Coming to the merits of the case, I find that the lower appellate court had rejected the application on the ground that the adoption deed executed in favour of the applicant was not validly executed under the Hindu Adoptions and Maintenance Act, 1956. In my view, the lower appellate court had no jurisdiction to go into the validity and legality of the adoption deed which was executed and registered under the Hindu Adoption and Maintenance Act, in view of the provision of Section 16 of the said Act which reads as under:
16. Presumption as to registered documents relating to adoption. - Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. {Para 10}
11. The Supreme Court in the case of Mst. Deu and Anr. v. Laxmi Narayan and Ors. MANU/SC/1351/1998 : (1998)8SCC701 , held:
In view of Section 16 aforesaid whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the persons mentioned therein, the Court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved. According to us, it was not open to the defendants of the said suit for partition to collaterally challenge the said registered deed of partition. In view of Section 16 of the aforesaid Act it was open to them to disprove such deed of adoption but for that they had to take independent proceeding.
12. In view of the aforesaid pronouncement of the Supreme Court, it is clear, that the lower appellate court had no Jurisdiction to question the validity and legality of a document which was registered and in view of the Section 16 of the said Act, it was open to the defendant to disapprove such deed of adoption in an independent proceedings.
IN THE HIGH COURT OF ALLAHABAD
Decided On: 11.01.2007
Ashwani Kumar Vs. Vidya and Ors.
Hon'ble Judges/Coram:
Tarun Agarwala, J.
Citation : AIR 2007 All 105, MANU/UP/0285/2007
1. Heard Shri Shiv Sagar Singh, the learned Counsel for the applicant and Sri N.C. Rajvanshi, the learned senior counsel for the respondents.
2. The suit was dismissed by the trial court. The plaintiff filed an appeal and during its pendency, the plaintiff died. The applicant filed an application to substitute himself as the legal heir of the deceased on the ground that he is the adopted son of the plaintiff by virtue of a registered adoption deed dated 31.1.1984. The defendants filed their objections. The lower appellate court, after considering the matter, rejected the application on the ground that the adoption deed had not been validly executed and simultaneously dismissed the appeal as abated. Aggrieved, the petitioner filed the present application under Article 227 of the Constitution of India.
3. The learned Counsel for the respondents Sri N.C. Rajvanshi raised a preliminary objection that the application under Article 227 of the Constitution of India was not maintainable, inasmuch as the impugned order was a decree within the meaning of Section 2(2) of the C.P.C., and therefore, only an appeal would lie against the said order under Section 100 of the C.P.C. The learned Counsel for the respondents placed reliance upon the provision of Section 2(2) of the C.P.C. and submitted that the lower appellate court had determined the rights of the applicant/petitioner while holding that the adoption deed had not been validly executed. The order of the lower appellate court was passed in consonance with the provision of Order XXII, Rule 5 of the C.P.C. which finally determined the question of the legal representative of the deceased plaintiff/appellant. Consequently, such determination conclusively determined the rights of the party with regard to the matter in controversy in the suit.
4. The learned Counsel for the respondents further submitted that upon the dismissal of the application under Order XXII, Rule 5 of the C.P.C., the lower appellate court also simultaneously dismissed the appeal as abated. Consequently, against the said order, only an appeal could be filed, inasmuch as the said order amounted to a decree under Section 2(2) of the C.P.C.
5. In support of his submission, the learned Counsel placed reliance upon a decision in the case of Brij Jivan Lal and Anr. v. Shiam Lal and Ors. MANU/UP/0018/1950 : AIR1950All57 , on the proposition that a Court deciding that the suit abated in its entirety amounted to a decree and was appealable under Section 96 of the C.P.C. The learned Counsel for the respondents further placed reliance upon the decision in the case of Vidya Wati v. Chambeli AIR 1935 Lah 47 (2), and in the case of Udmi and Ors. v. Hira and Ors. AIR 1920 Lah 338 and the case of Dumi Chand v. Arja Nand and Ors. ILR 1915 37 .
6. In my opinion, the Judgment cited by the learned Counsel for the respondents are totally distinguishable and are not applicable to the facts and circumstances of the present case.
7. In the present case, an application under Order XXII of the C.P.C. has been dismissed on the ground that the adoption deed was not executed in accordance with the Hindu Adoptions and Maintenance Act, 1956. The adjudication made by the trial court, in my opinion, does not amount to a decree as contemplated under Section 2(2) of the C.P.C. nor does it finally determine the question as to who is the legal representative of the deceased under Order XXII, Rule 5 of the C.P.C. In any case, an enquiry under Order XXII, Rule 5 of the C.P.C. is only summary in nature and is not an appealable order. The question whether a person could be permitted to be brought on the record as a legal representative of the deceased is only for the purpose of continuing with the proceedings that had already begun and any adjudication, arrived in the course of such enquiry under Order XXII, Rule 5 of the C.P.C. is not an adjudication contemplated under Section 2(2) of the C.P.C. Consequently, an order passed under Order XXII, Rule 5 of the C.P.C., being summary in nature, could not amount to a decree, as contemplated under Section 2(2) of the C.P.C.
8. In the present case, I find that the application for the substitution was rejected on a technicality and the appeal was dismissed as abated. The court below has not given any finding that the right to sue did not survive upon the applicant. The judgment cited by the learned Counsel for the respondents in the case of Brij Jivan Lal and Anr. v. Shiam Lal and Ors. MANU/UP/0018/1950 : AIR1950All57 , clearly indicates the distinction in the cases dealing with the question of abatement and held that where the right to sue did not survive, such an order determined a formal adjudication which conclusively determined the rights of the parties and that such an order amounted to a decree and was therefore appealable. I am in complete agreement with the principles of law laid down in the aforesaid judgment.
9. In view of the aforesaid, I am of the opinion that the order of the court below, rejecting the application under Order XXII, Rule 5 of the C.P.C., does not amount to a decree, and therefore, the present application under Article 227 of the Constitution of India is maintainable. The preliminary objection raised by the learned Counsel for the respondents Is thus overruled.
10. Coming to the merits of the case, I find that the lower appellate court had rejected the application on the ground that the adoption deed executed in favour of the applicant was not validly executed under the Hindu Adoptions and Maintenance Act, 1956. In my view, the lower appellate court had no jurisdiction to go into the validity and legality of the adoption deed which was executed and registered under the Hindu Adoption and Maintenance Act, in view of the provision of Section 16 of the said Act which reads as under:
16. Presumption as to registered documents relating to adoption. - Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
11. The Supreme Court in the case of Mst. Deu and Anr. v. Laxmi Narayan and Ors. MANU/SC/1351/1998 : (1998)8SCC701 , held:
In view of Section 16 aforesaid whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the persons mentioned therein, the Court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved. According to us, it was not open to the defendants of the said suit for partition to collaterally challenge the said registered deed of partition. In view of Section 16 of the aforesaid Act it was open to them to disprove such deed of adoption but for that they had to take independent proceeding.
12. In view of the aforesaid pronouncement of the Supreme Court, it is clear, that the lower appellate court had no Jurisdiction to question the validity and legality of a document which was registered and in view of the Section 16 of the said Act, it was open to the defendant to disapprove such deed of adoption in an independent proceedings.
13. In view of the aforesaid, the impugned order passed by the lower appellate court cannot be sustained and is quashed. The writ petition is allowed. The lower appellate court, is therefore, directed to pass a consequential order on the substitution application in the light of the observation made above.
In the facts and circumstances of the case, the parties will bear, their own cost.
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