HIGH COURT OF JAMMU AND KASHMIR
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(1.) The civil second appeal under S.100 of the Civil P.C. is directed against the Judgement and decree passed by District Judge, Udhampur on Sept. 30, 1978 in Civil Appeal No. 44 of 1977 confirming the judgement and decree passed by Sub Judge, Udhampur in Civil Suit No. 12 of 1974 on Dec. 30, 1976.
(2.) Briefly stated the second appeal arises out of the suit filed by the present appellants against their father and Parveen Singh, the adopted son of respondent 1 for declaration that respondent 2 Parveen Singh is not a validly adopted son of their father. It is stated in the plaint that the adoption of respondent 2 by respondent 1 will adversely affected the rights of the appellants, who are entitled to share the property after the death of their father and that the adoption deed dt/- 8-1-1974 executed and registered was not a valid piece of document as no handing over or taking over took place. On notice to the respondents, they in their written statements challenged the maintainability of the suit and contended that the adoption is validly made performing all he necessary religious ceremonies, however, objections to the maintainability of suit was raised in the written statements. In consequence where of learned trial court proceeded to ask the parties to choose whether they want to adduce any evidence on the preliminary point of maintainability of the suit by his order dt/-16-11-1976 and framed a formal issue to the following effect :- "Whether the suit is not maintainable ? O. P. D." Both the parties agreed not to adduce any evidence on the said issue. The learned trial court after hearing the respective parties on the basis of pleadings came to the conclusion that on the face of it, the appellants will succeed to their father after his death and their claim at that stage being a mere chance of succession cannot form the basis of declaration at this stage, hence held the suit as not maintainable deciding the issue in favour of the respondents and against the present appellants. An application for permission to amend the plaint for adding the alternative relief of injunction restraining the respondent 2 from addressing the appellants as their sisters was also rejected The appellants preferred the appeal before the learned District Judge, Udhampur against the said dismissal of the suit. The learned District Judge by his judgement and decree impugned in this second appeal maintained the decree of dismissal and dismissed the appeal.
(3.) The appellants being aggrieved against the judgement and decree passed by the learned trial court and confirmed by the learned District Judge have preferred this second appeal. Learned counsel for the appellants strenuously submitted that the approach of the courts below is not in accordance with law. The right of the appellants to challenge the adoption under the law of limitation will be barred by limitation, in case they are not permitted to continue the suit at this stage, secondly the share inheritance of the properly of the father is vested right, if the adoption is allowed to continue the right of the appellants will be prejudiced by reduction of their share in the property. Learned counsel for the appellants in support of his contention placed reliance on Art.117 of the Limitation Act and on two authorities reported-in AIR 1945 Mad 33, (Krishna Ayyar v. Gomathi Ammal) and AIR 1943 Pat 68, (Kasi Palei v. Radhika Dei), for the proposition that under the above Article of Limitation Act, a period of six years in provided to obtain a declaration that an alleged adoption is invalid or in fact never took place from the date when the alleged adoption becomes known to the plaintiffs. Thus it is submitted that both the courts below by holding the suit as not maintainable have ignored this proposition of law, which in future after the death of respondent 1 will debar the appellants to challenge the adoption of respondent 2. Learned counsel for the respondents in reply supporting the judgement of the two courts below reiterated that when the right of the appellants in the property is a mere chance of succession on that basis no relief at present can be granted to the appellants so long as their father is alive, who is the absolute owner of the property. Similarly a suit simpliciter for declaration without showing as to in what manner the status of the other side has affected the civil right of the plaintiffs is not maintainable. In support of his contention, reliance is placed by the learned counsel for the respondents on an authority of this court reported in 1985 Kash LJ 32 Mool Raj v. Atma Ram.;
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