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2013 DIGILAW 1058 (RAJ)

Renu Sharma v. Shailesh Sharma

2013-05-22

ARUN BHANSALI

body2013
JUDGMENT 1. - The petitioner is aggrieved against the order dated 20.02.2013 passed by the trial court, whereby, her application filed under Order 7, Rule 11 CPC has been dismissed. 2. The facts in brief are that the respondent No.1 filed an application under Section 372 of the Indian Succession Act, 1925 ('the Act') seeking succession certificate qua the moveable properties of deceased Prem Chand Sharma. It was claimed that the applicant was adopted son of the deceased. A further plea was raised that an application has been filed by one Rajneesh Sharma before the employer of his father Prem Chand Sharma claiming himself to be the adopted son of deceased Prem Chand Sharma based on a registered adoption deed dated 10.12.1993. It was claimed that the said registered adoption deed was a concocted document and the same does not create any right in favour of said Rajneesh Sharma. After service on the respondents therein, the respondent Rajneesh Sharma died after filing his reply to the said application and after the petitioner-wife of Rajneesh Sharma was brought on record as legal representatives, an application under Order 7, Rule 11 CPC was filed to the effect that the suit was barred in view of the provisions of Section 11 of the Hindu Adoption and Maintenance Act, 1956 ('the Act of 1956'), inasmuch as, in the presence of an adopted son, deceased Prem Chand Sharma could not have adopted the applicant Shailesh Sharma and, therefore, the application under Section 372 of the Act was liable to be dismissed as barred by law. 3. 3. The trial court after hearing the parties has rejected the application by the impugned order after coming to the conclusion that the validity of the documents executed in favour of late Rajneesh Sharma adopting him as son by Prem Chand Sharma is required to be adjudicated first and it is only on the Court coming to the conclusion that the document was liable to be considered then only, the consequences under Section 11 of the Act of 1956, which deals with conditions for a valid adoption and, inter alia, provides that if a adopted son is living at the time of adoption the father/mother cannot adopt another person and as a registered adoption deed dated 10.12.1993 exists, the another registered adoption deed dated 29.07.2004 is a void document and the same cannot form basis for grant of succession certificate under Section 372 of the Act and, consequently, the application being barred by law was liable to be rejected under the provisions of Order 6, Rule 11B CPC. 4. The contentions raised by learned counsel for the petitioner had been opposed by the learned counsel for the respondent Nos.1 to 6. 5. It was submitted that the validity of the adoption deed of 1993 in favour of Rajneesh Sharma is yet to be examined by the Court and in absence thereof it cannot be said that adoption in favour of Shailesh Sharma was void. 6. Having heard learned counsel for the parties, this Court is of the firm opinion that the application under Order 7, Rule 11 CPC is wholly misconceived and the same was rightly rejected by the trial court. 7. A bare reading of the application for succession certificate filed by the respondents reveals that he has before hand questioned the validity of registered adoption deed dated 10.12.1993 said to have been executed in favour of Rajneesh Sharma. 8. Merely because a document is a registered document, it cannot be said that its execution and/or validity cannot be questioned. 9. Based on the pleadings of the parties, it is for the trial court to frame a proper issue and come to a conclusion regarding validity of the adoption deed dated 10.12.1993 and/or 29.07.2004. If the Court comes to the conclusion that adoption deed dated 10.12.1993 was in fact executed in favour of Rajneesh Sharma, the consequences as envisaged under the Act of 1956 would follow. If the Court comes to the conclusion that adoption deed dated 10.12.1993 was in fact executed in favour of Rajneesh Sharma, the consequences as envisaged under the Act of 1956 would follow. In absence thereof, the adoption deed dated 29.07.2004 would be legal and valid and in that case also the consequences would follow. The validity of any of the adoption deeds could not be assumed by the trial court so as to reject the application under Order 7, Rule 11 CPC. 10. Consequently, there is no substance in the revision petition and the same is, therefore, dismissed. 11. It is prayed by learned counsel for the petitioner that the trial court has imposed a cost of Rs. 3,000/-, which may be made easy.The said prayer is not opposed and, therefore, the cost imposed by the trial court is made easy. It is expected of the parties to expedite the hearing of the main case as the costs appeared to have been imposed on account of the conduct of the petitioner.Petition Dismissed. *******