JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. S.K. Sharma, learned counsel for the appellants and Mr. B.V. Kumar, learned counsel for the respondent No. 1. 2. This appeal has been filed challenging the validity and legality of the judgment dated 22.07.2016 passed by the learned Principal District Judge, Gumla in Succession Case No. 03/2014 whereby succession petition was partly allowed and directed to issue succession certificate of 1/3rd amount in favour of the respondent no. 1. 3. The case of the petitioner/respondent no. 1 is that petition under section 372 of the Indian Succession Act, 1925 has been filed praying there to grant Succession certificate. The case of the petitioner in short is that the petitioner is the adopted son of Late Manindra Kumar Pathak and live with adoptive parents till their death. Further, Raghunandan Pathak grand father of the petitioner had five sons namely Vishwanath Pathak, Kishori Mohan Pathak, Manindar Kumar Pathak, Binod Kumar Pathak and Manoj Kumar Pathak. Further, Manindra Kumar Pathak was posted in N.T.PC at Bongai Gaon of Assam State and he had no issue. In April 1995, during the marriage ceremony of their nephew Anirudh Kumar Pathak, Manindra Kumar Pathak and his wife came and doctor have opined that there is no chance of giving birth of any child, thereafter Manindra Kumar Pathak and his wife requested Manoj Kumar Pathak, whose wife was pregnant, at the that time, to give the child, who is in the womb of his wife, in adoption and with the consent of the family members, Manoj Kumar Pathak and his wife Smt. Manorama Pathak agreed with the decision of the family and ready to give her child, who is in her womb to give them in adoption. Further, after marriage, which was held on 11.5.1995, Manindra Kumar Pathak left for his serive place in Assam leaving his wife Subhadra Pathak at Chainpur and when on 7.7.1995, in the night Manorama Pathak wife of Manoj Kumar Pathak gave birth of a male child (petitioner), then the same child was handed over in the lap of Subhadra Pathak. Further, after marriage, which was held on 11.5.1995, Manindra Kumar Pathak left for his serive place in Assam leaving his wife Subhadra Pathak at Chainpur and when on 7.7.1995, in the night Manorama Pathak wife of Manoj Kumar Pathak gave birth of a male child (petitioner), then the same child was handed over in the lap of Subhadra Pathak. Further, during Dushhara festival, Manindra Kumar Pathak came at Chainpur from Assam and a function was held on 8.10.1995 and Manoj Kumar Pathak and his wife Manorama Pathak gave the child in the lap of Subhadra Pathak and Manindra Kumar Pathak and the family members including villagers participated in the function and after adoption the petitioner reside with their adoptive mother and father. Further, thereafter Manindra Kumar Pathak was transferred to Ramchandarpur Sub Station at Gamharia Block (Jamshedpur), where he died in 2004 and his body was brought to Gumla. Thereafter the wife of Manindra Kumar Pathak Subhadra Pathak started to live at Shanti Nagar Gumla in the house built by her husband with the petitioner, where she died in the year 2009. The last rites of the adoptive father and mother have been performed by this petitioner in the Muktidham, Gumla and the register maintained in the Muktidham shows that petitioner has put fire in the mouth of his adoptive parents. Further, on 13.2.96, Manindra Kumar Pathak applied for a child money back policy in his name with the petitioner and the petitioner has received the first installment after attaining the majority. Further, Manindra Kumar Pathak also fixed Rs. 10,000/- in the name of petitioner in the S.B.I Branch which was paid to the petitioner on 16.7.2014. Further, Subhadra Pathak had opened S.B Account, in UCO Bank Branch Gumla, in which petitioner was nominee and after attending majority, the fixed amount of S.B account has been transferred to the account of petitioner. Further, after the death of Manindra Kumar Pathak his wife and petitioner got E.P.F pension vide P.P.O No. JH/RAN/36513 and after death of adoptive mother, the petitioner is receiving E.P.F in his S.B. Account No. 49131211000002 in B.O.I Branch at Gumla till 23.3.2009 and Rs. 93,167/- is lying in her account, which the petitioner is entitled to receive. Further, after the death of Manindra Kumar Pathak his wife and petitioner got E.P.F pension vide P.P.O No. JH/RAN/36513 and after death of adoptive mother, the petitioner is receiving E.P.F in his S.B. Account No. 49131211000002 in B.O.I Branch at Gumla till 23.3.2009 and Rs. 93,167/- is lying in her account, which the petitioner is entitled to receive. Further, in all the educational Certificate of the petitioner, the name of Manindra Kumar Pathak and Subhadra Pathak are shown as father and mother of the petitioner and in the Service Book of Manindra Kumar Pathak, the name of petitioner is mentioned and in the medical Card also the name of the petitioner is mentioned and on the ground that he is the adopted son of Late Manindra Kumar Pathak and Late Subhadra Pathak, petitioner is entitled to get the amount, which has been deposited in the bank shown in schedule given below and for that the petitioner prays for issuance of Succession certificate. 4. By filing the joint written statement O.P. No. 1 and 2 claimed that Manindra Kumar Pathak during his life time has not adopted any child nor he adopted the petitioner and it is incorrect to say an adoption ceremony was held in village Chainpur, in which Manindra Kumar Pathak and his wife adopted the petitioner, rather the natural born father of the petitioner intentionally got a date of birth certificate issued on 6.12.95, in which the name of Subhadra Pathak is shown as a mother of the petitioner. It is further stated that in the year 1984, when Manindra Kumar Pathak was posted in Torpa District Ranchi then he took away Amresh Kumar Pathak S/O OP No 1 with him and got him admitted in Torpa school in Class IV and he used to reside with Manindra Kumar Pathak till he has been transferred from that place and the story when the petitioner was aged about 6 months Manindra Kumar Pathak took him to Assam is false. It was further stated that after the death of Manindra Kumar Pathak his wife Subhadra Pathak was looked after by all the family members, It was further stated that averment made in Para 5 of the Succession petition does not corroborate the adoption because since the Manindra Kumar Pathak has no issue, therefore, he used to help his nephew and also provide him financial help. Further, in the life insurance Policy, which was opened in Bongai Gaon in that LIC policy, the name of Manoj Kumar Pathak, as uncle was shown as proposer, and the premium amount was also paid by Manoj Kumar Pathak himself. Further, if at all Subhadra Pathak adopted the petitioner then she should have nominated the petitioner in all her Bank account, she has nominated the petitioner in some of the account and left the amount lying in other account for the benefit of the all opposite parties. Further, account of Subhadra Pathak which was in the UCO Bank in that petitioner was nominated by Subhadra Pathak and after the death of Subhadra Pathak a claim form has been submitted in which Manoj Kumar Pathak was shown as a witness which also creates doubt. Further, since the natural father of the petitioner, in the birth certificate, managed to mention the name of Subhadra Pathak as a mother of the petitioner that is why in the school register, name of Subhadra Pathak has been shown otherwise no step was taken for adopting the petitioner, as a son by Manindra Kumar Pathak or by Subhadra Pathak. Further, since at the time of death of Manindra Kumar Pathak and Subhadra Pathak all the brothers of O.P. were in service and the petitioner was the student in Gumla School, therefore, with the consent of all the family members, the petitioner was permitted to perform the last rites but the Sradh Karm was performed with the help of all the opposite parties, therefore, it is not proper to appoint the petitioner as a successor rather all are equally entitled to get the amount. 5. The O.P. Nos. 1, 2 and 3 appeared and filed the written statement and O.P. No. 4 and 5 did not appear then vide order dated 23.04.2015 the case against these O.P. Nos. 4 and 5 was fixed for ex-parte hearing. 6. By judgment dated 22.07.2016 in Succession Case No. 03/2014 learned court has been pleased to exercise its power under section 373 of the Indian Succession Act and considering the point of adoption held that it is required to be decided by competent court and further directed that unless and until point of the adoption has to be decided, he has granted succession certificate 1/3rd of the amount in favour of the petitioner/respondent no. 1 mentioned in schedule and certificate regarding the 2/3rd amount shall only be given if it is decided by the court of competent jurisdiction that the petitioner is adopted child of Manindra Kumar Pathak and Subhadra Pathak. 7. Mr. S.K. Sharma, learned counsel for the appellants submits that learned court has elaborately discussed the evidences adduced on behalf of the parties and has come to the conclusion that adoption of the respondent no. 1 has not been proved inspite of that he has granted certificate for 1/3rd of the amount mentioned in Schedule which is not in accordance with law. He submits that once finding of adoption is doubtful and in that case, issue has been to be left to be decided by another proceeding succession certificate was not required to be issued at this stage. He further submits that on the point of adoption considering the Hindu Adoption and Maintenance Act, 1956 particularly section 11, the Hon’ble Supreme Court in the case of Nilima Mukherjee vs. Kanta Bhusan Ghosh, (2001) 6 SCC 660 has held as under: “7. Some documents were produced to prove the fact of adoption. Documents were produced to show that a bank account was in the joint name of late Ramesh Chand Ganguly and the appellant. Late Ramesh Chand Ganguly used to draw freedom-fighter’s pension and a document was produced to show that in the nomination papers, the appellant was described as his daughter. These documents were duly considered by both the courts below and rejected by giving cogent reasons. Regarding nominating the appellant to draw pension on behalf of late Ramesh Chand Ganguly, the first appellate court has also noted that in the said paper there was no seal of the authority concerned. Mere having a joint bank account would not prove adoption in the absence of any other cogent evidence. 8. From a perusal of the judgments of both the courts and the evidence recorded we find that the appellant has miserably failed to prove that she was actually given in adoption by her father and taken in adoption by the late Ramesh Chand Ganguly. Accordingly, we hold that both the courts below have rightly rejected the plea of adoption set up by the appellant.” 8. On these grounds he submits that order dated 22.07.2016 is fit to be set aside. 9. On the other hand, Mr. Accordingly, we hold that both the courts below have rightly rejected the plea of adoption set up by the appellant.” 8. On these grounds he submits that order dated 22.07.2016 is fit to be set aside. 9. On the other hand, Mr. B.V. Kumar, learned counsel for the respondent no. 1 submits that learned court has exercised power under sub-section 3 of Section 373 of the Indian Succession Act. He submits that sub-section 3 is fixed piece of legislation and court prima facie came to the conclusion that certificate can be issued that is why the learned court considered the document on record and found that prima facie case is better of the respondent no. 1 and granted certificate. He further submits that it is well settled that case decided in summary proceeding is not binding to decide regular suit and res judicata does not operate. To buttress he argument, he relied in the case of Madhvi Amma Bhawani Amma and Others vs. Kunjikutty Pillai Meenakshi Pillai and Others, 2000 (6) SCC 301 wherein Para 12 the Hon’ble Supreme Court has held as under: “12. Under sub-section (1) of Section 373 if the court is satisfied that there is ground for entertaining the application, he fixes a date of hearing after notice. Sub-section (2) decides the right of the applicant, whether entitled for a grant of the certificate. Under sub-section (3), if such Judge cannot decide such right, as the question raised both on facts or law are intricate and difficult then in summary proceedings it can still grant such certificate, if it appears to the court, that the person making such application has a prima facie title thereto. Sub-section (3) of Section 373 is quoted hereunder: “373. (3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.” 10. He further submits that if there is any doubt amount can be disbursed on certain surety. He relied in the case of Joginath Gochhi and Another vs. Sudhkar Pati and Others, AIR 1999 Orissa 182. He further submits that if there is any doubt amount can be disbursed on certain surety. He relied in the case of Joginath Gochhi and Another vs. Sudhkar Pati and Others, AIR 1999 Orissa 182. On these grounds he submits that there is no illegality in the judgment of the learned court and the impugned judgment is good one and no interference of this Court is required. 11. In view of above submission of the learned counsel for the parties the Court has gone through the judgment of the learned court and finds that learned court has considered the exhibits as well as oral evidence adduced on behalf of the P.Ws. and O.Ps., learned court has considered the evidence of Manorma Pahtak who is natural mother of respondent no. 1 who gave the petitioner/respondent in adoption however in cross examination she has admitted in para 2 that no paper regarding the adoption was prepared and considering the evidence of P.W.2 and Exhibit 9 learned court has come to the conclusion that the case of the respondent no. 1 that Manindara was not present at the time of birth of the petitioner/respondent no. 1 rather he came from Chainpur on the occasion of Dushara in the year 1995 and thereafter adoption ceremony was held on 08.10.1995 thereafter admittedly, birth registration was not made by Manindra Kumar Pathak and the person who issued birth registration certificate admits that it was Manoj Kumar Pathak who came with an application and got the registration of birth of his child and to entered the name of Subhadra Devi as a mother of newly born child Rajesh Nandan Pahtak. Looking into these certificate that is Exhibit 9 it cannot be said the person name as of mother child if the adoptive mother of the child and considering all these aspect of the matter learned court restrained to comment on genuineness of the exhibit 9 which creates doubt about this genuineness and thereafter has come to the clear cut finding that the adoption has not been proved. 12. The entire succession case was based on the said adoption and once that itself has been doubted by the court even partially relying on certificate exhibits where the name of respondent no. 12. The entire succession case was based on the said adoption and once that itself has been doubted by the court even partially relying on certificate exhibits where the name of respondent no. 1 has been shown as nominee even on the strength of subsection 3 of section 373 of the Indian Succession Act, part allowing the certificate is not in accordance with law. There is no doubt that in the light of subsection 3 of section 373 of the Indian Succession Act he can issue the same even if having prima facie the best title thereto however at the same time learned court is required to do so and in absence of without determination of questions of law or facts seems to be too intricate and difficult for determination in a summary proceeding. In the case in hand the adoption itself was under cloud and learned court on appreciating the evidences elaborately has held that adoption has not been proved and that issue has been kept open to be decided in the competent court of jurisdiction. The court was not required to issue the certificate partly which has been done in the case in hand. The judgment relied by Mr. B.V. Kumar in the case of “Madhvi Amma” (supra) is on the different footing as the case in hand the appellants herein are brother of the deceased namely, Manindra Pathak in the succession certificate itself they have raised the question of adoption and the said contention raised in the succession certificate itself and court came to that finding that adoption was not proved, the court was required to restrain and pass the order of the certification of adoption. The judgment relied by Mr. B.V. Kumar, in the case of Joginath Gochhi (supra) it was the competent authority who has granted the succession certificate in favour of one of the parties finding the correct thus it was original court who passed that order in view of the fact that original court has passed judgment is not helping the respondent no. 1. 13. In view of above facts, the court comes to the conclusion that even on the strength of subsection 3 of section 373 of the Indian Succession Act, the clear cut finding has been provided by the learned court on the point of adoption. 1. 13. In view of above facts, the court comes to the conclusion that even on the strength of subsection 3 of section 373 of the Indian Succession Act, the clear cut finding has been provided by the learned court on the point of adoption. The certificate in part was not required to be allowed to be issued and holding that adoption will be only decided by the competent court of jurisdiction. Pursuant to suit for declaration of adoption has been filed by the respondent no. 1. In that view of the matter the impugned judgment cannot be sustained in the eye of law and accordingly, impugned judgment dated 22.07.2016 passed in Succession Case No. 03/2014 is set aside. 14. It is open to the respondent no. 1 to obtain certificate on the basis of suit which has been filed by declaring adoption as valid. 15. It is made clear that this order will not prejudice the right of the parties in the pending suit for declaration of adoption as made valid which will be decided on its own merit. 16. This appeal is allowed and disposed of. Pending, I.A. if any, stands disposed of. 17. Let L.C.R. be sent to the concerned court forthwith.