Full Judgment
Mazhar Ali Shah, J.
1. The civil second appeal under Section 100 of the Civil P.C. is directed against the judgment and decree passed byDistrict Judge, Udhampur on Sept. 30, 1978 in Civil Appeal No. 44 of 1977 confirming the judgment 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 proeperty 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 whereof 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 res training the respondent 2 from addressing the appellants as their sisters was also rejected The appellants preferred the appeal beforethe learned District Judge, Udhampur against the said dismissal of the suit. The learned District Judge by his judgment and decree impugned in this second appeal maintained the decree of dimissal and dismissed the appeal.
3. The appellants being aggrieved against the judgment 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 property of the father is vested right, if the adopt ion 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 relieance on Article 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 judgment 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 anauthority of this court reported in 1985 Kash LJ 32 : (AIR 1986 I & K 24), (Mool Raj v. Atma Ram).
4. On persual of the record and hearing the rival arguments, I am of the opinion that the approach of the two courts below is. entirely against the provisions of law. Section 42 of the Specific Relief Act referred to by the learned District Judge will apply only if the conditions specified therein debar the appellants to bring the suit. In the instant, case the relief mainly claimed by the appellants is to the declaration that the deed of adoption is invalid as the ceremonies requisite for the purposes of adoption were not performed and hence they cannot be held bound by such an adoption. The status, which they are claiming is positively a right which vested in them by virtue of their being the daughters of respondent I, as, if the adoption is allowed to stand will mean an inclusion of a son a member in their family, thus by no stretch of imagination can be deemed to be a mere right of succession, but a right which is co-extensive with the right of their existence in the family. The approach of the two courts below to dispose of the suit merely on a preliminary point without going into the merits of the respective claims of the parties is neither in accordance with law nor in accordance with Section 42 of the Spcecific Relief Act. It is different matter altogether that in case no property is left by respondent 1 the appellants may not be held entitled to share any part in the property, but undoubtedly they cannot be compelled to treat the respondent 2 as their brother, unless the adoption is held valid to which the challenge is made by them in the instant suit. When such is the position the very spirit of Section 42 of the Specific Releif Act will come to their rescue instead of barring such a suit. The authority relied on by the learned counsel for the respondents 1985 Kash LJ 32 : (AIR 1986 J & K 24) (supra) is of no help to him. It rather supports the contentions of the learned counsel for the appellants, wherein his Lordships of this Court has held in para 6 of the above judgment to the following effect :--
'Negative declarations are not always barred. Such a declaration can be granted ifthe plaintiff shows that his civil rights are likely to be affected by his adversary's status without showing that no declaration can be granted under Section 42 of the Specific ReliefAct.'
In the instant case even if it is assumed that the civil rights of the appellants to property are not affected at present by the adoption but they are likely to be affected in future and will definitely affect their person, to clear those clouds, they have got every right to challenge the adoption, I find force in the arguments advanced by the learned counsel for the appellants that in case they are not permitted to challenge the adoption at this stage their suit will be barred after the period of limitation expires under Article 117 of the Limitation Act.
5. On the totality of the circumstances enumerated above, I find that the approach of the two courts below in dismissing the suit of the appellants/plaintiffs without trying the other issues pertaining to adoption, which are crucial issues framed in the instant suit by the trial court is not in accordance with law and thus the dismissal of the suit is vitiated by error of law and procedure, which is open to interference under Section 100 of the Code of Civil Procedure.
6. Consequently for the reasons stated hereinabove, the second appeal succeeds, the judgment and decree passed by the learned trial court dismissing the suit of the appellants/plaintiffs and confirmed by the first appellate court is hereby set aside with costs. The appellants shall be entitled to their cost and (sic) shall pay the cost of the appellants. Counsel fee according, to the Schedule. In consequence of the success of the appeal, the case is remanded back to the trial court for disposal according to law. Parties through their counsel are directed to appear before the trial court on 15th of Dec. 1986. The record be sent back. Decree be drawn up accordingly.