Madhya Pradesh High Court
Rajkumar Singh vs Dr.Shanti Raghuvanshi on 20 June, 2014
W.P.2994/14 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No.2994/2014
Raj Kumar Singh
versus
Dr. Shanti Raghuvanshi and others
-----------------------------------------------------------------------------------------------
Shri N.K.Gupta, Advocate for the petitioner.
Shri D.K.Agarwal, Advocate for the respondents No.1 and 6.
-----------------------------------------------------------------------------------------------
ORDER
(20/06/2014) This petition filed under Article 227 of the Constitution, challenges the order dated 6.5.2014 passed in Civil Suit No. 16A/2001 by Additional District Judge, Guna.
2. The petitioner/plaintiff No.2 along with four other plaintiffs filed a suit for declaration and permanent injunction, which was registered as Civil No.16A/2001. During pendency of the suit, the petitioner preferred an application under Section 151 CPC, Annexure P/5. It is urged in this application that the defendant No.3 Kesarbai expired on 11.1.2002 and plaintiff No.2 is her legal representative. Because of death of defendant No.3, her name be deleted from the array of defendants and since plaintiff No.2, a legal representative is already on record, necessary orders be passed. This application is opposed by the defendants by filing reply on 3.2.2002 (Annexure P/6). The court below without deciding this application passed the judgment and decree on 6.2.2003. This judgment is called in question before this Court in First Appeal No. 96/2003. This Court set aside the judgment and decree with certain directions and directed the court below to redecide the suit in accordance with law. In turn, the court below decided the said application filed u/S. 151 CPC (Annexure P/5) by impugned order dated 6.5.2014. The court below opined that the petitioner is not legal representative of Kesarbai.
3. Criticizing this order, Shri N.K.Gupta, learned counsel for the petitioner, submits that the findings of court below are not based on evidence. By drawing attention of this Court on Order 22 Rule 5, CPC, and the findings of this Court in First Appeal No. 96/2003, Shri Gupta submits that the court below has not decided as to who is the legal W.P.2994/14 2 representative of deceased/defendant No.3. The court below has erred in only deciding with regard to the present petitioner and did not decide as to who is the legal representative of said deceased. In support of his contention, he relied on (2008) 8 SCC 521 (Jaladi Suguna (deceased) through Lrs. vs. Satya Sai Central Trust and others).
4. Per Contra, Shri D.K.Agarwal, learned counsel for the respondents No.1 and 6, supported the order. By drawing attention of this Court on the pleadings before the trial court and deposition of petitioner, it is contended that there is no perversity in the order impugned. The order is in consonance with the judgments of Supreme Court. He further submits that there is no procedural flaw in the order. In absence of any such procedural flaw, jurisdictional error or perversity, no interference is warranted in a petition filed under Article 227 of the Constitution. He submits that this Court is not required to act as 'a bull in the china shop'.
5. I have heard learned counsel for the parties and perused the record.
6. This Court in First Appeal No. 96/2003 gave following findings :-
"15. ...........However, on going through the record, we find that an application under Section 151 CPC was filed by the plaintiffs on 7/2/2002 to delete her name because her LR defendant No. 2 Raj Kumar was already on record. This application was opposed by the appellants by filing a reply on 13/2/2002 and in the reply it has been denied that plaintiff No. 2 Raj Kumar S/o Late Mohan Singh is the sole LR of late Keshar Bai. According to defendants, he is not at all the LR but the LR of deceased/defendant No. 3 is the first defendant Smt. Shanti Raghuvanshi W/o Late Shri Narendra Singh Raghuvanshi. Hence, according to us, in view of the opposition of the application about the disputed questions of fact that who is the LR of the deceased/defendant No. 3, an enquiry should have been made by learned trial Court under Order XXII Rule 5 of CPC, but the learned trial Court totally deviated from the said procedure.
16. Hence, we are of the view that the impugned judgment in the manner and fashion it has been passed, cannot be allowed to remain stand and same is hereby set aside and the case is send back to learned trial Court to re-decide the suit in accordance with the law."
The underlined portion makes it crystal clear that this Court directed the trial court to conduct an enquiry under Order 22 Rule 5 CPC in order to decide as to who is the legal representative of W.P.2994/14 3 deceased/defendant No.3. The suit was directed to be decided in accordance with law.
7. In turn, the court below passed the order dated 6.5.2014. The court below in para 1 of the order recorded that the High Court has remanded the matter to decide the question of legal representative of Kesarbai. However, a microscopic reading of the impugned order shows that the court below has devoted the entire energy in deciding whether the petitioner is legal representative of deceased. Two questions emerge for consideration of this Court in view of the arguments advanced:-
(i) Whether the finding of court below that petitioner is not legal representative of Kesarbai is legal and justified ?
(ii) Whether the court below has erred in not determining the question of legal representative of Kesarbai ?
Question No. (i) :
8. Section 8 of Hindu Adoption and Maintenance Act, 1956 (for brevity, the 'Act') deals with capacity of a female Hindu to take in adoption. The relevant portion reads as under:-
"8. Capacity of a female Hindu to take in adoption.-- Any female Hindu--
(a) who is of sound mind,
(b) who is not minor, and
(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has capacity to take a son or daughter in adoption."
9. The Apex Court in (2008) 13 SCC 161 (Brajendra Singh vs. State of Madhya Pradesh and another), considered Section 8 of the Act and opined as under:-
"15. We are concerned in the present case with clause (c) of Section 8. The section brings about a very important and far-reaching change in the law of adoption as used to apply earlier in case of Hindus. It is now permissible for a female Hindu who is of sound mind and has completed the age of 18 years to take a son or daughter in adoption to herself in her own right provided that (a) she is not married; (b) or is a widow; (c) or is divorcee or after marriage her husband has finally renounced the world or is ceased to be a Hindu or has been declared to be of unsound mind by a court having jurisdiction to pass a declaratory decree to that effect. It W.P.2994/14 4 follows from clause (c) of Section 8 that Hindu wife cannot adopt a son or daughter to herself even with the consent of her husband because the section expressly provides for cases in which she can adopt a son or daughter to herself during the lifetime of the husband. She can only make an adoption in the cases indicated in clause (c).
16. It is important to note that Section 6(i) of the Act requires that the person who wants to adopt a son or a daughter must have the capacity and also the right to take in adoption. Section 8 speaks of what is described as "capacity". Section 11 which lays down the condition for a valid adoption required that in case of adoption of a son, the mother by whom the adoption is made must not have a Hindu son or son's son or grandson by legitimate blood relationship or by adoption living at the time of adoption. It follows from the language of Section 8 read with clauses (i) and (ii) of Section 11 that the female Hindu has the capacity and right to have both adopted son and adopted daughter provided there is compliance with the requirements and conditions of such adoption laid down in the Act. Any adoption made by a female Hindu who does not have requisite capacity to take in adoption or the right to take in adoption is null and void."
10. The court below has considered this judgment and opined that none of the conditions of Section 8 are satisfied by Kesarbai and, therefore, by no stretch of imagination it can be held that adoption of petitioner by Kesarbai is legally permissible. In addition, the trial court has taken pains in analysing and marshalling the evidence. In its detailed order, the trial court opined that the petitioner cannot be treated as legal representative of Kesarbai. It is apt to quote the relevant portion of deposition of petitioner before the court below as under:-
"8- -----------o"kZ 2000 esa eSus LosfPNd lsok fuo`fRr yh FkhA esjs ikl esjh igpku ds fy, isudkMZ] vk/kkj dkMZ] jk'ku dkMZ ,oa oksVj dkMZ Hkh vkSj esjs ikl jksMost dk vkbZMsUVh dkMZ Hkh gSA esjs ikl vkt esjh 'kS{kf.kd ;ksX;rk ds laca/k es dksbZ Hkh ekdZ'khV miyC/k ugha gS] Lo;a dgk fd ,d fnu eSus xqLls esa lHkh ekxZ'khV u"V dj nhA esjk jk'ku dkMZ lk<kSjk dk ugha gS xquk dk gSA eSus jk'ku dkMZ esjs uke ls 1985 ;k 1986 esa cuok;k FkkA igys ;g jk'ku dkMZ esjs rkmth Lo0 Jh j?kqukFk flag ds uke Fkk fdUrq mudh e`R;q mijkar eSus vius Lo;a ds uke ls jk'kudkMZ cuok;k FkkA 9- ;g ckr lR; gS fd esjh 'kS{kf.kd ;ksX;rk ds ftrus Hkh nLrkost Fks muesa esjs firkth dk uke eksgu flag j?kqoa'kh fy[kk gqvk FkkA eSus o"kZ 1960 esa f'k'kq eafnj tks fd izksQslj dkWyksuh Hkksiky esa fLFkr gS mlesa nkf[kyk ysdj viuh f'k{kk dh "kq:vkr dh FkhA ;g ckr lR; gS fd tUe ls gh lHkh nLrkostks esa esjs firkth dk uke eksgu flag j?kqoa'kh py jgk gSA esjs igpku ds tks Hkh nLrkost tSls dh isudkMZ] vk/kkjdkMZ] jk'kudkMZ] oksVjdkMZ W.P.2994/14 5 jksMost dk igpku dkMZ mu lHkh nLrkostksa esa Hkh esjs firkth dk uke eksguflag j?kqoa'kh vafdr gSA 10- esjs ikl [ksrh dh tehu gSA esjs ikl dqy 18 ch?kk tehu gSA esjh [ksrh dh tehu lk<kSjk esa fLFkr gSA ;g [ksrh dh tehu igys gekjs firkth Jh eksguflag j?kqoa'kh ds uke ls Fkh mUgksus bl tehu dk cVokjk rhuksa HkkbZ;ksa Jh jktssUnz flag] Jh jktdqekj flag ,oa Jh jkts'k flag ds e/; dj fn;k FkkA mDr tehu ds laca/k esa rhuks Hkkb;ksa dh vyx&vyx Hkwvf/kdkj ,oa _.k iqfLrdk cuh gqbZ gSA esjh Hkw&vf/kdkj o _.k iqfLrdk esa esjs firkth dk uke Jh eksgu flag j?kqoa'kh vafdr gSA "
11. On the basis of Section 8 of the Act and petitioner's own deposition, the court below opined that the petitioner is not the legal representative of Kesarbai. There is no perversity in the finding of the court below and it is in consonance with the evidence produced and legal position holding the field. Thus, I find no flaw in the order impugned in this regard.
Question No. (ii) :
12. A bare perusal of the underlined portion of the order passed by this Court in First Appeal No.96/2003 makes it crystal clear that the court below was directed to decide as to who is the legal representative of the deceased/defendant No.3. The court below has conducted a partial and limited enquiry only to the extent of deciding whether petitioner is legal representative of Kesarbai and did not decide the question as to who is the legal representative of deceased/defendant No.3. In view of the categorical order of this Court in first appeal aforesaid, the court below was obliged to undertake the aforesaid exercise and give categorical finding in this regard. Thus, I find force in the argument of Shri N.K.Gupta that the court below has erred in not deciding the aforesaid question. To this extent, in my opinion, the order is vulnerable. The order to this extent is set aside. The finding that the petitioner is not legal representative of Kesarbai is upheld. The court below is directed to decide as to who is the legal representative of Kesarbai before proceeding further in the civil suit.
13. Petition is partly allowed to the extent indicated above. No costs.
(Sujoy Paul)
yog/ Judge