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2000 DIGILAW 135 (GAU)

Gyan Chand Patni v. Sushil Itumar Patni

2000-03-28

N.SURJAMANI SINGH, P.C.PHUKAN

body2000
P. C. Phukan, J.— This appeal is directed against the common order dated 11.6.97 passed by the learned Additional District Judge HI, Manipur dismissing the Judicial Misc Case No.248-86/20-87 instituted by the appellant-plaintiffs by refusing to make absolute the order granting exparte interim injunction and allowing the Judicial Misc Case No.262-86/10-87 instituted by the respondents-defendants for vacating the order granting exparte interim injunction. 2. We have heard at length Mr. A. Nilamani, learned senior counsel for the appellant-plaintiffs as well as Mr. L. Nandakumar Singh, learned senior counsel for the respondents-defendants. We have also considered the records. 3. Admittedly, the parties belong to Khandelwal Saraogi Sect of Digambar Jain community. The suit property belonged to on Deepchand Patni. He died unmarried on 18.5.86 leaving the plaintiffs, who are his step brothers and the defendant No. 1, who is his step sister. The defendant No.2 claim to be the adopted son of the deceased Deepchand and claim the suit property to the exclusion of the plaintiffs and the defendant No.l. The plaintiffs and the defendant No.l assert that the h alleged adoption was void in view of provisions in section 10 (iv) of the Hindu Adoption and Maintenance Act, 1956 as the defendant No.2 was then 15 years of age and there is no custom or usage applicable to the parties permitting adoption of persons above 15 years of age. They further allege that there was no ceremony of giving and taking, and the alleged Adoption Deed dated 23.10.85 is a forged document. They, therefore, instituted Original Suit No.75-86/26-87 for declaration of their title over the suit property as nearest natural heirs of the deceased, for declaration that the alleged Adoption Deed is void and also for permanent injunction against the defendant No.2..The plaintiffs and the defendant No. 1 also instituted Judicial Misc Case No.248-86/20-87 for ad-interim temporary injunction. The learned Additional District Judge at Imphal granted exparte interim injunction. The defendant No.2 then instituted Judicial Misc Case No.262-86/10-87 for vacating the same. After hearing learned counsel for the parties, the learned Additional District Judge disposed of both the Judicial Misc cases by vacating the exparte interim injunction vide the common order dated 11.6.87 impugned in this appeal. 4. Mr. The defendant No.2 then instituted Judicial Misc Case No.262-86/10-87 for vacating the same. After hearing learned counsel for the parties, the learned Additional District Judge disposed of both the Judicial Misc cases by vacating the exparte interim injunction vide the common order dated 11.6.87 impugned in this appeal. 4. Mr. Nilamani, learned senior counsel for the appellant-plaintiffs, contends that since the defendant No.2 was admittedly above 15 years of age at the relevant time, he could not have been legally adopted in view of the provisions in section 10 (iv) of the Hindu Adoption and Maintenance Act, 1956 (herein after called the Act). The relevant portion thereof reads : “10. No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely: (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.” 5. Mr. Nilamani, learned senior counsel for the appellant-plaintiffs, strenuously argues that none of the case laws cited on behalf of the respondent-defendant No.2 with regard to the permissible age of Adoption under the custom and usage mentioned therein is applicable to the parties of the instant case belonging to Khandelwal Saraogi Sect of Digambar Jain community, and hence learned trial Court erred in law and facts by placing reliance on those case laws to hold that the alleged adoption of the respondent-defendant No.2 was not in contravention of section 10 (iv) of the Act. We have, however, found that in Manoharlal vs. Banarani Das, 29 ILR (Allhabad) 495 cited on behalf of the respondent-defendant No.2, the parties were Saraogi Agarwals; Mulchand at the time of his alleged adoption was a married man aged about 23 years. We have, however, found that in Manoharlal vs. Banarani Das, 29 ILR (Allhabad) 495 cited on behalf of the respondent-defendant No.2, the parties were Saraogi Agarwals; Mulchand at the time of his alleged adoption was a married man aged about 23 years. The Court held : “After a careful consideration of the case, we have come to the conclusion that the evidence satisfactorily shows that the Jains in the.se parts donot regard marriage as a bar to the eligibility of a youth for adoption; that married as well as unmarried boys are amongst them eligible.” In Hari Gopal Agarwalla's case reported in (1982) 1 GLR 117, it has been held: “What has been stated about non application of rules of strict Hindu Law in so far as adoption by Jains except those originally coming from Madras and Punjab is concerned it would apply to all Jains. This has been conclusively laid down by the Supreme Court in Munilal vs. Rajkumar, AIR 1962 SC1493; which dealt with adoption by Digambar Jains of Porwal Sect in Madhya Pradesh, The Supreme Court referred to a large number of decisions .... and held in para 11 that these cases clearly showed that the custom is generally applicable to Jains all over India except the Jains domiciled in Madras and Punjab. This was so irrespective of the Sect to which a particular Jain belonged. It was also observed that where a custom is repeatedly brought to the notice of the Courts of the country, the Courts may hold that custom as introduced into the law without necessity of proof in each individual case.” 6. In view of the above, it cannot be said that the respondent-defendant No.2 has failed to show even prima facie that there is a custom applicable to the parties in the instant case permitting adoption of person above 15 years of age. 7. The next point urged by Mr. Nilamani, learned senior counsel for the appellants-plaintiffs, is that there was no ceremony of giving and taking. The original registered Deed of Adoption dated 23.10.85 produced before the Court recites that the ceremony of giving and taking has been duly performed along with other religious ceremonies in presence of the relatives and friends. 7. The next point urged by Mr. Nilamani, learned senior counsel for the appellants-plaintiffs, is that there was no ceremony of giving and taking. The original registered Deed of Adoption dated 23.10.85 produced before the Court recites that the ceremony of giving and taking has been duly performed along with other religious ceremonies in presence of the relatives and friends. In Devgonda Raygonda Patil vs. Shamgonda Raygonda Patil reported in AIR 1992 Bombay-189, it has been held that if the adoption is disputed, it is for the plaintiffs to prove that ceremony of giving and taking has not taken place. 8. Another point on which elaborate arguments has been advanced is that the Adoption Deed is a forged document. It is alleged that some of the signatures , alleged to be of late Deepchand are not genuine, that only rolled thumb impressions of the natural parents of the respondent-defendant No.2 were obtained in the register and of late Deepchand was not obtained therein in contravention of Rule 47 of the Manipur Registration Rules, 1951, and that the registration of the Adoption Deed as a visit case in absence of any special cause was in contravention of section 31 and 38 of the Registration Act, 1908. The genuineness or otherwise of the signatures can be proved or disproved by evidence in the course of trial. Before the trial begins, elaborate documentation of the merits of this and other matters mentioned above is to be avoided while passing orders on application for ad-interim temporary injunction. In this regard, Mr. Nandakumar Singh, learned senior counsel for the respondent-defendant No.2, points out to section 16 of the Act. The section reads : “16. 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.” 9. In the instant case, the registered Adoption Deed dated 23.10.35 signed by the person giving and the person taking in adoption was produced before the Court. In the instant case, the registered Adoption Deed dated 23.10.35 signed by the person giving and the person taking in adoption was produced before the Court. In A1 man's case, (1998) 8 Supreme Court Cases 693, it has been held: “Learned counsel appearing on behalf of the appellant urged that once the conditions prescribed by section 16 of the Hindu Adoption and Maintenance Act, 1956 in respect of the execution and registration of a Deed of Adoption has been complied with, it is to be presumed that the adoption has been in accordance with the provisions of the said Act unless and until it was disproved. In view of section 16, a presumption has to be drawn by the Court. But such presumption can always be rebutted on the basis of evidence adduced before the Court concerned.” 10. In the instant case, such evidence is yet to be adduced before the Court concerned in the course of trial. At this stage it cannot be said that the adoption was not made in compliance with the provisions of the Act. 11. Apart from the question as to the validity or otherwise of the adoption, we need to turn to the fact situation as regards the suit property. It is submitted that the major portion of the suit property has been under occupation of the respondent-defendant No.2 and the rents in respect of the remaining portion under occupation of the tenants also been collected by him. In para 24 of the impugned order dated 11.6.87 the learned Additional District Judge stated : “The plaintiffs to not contend that they ever realised rents from the tenants ... the copies of rent receipts filed by the defendant No.2 go to show that Rousenlal Chourasia and Kapil Dev have paid rents for some months to the defendant No.2.Under the circumstance of the case and nature of possession and occupation of the suit properties, the balance of convenience in relation to issue of interim injunction is not shown to be in favour of the plaintiffs. Taking into consideration these facts and circumstances, I am of the opinion that no irreparable injury would be caused to the plaintiffs if ad-interim injunction is not granted.” 12. In the facts and circumstances of the case, we find no reason to differ from the above view taken by the learned Additional District Judge. Taking into consideration these facts and circumstances, I am of the opinion that no irreparable injury would be caused to the plaintiffs if ad-interim injunction is not granted.” 12. In the facts and circumstances of the case, we find no reason to differ from the above view taken by the learned Additional District Judge. He rightly rejected the appellants-plaintiffs' prayer for interim injunction inasmuch as if the suit is ultimately decided in their favour, they can be compensated in terms of money, and it has not be shown that their inconvenience would far exceed the convenience of the defendant No.2 in the even refusal of their prayer for interim injunction. 13. We do not intend to say more that what we have already said about the merit of the case. We are anxious not to prejudge or prejudice the case of either side. The learned trial Court shall not be influenced by any observation we have made here for the purpose of disposing of the injunction matter only. 14. The concluding paragraph of the impugned order reads : “In the result, the plaintiffs are not entitled to issue of temporary injunction. But the plaintiffs' application so far as it relates to other just and equitable order should be allowed to the extent that the defendant No.2 should be ordered to execute a formal undertaking of Rs.40,000 that he shall keep and furnish true and complete accounts of the rents and other profits of the suit property collected and received by him and all monies spent therefrom in maintaining the present position of the suit property in the Court-for every three months before 15th of the month immediately succeeding the period.” 15. We find the above directions just and equitable. We further direct that status quo as regards the suit property shall be maintained and the respondent-defendant No.2 shall not make any construction thereon except normal repairs. 16. The' impugned order dated 11.6.87 is upheld. The appeal fails and is dismissed. In the facts and circumstances of the case, the parties are left to bear their own costs. 17. The suit being Original Suit No.75-86/26-87 has been pending since a pretty long time and, as such, it requires expeditious disposal in accordance with law. 16. The' impugned order dated 11.6.87 is upheld. The appeal fails and is dismissed. In the facts and circumstances of the case, the parties are left to bear their own costs. 17. The suit being Original Suit No.75-86/26-87 has been pending since a pretty long time and, as such, it requires expeditious disposal in accordance with law. Considering the existing facts and circumstances of the case, it is ordered that the said original suit shall be tried by the learned District Judge, Manipur East at Imphal and it is made clear that the learned District Judge shall dispose of the said case within a period of 4 (four) months from 4.4.2000 for which the parties shall appear before the trial Court i.e. the Court of the District Judge, Manipur East at Imphal on 4.4.2000 at 10.30 AM for the purpose of receiving directions of that Court as to further proceedings in the suit. 18. Let the lower Court records along with a copy of the judgment and order of this Court be transmitted forthwith to the trial Court, i.e. the Court of the District Judge, Manipur East at Imphal so as to reach that Court before 4.4.2000. 19. The trial Court shall dispose of this long pending case within four months from the above mentioned date.