ORDER : Prasanta Kumar Deka, J. Heard Mr. B. Sarma, learned counsel for the appellants and Mr. K.K. Mahanta, learned Senior Counsel assisted by Mr. B. Deka, learned counsel for the respondent. 2. The present appellants as plaintiffs filed Title Suit No. 87/2006 in the learned court of Munsiff at Jorhat for declaration of right, title and interest over the suit premises described in schedule-B including the shop premises described in schedule-C and for declaration of deeds or agreement or any other documents executed amongst the defendant respondent, late Imarty Devi(mother) and proforma defendant(sister) to which the plaintiff appellant No.1 is not a party as void and legally unenforceable and permanent injunction. Mangilal Modi(Agarwal), Gobind Lal Modi (Agarwal), Panna Lal Modi (Agarwal), Lalchand Modi (Agarwal) and Rameswar Modi (Agarwal) were brothers. The said brothers inherited ancestral property situated at Jorhat and Gaurisagar in the district of Sivasagar. Lalchand and Rameswar opted to shift to Gaurisagar and settled there on the basis of family settlement amongst the brothers leaving aside, Mangilal Modi(Agarwal), Gobind Lal Modi (Agarwal) and Panna Lal Modi (Agarwal) at Jorhat keeping under their possession land measuring 2 kathas 16 lechas with permanent structures described in schedule A of the plaint. During the life time of Mangilal Modi(Agarwal) the schedule A land was divided into three equal shares amongst the brothers Mangilal Modi (Agarwal), Gobind Lal Modi (Agarwal), Panna Lal Modi (Agarwal) situated at Jorhat. On the basis of said arrangement Mangilal Modi (Agarwal) was entitled to 18? lechas out of total A-Schedule land. Mangilal Modi died in the year 1966 leaving behind his wife Imarty Devi, Bangshidhar Modi(Plaintiff No.1) and Premsukh Modi(defendant No.1) both sons and four daughters who were married in between 1961 and 1977. One of the daughters Kaushalya Devi, deserted her husband in the year 1977 and stayed with her mother. Kaushalya was impleaded as the proforma defendant. The suit was filed for the reliefs mentioned hereinabove by Bangshidhar as plaintiff No.1 and his two sons against Prem Sukh @ Premchand Modi, the sole main defendant respondent. Rameswar Lal Modi died issueless and his wife adopted Premsukh @ Premchand Modi, the defendant respondent and as such he moved and started residing at Gaurisagar over the share of his adopted father Rameswar Lal. Rameswar Lal Modi died issueless and his wife adopted Premsukh @ Premchand Modi, the defendant respondent and as such he moved and started residing at Gaurisagar over the share of his adopted father Rameswar Lal. The plaintiff appellant No. 1 provided maintenance to his sister who deserted her husband and started residing over the backyard of schedule B land which is the share of Mangilal. On the death of Mangilal before adoption of Premsukh the plaintiff appellant No. 1 and the defendant respondent alongwith their mother jointly inherited the schedule B property with all structures. The plaintiff appellant No. 1 and defendant respondent had joint business under the name and style M/s Mangilal Bangshidhar. The ground floor of the house standing over B schedule land was used for the business purpose of plaintiff appellant No. 1 and the defendant respondent and the first floor used as residence of the plaintiff appellant No. 1. On 1.12.1972 the shop premises over the schedule-B land was divided by way of partition between the plaintiff appellant No. 1 and the defendant respondent on the basis of an agreement. The residence of plaintiff appellant No. 1 was left undisturbed who continued his possession with his family. 3. Rameswar Modi died issueless as hereinabove stated and on 5.6.1974, his wife Giniya Devi Modi formally adopted the defendant respondent and there is no dispute to that. The said adoption was carried out by way of registered adoption deed dated 5.6.1974 alongwith performance of religious ceremony. Adoption is valid under the Hindu Adoption and Maintenance Act, 1956. It is pleaded that after the adoption, the defendant respondent under the law divested his right to succeed to his property of natural parents. On 30.7.1974 a tripartite agreement was executed amongst the plaintiff appellant No. 1, defendant respondent and their mother Imarty Devi with the following conditions: (i) The Immovable properties falling in the share of defendant in the Jorhat town shall remain in the custody of Imarti Devi, who shall hold the same absolutely subject to retransfer to the Defendant, if his adoption is invalidated during the life time of Giniya Devi. (ii) On the death of Imarti, natural mother of both the plaintiff and defendant, and properties held by her for the defendant shall devolve on the plaintiff No. 1 to which defendant shall have no right whatsoever. (ii) On the death of Imarti, natural mother of both the plaintiff and defendant, and properties held by her for the defendant shall devolve on the plaintiff No. 1 to which defendant shall have no right whatsoever. (iii) All assets and liabilities of the business M/S Mangilal Bangshidhar of Jorhat shall vest on the plaintiff No. 1 and defendant shall not be liable in any manner. 4. Dispute started after the portion of the shop which fell in the share of defendant respondent before his adoption was leased out to a tenant on monthly rent and the said portion is described in schedule-C of the plaint. The rent was collected by the plaintiff appellant No. 1 or his mother who later on at the instigation of the defendant respondent and proforma defendant, started asserting her sole absolute right on the entire property mentioned in schedule-B. The plaintiffs appellants pleaded that the agreement dated 30.7.1974 still subsists as the same was never revoked by the parties and as such the defendant is estopped from claiming any right, title or possession mentioned in Schedule-B and Schedule-C land. The defendant respondent also mutated his name in the record of rights in respect of Schedule-B land. The plaintiff appellant challenged the said mutation which is pending. On 6.1.2006 the defendant respondent threatened to dispossess the plaintiffs appellants and challenged their ownership over the suit property. Accordingly the suit was filed for the relief hereinabove stated. 5. The defendant respondent filed his written statement denying each and every claim including execution of the purported tripartite written agreement dated 30.7.1994. It is his contention that plaintiffs appellants had no right, title and interest over his share which he possessed since the year, 1962. He sought for dismissal of the suit. On the basis of the pleadings the following issues were framed by the trial court: 1. Whether there is cause of action for the suit? 2. Whether the suit is bad for non-joinder of necessary party? 3. Whether the father of the plaintiff No. 1 and defendant was the absolute owner of a plot of land measuring 18 2/3 lechas out of 2 kathas 16 lechas of Jorhat town fully described in Schedule-B of the plaint? 4. 2. Whether the suit is bad for non-joinder of necessary party? 3. Whether the father of the plaintiff No. 1 and defendant was the absolute owner of a plot of land measuring 18 2/3 lechas out of 2 kathas 16 lechas of Jorhat town fully described in Schedule-B of the plaint? 4. Whether the plaintiff No. 1 and defendant entered into an agreement in the year 1972 after their father's death and mutually agreed to divide the shop premises in equal two parts without disturbing the residential structure? 5. Whether on 5.6.1974 mother of the defendant allowed Mrs. Giniya Devi to adopt defendant as his son by executing a registered deed and performing as well as observing all religious and social ceremonies? 6. Whether the adoption of defendant is valid under the provision IV of Section 10 of Hindu adoption and Maintenance Act? 7. Whether the defendant lost all his right including the right of inheritance from his natural born family after that adoption? 8. Whether on 30.7.1974 after adoption Plaintiff No. 1 defendant and their mother entered into tripartite agreement and was agreed to hold the share of defendant's natural born family by his mother subject to retain the power and right to transfer the same? 9. Whether the defendant was competent enough to execute the agreement dated 1.12.1972 and 30.7.1974? 10. Whether the Plaintiffs have absolute right, title and interest in the property mentioned in Schedule ‘B’ and ‘C’ mentioned in plaint? 11. Whether the plaintiffs are entitled to a decree of declaration to declare the all deeds or agreement or any other document executed between the defendant with his mother Lt. Imarti Devi and with proforma defendant where the plaintiff No. 1 was not a party included a party are invalid in the eye of law and liable to be cancelled? 12. Whether the plaintiff is entitled to a decree as prayed for? 13. What relief/reliefs the parties are entitled for? 6. During the trial the plaintiffs appellants examined three witnesses including the appellant No. 1 as PW 1, appellant No. 2 as PW 2 and another, one Shyam Lohia as the PW 3. The defendant respondent neither examined himself as witness nor cross-examined the plaintiffs' witnesses. 7. Amongst the issues, issue Nos. 7 and 8 are relevant. 6. During the trial the plaintiffs appellants examined three witnesses including the appellant No. 1 as PW 1, appellant No. 2 as PW 2 and another, one Shyam Lohia as the PW 3. The defendant respondent neither examined himself as witness nor cross-examined the plaintiffs' witnesses. 7. Amongst the issues, issue Nos. 7 and 8 are relevant. The learned trial court decided the issue No. 7 that the property once vested cannot be divested as there is no provision under the Hindu Adoptions and Maintenance Act, 1956 which bars the right of inheritance of a person from his natural born family before adoption. Accordingly the said issue was decided in the negative. Issue No. 8 was decided against the plaintiffs appellants. The plaintiff appellant No. 1 deposed that after adoption of the defendant respondent he renounced his relation with his natural parental lineage and his property rights and on the basis of tripartite written agreement on 30.7.1974 Ext. 3, it was agreed that the property of the defendant respondent shall remain in the custody of his mother subject to relinquishment of the property in case adoption becomes invalid during the life time of their mother. After the death of the mother share of the property shall vest on the plaintiff appellant No. 1 and defendant respondent shall have no claim. 8. Learned trial court took note of the facts pleaded in the written statement whereby the execution of Ext. 3 was denied by the defendant respondent following which the issue No. 8 was framed. The plaintiffs appellants failed to prove Ext. 3 inasmuch as no witnesses who were present at the time of execution of Ext. 3 were examined to prove the execution of Ext. 3. Accordingly the issue No. 8 was decided against the plaintiff appellant resulting dismissal of the suit. 9. The judgment and decree of the trial court was put under challenge in Title Appeal No. 17/2007 in the court of learned Civil Judge, Jorhat which was also dismissed vide judgment dated 22.2.2008. The learned first appellant court upheld the findings on issue Nos. 7, 8 and 9. But while deciding the issue No. 8 it came to the finding that the plaintiffs appellants failed to prove the Ext. 3 agreement itself inasmuch as on record, the said agreement is a photograph taken by a camera of the purported original deed dated 30.7.1974. The learned first appellant court upheld the findings on issue Nos. 7, 8 and 9. But while deciding the issue No. 8 it came to the finding that the plaintiffs appellants failed to prove the Ext. 3 agreement itself inasmuch as on record, the said agreement is a photograph taken by a camera of the purported original deed dated 30.7.1974. The plaintiff appellant claimed that the original of the said document was in the custody of defendant respondent but no steps were taken for calling the same and as such the court below did not accept the fact of execution of the said Ext. 3 by the defendant respondent. 10. The said judgment and decree dated 22.2.2008 passed by first appellate court in title appeal No. 17/2007 is under challenge in this second appeal which was admitted on 9.8.2010 on the following substantial questions of law: “1. Whether the learned courts below misinterpreted the provisions of Section 12 of the Hindu Adoption and Maintenance Act, 1956 in the light of the terms and conditions incorporated in the tripartite agreement dated 30.7.1974 (Exhibit 3) while dismissing the suit of the appellants? 2. Whether the decision of the learned courts below on Issue No. 8 as to the admissibility of secondary evidence is illegal in view of Order 11 Rule 14 of the Code of Civil Procedure read with Section 65 of the Evidence Act? 3. Whether the learned courts below committed illegality in not applying the provision of Order 9 Rule 6 of the Code of Civil Procedure when the respondent/defendant did not appear in the suit either to cross-examining the appellants'/plaintiffs' witnesses or to adduce any evidence on its own? 4. Whether the judgment and decree passed by the learned lower appellate court are vitiated on account of mechanical affirmation of the judgment of the trial court without considering the evidences of as many as three witnesses examined by the appellants/plaintiffs” 11. Mr. Sarma submits that the first appellate court came to a wrong finding that no steps were taken for calling documents rather it is on record that necessary steps were taken upon which the court directed the defendant respondent to produce the agreement who failed to comply with the said direction of the court and the trial court accepted Ext. Mr. Sarma submits that the first appellate court came to a wrong finding that no steps were taken for calling documents rather it is on record that necessary steps were taken upon which the court directed the defendant respondent to produce the agreement who failed to comply with the said direction of the court and the trial court accepted Ext. 3 on record as secondary evidence and as such there is no question of further proving the fact of execution of said Ext. 3 by defendant respondent and his mother. Referring Section 12(b) of Hindu Adoptions and Maintenance Act, 1956, Mr. Sarma further submits that the obligation as stipulated in the agreement i.e. Ext. 3 needs to be decided in favour of the plaintiff appellant No. 1 inasmuch as the said obligation was agreed by the defendant respondent prior to his adoption by the wife of Rameswar. The court below failed to appreciate the said fact that the right to enter into the said agreement by the defendant respondent accrued in the year, 1972 12. Mr. Mahanta, learned Senior counsel on the other hand submits that all the substantial questions are liable to be decided against the plaintiffs appellants inasmuch as if there is any obligation created and promised by the defendant respondent, the same is after adoption which took place on 5.6.1974. Section 12(b) of the Hindu Adoptions and Maintenance Act, 1956 refers to the obligation prior to the adoption only but not subsequent thereafter. 13. I have given due consideration to the submissions of learned counsel and in my considered opinion in order to answer the substantial questions of law, Ext. 1 the partition deed between the plaintiff appellant No. 1 and the defendant respondent, Ext. 2 registered adoption deed and the purported agreement dated 30.7.1974 Ext. 3 are sufficient to decide this second appeal. It is not disputed that on the basis of Ext. 1 the family settlement deed in the year 1972, shop premises on the ground floor of the building situated over the B-schedule land was divided into two equal shares between the plaintiff appellant No. 1 and defendant respondent. Subsequent thereto the adoption took place vide the deed executed in the month of June, 1974. 1 the family settlement deed in the year 1972, shop premises on the ground floor of the building situated over the B-schedule land was divided into two equal shares between the plaintiff appellant No. 1 and defendant respondent. Subsequent thereto the adoption took place vide the deed executed in the month of June, 1974. From the said two deeds it can be inferred that the share of the defendant respondent devolved in the year, 1972 which is prior to the undisputed adoption of the defendant respondent. On the other hand, even if Ext. 3 is considered to be the secondary piece of evidence the same cannot be accepted to be duly executed on the face of the denial in the written statement though as there was no evidence on the part of the defendant respondent pleadings in the written statement cannot be considered. The purported Ext. 3 was executed subsequent to the adoption of the defendant respondent. The proviso(b) of Section 12 of Hindu Adoptions and Maintenance Act, 1956 which stipulates that an adopted child shall be deemed to be the child of the adoptive parents for all purpose with effect from on the basis of the partition and settlement deed i.e. Ext. 1. the date of adoption and from such date all ties of the child in the family of his birth shall be deemed to severed and replaced by those created by the adoptive family. However the proviso-(b) of the said Section 12 stipulates any property which vested in the adopted child before the adoption shall continue to vest in such person subject to obligation if any attaching to the ownership of such property. 14. As discussed hereinabove the share of the defendant respondent was allotted prior to his adoption in the year, 1972 and if any obligations were attached to the ownership of the said share as claimed by the plaintiffs appellants the same was after adoption but not before the adoption was completed. But I am of the considered view that there is no bar in creating the obligation even after the adoption inasmuch as if the property is lawfully vested before the adoption, right to enjoy the vested property shall continue even after the adoption. But I am of the considered view that there is no bar in creating the obligation even after the adoption inasmuch as if the property is lawfully vested before the adoption, right to enjoy the vested property shall continue even after the adoption. Then the adopted person in such a situation is entitled to create an obligation annexed to the ownership of the property even after adoption as prescribed under the proviso (b) of Section 12 of the Hindu Adoptions and Maintenance Act, 1956 and there is no bar to it for creation of any obligation after adoption. Enjoyment of the vested property includes creation of obligation annexed to the ownership of the property vested on a person even after adoption. If the submission of Mr. Mahanta is accepted then it would go against the principle that a vested right on an immovable property is transferable. An agreement for sale or disposition of an immovable property is itself an obligation annexed to the title of the property. So invoking the jurisdiction under Section 103 CPC the issue No. 9 is decided in favour of the plaintiff appellant and the substantial question of law No. 1 is also decided in favour of plaintiffs appellants. To that effect the substantial question of law No. 1 has to be answered in favour of the appellant. 15. It is submitted by Mr. Sarma that the first appellate court wrongly held that no steps were taken to call for the original of Ext. 3 from the defendant but in fact there was a direction from the trial court to produce the original of the Ext. 3 and as such the court ought to have considered the Ext. 3 under Order 11 Rule 14 of the CPC. This submission I am not inclined to accept as the language in the said provision is that only on production of the document the court can deal with it but not otherwise. Mere non compliance of the direction to produce the original of Ext. 3 on the face of the stand taken in the written statement that the defendant never executed the Ext. 3 cannot be a condition to allow the plaintiffs appellants to take the benefit of secondary evidence until and unless the burden to prove that the said Ext. 3 was executed by the defendant respondent is discharged by plaintiffs appellants. The Ext. 3 cannot be a condition to allow the plaintiffs appellants to take the benefit of secondary evidence until and unless the burden to prove that the said Ext. 3 was executed by the defendant respondent is discharged by plaintiffs appellants. The Ext. 3, even if it is accepted as secondary piece of evidence but its execution must be proved by the plaintiffs appellants inasmuch as it is the case of plaintiffs appellants that on the basis of that agreement they are claiming their right, title and interest over the total schedule B land including the schedule C land. The said fact of execution of Ext. 3 is not at all proved by the plaintiffs appellants nor the contents thereof. The provision of Order 9 Rule 6 of the CPC will not come into play in the present factual circumstances inasmuch the defendant respondent entered appearance after due service of summons, filed his written statement, issues were framed but they failed to adduce any evidence. 16. Accordingly, I am constrained to answer all the substantial questions of law leaving aside question No. 1 against the plaintiffs appellants. But even if the said question is answered in favour of the plaintiffs appellants but the same cannot change the outcome of the suit as it is the obligation annexed to the ownership of the property after adoption is valid but creation of such obligation vide Ext. 3 is not proved by the defendant appellant. Accordingly the appeal stands dismissed. Send back the LCR. No cost.