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2007 DIGILAW 884 (JHR)

Shambhu Nath Yadav v. Pradeep Kumar Yadav

2007-11-30

N.N.TIWARI

body2007
Order I.A. No. 2234 of 2006 In this I.A., the applicant has prayed for his substitution in place of sole appellant, Rudrawati Devi, who died on 26.6.2006 leaving behind the applicant as the only heir and legal representative being the son of the younger brother of her husband. It has been stated that the appellant's husband died earlier and the two brothers of her husband, namely, Bisheshwar Mahto died issueless. Hari Chand Mahto died leaving behind this applicant as the only son and legal heir and representative. The applicant has sought substitution in place of the deceased sole appellant. 2. This Second Appeal arises out of a cause in which the appellant, who is said to have executed the deed of adoption in favour of respondent no. 1, was assailed in the suit. The defendant-respondent no. 1 claims to have adopted by the appellant (widow) of late Garbhu Mahto. The appellant had disputed the said adoption. The judgment and decree, which was passed against the appellant, has been challenged in the Second Appeal. 3. Mr. J.P. Jha, learned senior counsel for the respondent no.1 seriously contested this application stating, inter alia, that the appellant had assailed the adoption of respondent no. 1, but since the appellant died, the respondent no.1 being the adopted son, no cause survives particularly for the heir of the husband of the appellant and the suit itself becomes abated and the same should be dismissed. 4. Mr. V. Shivnath learned senior counsel appearing for the applicant submitted that the right to sue does not end with the death of the appellant as she had assailed the deed of adoption and she had challenged the judgment and decree passed against the appellant. In the event the impugned judgment and decree are set aside, the applicant shall inherit the estate of the appellant being the only surviving heir of the appellant's husband and, as such, the applicant alone is entitled to be substituted in place of the appellant to contest the adoption and to continue with the appeal in which the judgment and decree of the learned Court below upholding adoption has been assailed. Learned counsel submitted that since the Second Appeal has been admitted for hearing by framing substantial questions of law, legality and validity of the adoption itself is to be decided for answering the said substantial questions. Learned counsel submitted that since the Second Appeal has been admitted for hearing by framing substantial questions of law, legality and validity of the adoption itself is to be decided for answering the said substantial questions. In view of the substantial questions, the applicant becomes most interested person as in absence of adoption, he would inherit the property and estate of the deceased appellant. 5. I have heard learned counsel for the parties and perused the records. The Second Appeal has been admitted by order dated 12.11.2002 on the following substantial questions of law:- 1. "Whether in absence of any custom or usage applicable to the parties, defendant no.1, who was said to be more than 15 years old at the time of adoption can be said to have been legally adopted? 2. Whether it was defendants' onus to prove that his vendor, a rustic-pardanasin lady had knowledge of the nature of deed (Exhibit A/1) she had executed?" 6. The said substantial questions are, thus, regarding the validity and legality of the deed of adoption on the basis of which the respondent no. 1 claims to be adopted as son of the deceased appellant. If the said question answered against the respondent no.1, it has been admitted by the learned counsel for the respondents that the property shall be inherited by this applicant. Certainly in such circumstances, right to sue survives with this applicant in the appeal and till validity of adoption of respondent no. 1 is finally set at rest by the judicial decision. The applicant thus becomes entitled to be substituted as legal representative of the deceased appellant being the heir of her husband. 7. In view thereof, this I.A. is allowed. Let the applicant, Shambu Nath Yadav be substituted in place of the appellant, Rudrawati Devi. 8. I.A. No. 2234 of 2006 stands disposed of.