M. GURUDAS AND ORS. versus RASARANJAN AND ORS.

Citation: [2006] SUPP. 6 S.C.R. 103 · Decided: 13-09-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

M. GURUDAS AND ORS. 
A 
v. 
RASARANJAN AND ORS. 
SEPTEMBER 13, 2006 
[S.B. SINHA AND DALVEER BHANDARI, JJ.] 
B 
Hindu law: 
Hindu ado ... tion--Valid adoption--Necessity of-Held: There should be 
an actual giving and taking ceremony-Pe1formance of datta homm imperative C 
to constitute valid adoption subject to exception-Adoption of daughter is 
invalid under Hindu law-Person adopted is to be male-On facts, natural 
heirs of a female, who is allegedly adopted by her uncle, restraining their 
predecessor's natural brothers and sons from alienating the property on the 
ground that their predecessor inherited her uncle's property on his death as D 
she w~s adopted by her uncle-However, predecessor not being validly adopted 
daughter of her uncle nor adoption permissible in law, the female could claim 
interest in share of her natural father's property which fell to his share on 
partition with his brothers. 
Code of Civil Procedure. 1908--0rder 39, rules 1 and 2--/njunction-- E 
Conditions for grant of-Held: Court is to consider prima facie case, balance 
of convenience and irreparable injury-Plaintiff's contention should be 
bonafide--Question to be tried must be se~ious issue and not merely triable--
Conduct of both defendants and plaintiffs is relevant-Court to see whether 
plaintiffs have pre-varicated their stand from stage to stage-It would look F 
into the documents produced in terms of Order 41, Rule 27-This coun must 
not confine itself only to the questions raised before the courts below-It 
would consider questions of law, though raised for the first time-On facts, 
court erred in granting injunction restraining the party from alienating the 
property-Order 41, Rule 27. 
0 and K were in joint possession of suit properties. 0 died in 1949. 
·He had no issue and it is alleged that he adopted N, natural daughter of 
K during his life time. 0 had executed gift deed in favour of N shr wing 
her as daughter of K but under his guardianship. K died in 1961 leaving 
103 
G 
H 
104 
SUPREME COURT REPORTS (20061 SUPP. 6 S.C.R. 
A seven sons and daughter N. Respondent-plaintiffs are natural heirs of N. 
Respondents claimed that N being adoptPd daughter of 0, inherited 
property on the death of 0. Children of K, G and others and their sons 
are the appellants. A purported partition took place between K and his 
sons in 1954. N was not given any share. However, K transferred three 
properties in favour of N as a trustee, referring her to be the foster 
B daughter of 0 and describing the said properties to be held in trust. 
c 
According to the appellants, the joint family property devolved by 
survivorship to K; and that N during her life time, never claimed to be 
an adopted daughter and she did not have any interest in the joint f~mily 
properties. 
Respondents filed suit for partition of the suit Schedule and allotment 
in their favour; and for permanent injunction to restrain the defendants 
from alienating the suit properties. Thereafter, amendment application 
was filed that since the parties belonged to Brahmo Samaj .faith, N could 
claim as natural daughter of K; and that N was adopted when she was 
D about three years old. Appellants filed an application for rejection of the 
plaint in terms of Order VII, Rule 11 CPC and the same was dismissed. 
Thereafter, application for injunction was filed and appellants were 
restrained from dealing with the properties. High Court then passed an 
interim order directing that no alienation would take place, save and 
E except the share of the builders. The said order was modified directing 
that the development of the said property would be subject to restriction 
in regard to dealing therewith. Further, application for modification of 
the order was filed but the same was dismissed. Hence the present appeals. 
Appellants contended that the High Court erred in restraining the 
p appellants from alienating the property; that the properties should be 
allowed to be utilized as the constructions thereof had been permitted to 
be completed; that the builders having been permitted to dispose of their 
share, only few Oats remains to be sold. thus, having regard to the claim 
of the respondents, order of injunction may be confined to only 3 Oats; 
that the property which was the subject matter of the other Civil Appeal 
G being self-acquired and commercial property, the same may be allowed 
to be transferred subject to certain conditions; that N having admitted 
the nature of her in

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