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2013 DIGILAW 388 (UTT)

SANDHYA PANWAR v. JIVAN SINGH

2013-06-26

B.S.VERMA

body2013
JUDGMENT Hon’ble B.S. Verma, J. (Oral) By means of this writ petition, the petitioners have prayed to issue a writ or direction in the nature of certiorari for quashing the impugned judgment and order dated 15.12.2010, passed by learned Additional District Judge/FTC-II, Dehradun in Civil Appeal No. 53 of 2009, Jeevan Singh & another Vs Shri Kanwar Singh & another whereby the revisional court has given permission to the plaintiff to move fresh amendment application in respect of factum of adoption within a period of one month. 2. Brief facts, giving rise to this petition, are that an amendment application was filed by the plaintiff (annexure No. 4 to the writ petition) to amend the suit and sought permission to incorporate following paragraphs in the plaint:- “8A. That Smt. Sandhya, the sister of the plaintiffs was adopted by Shri Surender Kumar Verma in the year 1968. At the time of adoption, the aforesaid Smt. Sandhya was aged about 10 years. Since the day of adoption, Smt. Sandhya severed her all connections from the family of her natural parents and became a part of the family of Shri Surinder Kumar Verma. 8(B) That from the day of adoption in the family of Shri Surinder Kumar Verma, Smt. Sandhya lost her rights and inheritance from the family of Shri Balbir Singh, on this ground alone, the defendant No. 2 cannot claim any right in the property in dispute.” 3. The application was heard by the learned Additional Civil Judge (S.D.)/ACJM IInd, Dehradun and vide order dated 30.04.2009 the same was rejected on the ground that the plaintiffs want to withdraw the admission made by them in the plaint that Smt. Sandhya Singh Panwar (defendant No. 2) is the sister of the plaintiffs and Shri Kanwar Singh Panwar (defendant No. 1) is her husband. 4. Aggrieved by the order of rejection, the plaintiffs have preferred revision before the learned District Judge. The revisional court after hearing learned counsel for the parties, dismissed the same on the ground that the application is vague and no particulars have been mentioned of adoption and particulars of the person who had adopted defendant No. 2. But at the same time liberty was given to move fresh amendment application giving details of adoption. The revisional court after hearing learned counsel for the parties, dismissed the same on the ground that the application is vague and no particulars have been mentioned of adoption and particulars of the person who had adopted defendant No. 2. But at the same time liberty was given to move fresh amendment application giving details of adoption. In view of the provision of Section 12 of the Hindu Adoption & Maintenance Act (in short ‘Act’), the family, who has adopted the child is not barred to have a relation with her as a sister. I have perused Section 12 of the Act, which is mentioned below:- “12 Effects of adoption An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: PROVIDED that - (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.” 5. In view of the above so far as sub sections of proviso of Section 12 of the Act are concerned, they do not speak about the relationship. Sub section (a) provides for the degrees of the prohibition of marriage, sub-section (b) provides for the property which had already been vested in the adopted child and sub-section (c) provides that the adopted child shall not divest any person of any estate. Sub section (a) provides for the degrees of the prohibition of marriage, sub-section (b) provides for the property which had already been vested in the adopted child and sub-section (c) provides that the adopted child shall not divest any person of any estate. Language of Section 12 of the Act is very clear that adopted child shall be deemed to be a child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from that date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. 6. Therefore, the term ‘all the ties’ as it appears in section 12 of the Act means relationship. The learned revisional court by misreading Section 12 of the Act, has given permission to amend the plaint and to move fresh amendment application for giving details of adoption within a month. This part of the order cannot be sustained in the eye of law and the same is hereby set aside. The application moved pursuant to the order passed by the revisional court cannot be maintained. The order passed by the trial court is affirmed. Even otherwise the plaintiff cannot set up a new case by way of amendment. 7. In view of the above observation, the writ petition is partly allowed. The part of the order to give permission to file fresh amendment application is set aside.