invalid in law. This being the case, I fail to see how this

decision of the Supreme Court in the case of Kamala and others4 can

be of any assistance to the Plaintiff.

22. For all the foregoing reasons, Notice of Motion is allowed

in terms of prayer clause (a) and the plaint is rejected under the

provisions of Order VII Rule 11(d) of the Code of Civil Procedure,

1908. However, in the facts and circumstances of the case, there

shall be no order as to costs.

(B.P. COLABAWALLA, J.)

4 AIR 2008 SC 3174

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