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2006 DIGILAW 2660 (RAJ)

Krishna Rustagi v. Subhash Chand Rustagi

2006-09-06

R.S.CHAUHAN

body2006
Judgment R.S. Chauhan, J.-The defendant-appellant has challenged the order dated 18.02.2003 passed by the Addl. District Judge No. 1, Alwar, whereby the learned Judge had allowed the application of the plaintiff -respondent under Order 39 Rule 1 and 2 read with Section 151 CPC, and had restrained the appellant from transferring the undivided half share of the plaintiff in the properties of Shri Deendayal Rustagi during the pendency of the suit. 2. The brief facts of the case are that the plaintiff -respondent (henceforth to be referred to as `the respondent` for short) filed a suit for partition, rendition of accounts and permanent injunction alongwith an application under Order 39 Rule 1 and 2 read with Section 151 CPC, in the plaint he claimed that he is the adopted son of late Shri Deendayal Rustagi and of his first wife Smt. Kamla. Smt. Kamla expired on 01.07.1977. Thereafter Shri Deendayal Rustagi married present appellant before us, Smt. Krishna Rustagi. He further stated that since there was no issue of Shri Deendayal from Smt. Kamla despite marriage of eighteen years and since the respondent was the son of Deendayals sister Smt. Vidya Devi, after the death of Smt. Vidya Devi, he was brought up by Shri Deendayal and Smt. Kamla Devi. Since he lived with them for a long time, a natual love and affection developed between the couple and the child. Subsequently, on 111.1971 Shri Deendayal adopted the respondent with the consent of his wife, Smt. Kamla. According to the respondent although he was above 15 years of age at the time of adoption, but according to the custom of his community, child above the said age can be adopted. The respondent was given into adoption by his biological father Shri Bhagwan Das. He further stated that after the said adoption the Life Insurance Policy, his driving licence, his residence certificate, his post-office saving bank account and a Smarika issued by Rustagi Sabha, Alwar, all showed Shri Deendayal Rustagi as his father. He further claimed that as the adopted son he had performed the last rites of Shri Deendayal on 20.08.1997 and had published the notice about "Tiye Ki Baithak" and "Rasm Pagdi". "Rasm Pagdi" in fact took place on 31.08.1997 in the presence of the family members, relatives and the appellant. Moreover, he claimed that Shri Deendayal has left four properties situated in different parts of Alwar. "Rasm Pagdi" in fact took place on 31.08.1997 in the presence of the family members, relatives and the appellant. Moreover, he claimed that Shri Deendayal has left four properties situated in different parts of Alwar. Being the adopted son, he staked his claim to half of the properties so left by his father. Hence, the suit for partition, rendition of accounts and permanent injuction. 3. On the other hand, the appellant in her written statement denied the averments made by the respondent. She claimed that there is no custom in their community for adopting child above the age of 15 years. Moreover, the said adoption was not done with the consent of Smt. Kamla, the then wife of Shri Deendayal. She further alleged that the documents produced by the respondent were created with the intention to deprive her of the properties of Shri Deendayal. She further claimed that Shri Deendeyal, as an Advocate had employed the respondent as a typist. According to her, none of the education certificate of the respondent show Shri Deendayal as his father. After hearing both the parties vide order dated 18.02.2003 the learned Judge granted them temporary injunction as mentioned above. Hence, this appeal before this Court. 4. Mr. Gopal Garg, the learned Counsel for the appellant, has vehemently raised a number of contentions before us. Firstly, that the suit filed by the respondent is not a declaratory suit with regard to the factum of his adoption. Secondly, till he is declared as adoptive son, he cannot claim half of the share in the properties of Shri Deendayal. Thirdly, that the respondent was merely maintained by Shri Deendayal as he was his nephew and had lost his mother. He was also employed as a typist in the office of Shri Deendayal and was paid as such. Fourthly, that none of the educational certificates reveal Shri Deendyal as his father. Instead, all the educational certificate reveal Shri Bhagwan Das as his father. Fifthly, that the documents submitted by the respondents were created by him in order to deprive the appellant of her rightful properties. Sixthly, that in Hindu Law, a child of more than 15 years cannot be adopted. Lastly, that one of the properties enumerated in the plaint, namely the property situated at Lal Darwaja was purchased by the appellant with her own money. Sixthly, that in Hindu Law, a child of more than 15 years cannot be adopted. Lastly, that one of the properties enumerated in the plaint, namely the property situated at Lal Darwaja was purchased by the appellant with her own money. Thus, the said property is a self -acquired property of the appellant. Therefore, she cannot be restrained from alienating the said property as she is the absolute owner of the said property. 5. On the other hand, Mr. Parag Rastogi, the learned Counsel for the respondent, has strenuously argued that the respondent happens to be the son of Shri Deendayals sister. The sister had died when the respondent was only six months old. Since Shri Deendayal and his wife Smt. Kamla did not have any child of their own, the couple had taken the child into their home. The respondent was not only educated and brought up by them, but eventually he was also adopted by them on 111.1971. Thirdly, that by the date of adoption, the respondent had already completed his secondary education. Therefore, the certificate issued by the Board of Secondary Education shows the name of his biological father and not of his adoptive father. But, subsequently the other documents clearly reveal Shri Deendayal as his adoptive father. Fourthly, at the time of Smarika published by the `Sabha`, Shri Deendayal was its Chairman. This Smarika clearly reveals the respondent to be the son of Shri Deendayal -a fact not controverted or challenged by Shri Deendayal during his life time. Hence, according to the learned Counsel, there is ample evidence to prove that the respondent is the adoptive son of Shri Deendayal. Fifthly, that although there is a sale-deed with regard to one of the properties in the name of the appellant, but the said property was bought for the benefit of the family. Therefore, it cannot be termed as a self-acquired property. In fact the question as to who made the payment for purchase of the property is a question to be decided by the trial Court after evidence is produced before the trial Court. Sixthly, that while deciding the temporary injunction the Court is not required to hold a mini-trial. In fact while considering the grant of temporary injunction the probative value of a document cannot be examined while assessing the prima facie case of the plaintiff . Sixthly, that while deciding the temporary injunction the Court is not required to hold a mini-trial. In fact while considering the grant of temporary injunction the probative value of a document cannot be examined while assessing the prima facie case of the plaintiff . Lastly, he has argued that the jurisdiction of the appellate Court while interfering with the order of the injunction is extremely limited. In order to buttress his legal contentions, learned Counsel has relied upon the case of Anand Prasad Agarwalla vs. Tarkeshwar Prasad & Ors., 2001 (5) SCC 568 , Narendra Singh Rajawat & Ors. vs. Thakur Mohan Singh Kanota & Ors., 2002 (2) WLC (Raj) 362, Mishri Lal & Anr. vs. Ram Dev & Ors., 1998 WLC (Raj) UC 610, The Rajasthan State Electricity Board vs. Mool Chand Jangir, 1993 (3) WLC (Raj) 338, and lastly on Hemraj vs. Executive Officer Nagar Palika Indragarh, 1999 WLC (UC) 319. 6. We have heard both the learned Counsels and have perused the impugned order. 7. It is, indeed, a settled principle of law that the proceedings pertaining to grant of temporary injunction are supplementary in nature. Therefore, the Court should refrain from giving any finding on the merits of the case. Hence we refrain from entering into the question whether the respondent is the adopted son of Shri Deendayal and Smt. Kamla or not. For, any observation made by this Court would adversely affect the final outcome of the suit pending before the trial Court. But, prima Facie, there is evidence to justify the absence of Shri Deendayals name in the educational certificate of the respondent. Moreover, since in the Smarika published at a time when Shri Deendayal was the Chairman of the `Sabha`, which published the same Smarika, and since this Smarika shows the respondent as his son -a fact never denied by Shri Deendayal, there is strong prima facie case in favour of the respondent that he is the adopted son of Shri Deendayal Sharma. As his adopted son, the respondent would be entitled to half the share in Shri Deendayals property. Whether one of the properties was actually self -acquired by the appellant or not, whether the said property was bought for the benefit of the family of Shri Deendayal, but in the appellants name or not these issues can be decided finally after completion of the trial. Whether one of the properties was actually self -acquired by the appellant or not, whether the said property was bought for the benefit of the family of Shri Deendayal, but in the appellants name or not these issues can be decided finally after completion of the trial. Such issues and the probative value of the sale-deed submitted before the trial Court and this Court cannot be decided at this juncture. Their Lordships of the Supreme Court have held in the case of Anand Prakash Agarwalla (Supra) that "it may not be appropriate for any Court to hold a mini trial at the stage of grant of temporary injunction". Similarly this Court has held in the case of Mishri Lal & Anr. (Supra) that "the Court examines the documents only for the purpose of seeing whether a prima facie case is made out or not. If in an application under Order 39 Rule 1 and 2 CPC, the Court started finally determining the probative value of a document, great injustice will be done to the parties". Hence this Court declines to make any observation with regard to probative value of the sale-deed in the name of the appellant. Since the suit is for partition of the properties belonging to Shri Deendayal, the property needs to be protected during the pendency of the trial. In case the property is alienated, in case its nature is changed and third party rights are created, it would lead to a roller-coaster of litigation. Multiplicity of litigation should be avoided. Hence, the need of the hour is the protection of the property. Therefore, this Court is not inclined to interfere with the impugned order dated 18.02.2003. However, as the partition suit has been hanging fire Since 1999, i.e., for the last seven years, we direct the trial Court to complete the trial within a period of six months. 8. With these observation this appeal is dismissed.