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Judgment
P.C. Phukan, J.—This appeal is directed against the common order dated 11.6.87 passed by the learned Additional District Judge III, Manipur dismissing the Judicial Misc. Case No. 248-86/20-87 instituted by the Appellants-Plaintiffs by refusing to make absolute the order granting ex-parte interim injunction and allowing the judicial Misc. Case No. 262-86/10-87 instituted by the Respondents-Defendants vacating the order granting ex-parte interim injunction.
We have heard at length Mr. A. Nilamani, learned senior Counsel for the Appellants-Plaintiffs as well as Mr. L. Nandakumar Singh, learned senior Counsel for the Respondents-Defendants. We have also considered the records.
Admittedly, the parties belong to Khandelwal Saraogi sect of Digambar Jain Community. The suit property belonged to one Deepchand Patni. He died unmarried on 18.5.86 leaving the Plaintiffs, who are his step brOrs. s, and the Defendant No. 1 who is his step sister. The Defendant No. 2 claim to be the adopted son of the deceased Deepchand and claim the suit property to the exclusion of the Plaintiffs and the Defendant No. 1. The Plaintiffs and the Defendant No. 1 assert that the alleged adoption was void in view of provisions in Section 19(iv) of the Hindu Adoption & Maintenance Act, 1956 as the Defendant No. 2 was then above 15 years of age and there is no custom or usage applicable to the parties permitting adoption of persons above 15 years of age. They further allege that there was no ceremony of giving and taking, and the alleged adoption deed dated 23.10.85 is a forged document. They, therefore, instituted original suit No. 75-86/26-87 for declaration of their title over the suit property as nearest natural heirs of the deceased, for declaration that the alleged adoption deed is void and also for permanent injunction against the Defendant No. 2. The Plaintiffs and the Defendant No. 1 also instituted Judicial Misc. Case No. 248-86/20-87 for ad-interim temporary injunction. The learned Additional District Judge at Imphal granted ex-parte interim injunction. The Defendant No. 2 then instituted Judicial Misc. Case No. 262-86/10-87 for vacating the same. After hearing learned Counsel for the parties, learned Additional District Judge disposed of both the Judicial Misc. Cases by vacating the exparte interim injunction vide the common order dated 11.6.87 impugned in this appeal.
Mr. Nilomoni, learned senior Counsel for the Appellants-Plaintiffs, contends that since the Defendant No. 2 was admittedly above 15 years of age at the relevant time, he could not have been legally adopted in view of the provisions in Section 10(iv) of the Hindu Adoption & Maintenance Act, 1956 (hereinafter called the Act). The relevant portion thereof reads:
No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:
(i) *** *** *** (ii) *** *** *** (iii) *** *** *** (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
Mr. Nilomoni, learned senior Counsel for the Appellants-Plaintiffs strenuously argues that none of the case laws cited on behalf of the Respondent-Defendant No. 2 with regard to the permissible age of adoption under the custom and usage mentioned therein is applicable to the parties of the instant case belonging to Khandelwal Saraogi sect of Digambar Jain community, and hence learned trial court erred in law and facts by placing reliance on this case laws to hold that the alleged adoption of the Respondent-Defendant No. 2 was not in contravention of Section 10(iv) of the Act, we have, however, found that in Manoharlal v. Banarani Das 29 ILR (All) 495 cited on behalf of the Respondent-Defendant No. 2, the parties were Saraogi Agarwals; Mul Chand at the time of his alleged adoption was a married man aged about 25 years.
The court held:
After a careful consideration of the case we have come to the conclusion that the evidence satisfactorily shows that the Jains in these parts do not regard marriage as a bar to the eligibility of a youth for adoption; that married as well as unmarried boys are amongst them eligible.
In Hari Gopal Agarwalla''s case reported in (1982) 1 GLR 117 it has been held:
What has been stated about non-application of rules of strict Hindu law in so far as adoption by Jains except those originally coming from Madras and the Punjab is concerned would apply to all Jains. This has been conclusively laid down by the Supreme Court in S.S. Munna Lal Vs. S.S. Rajkumar and Others, which dealt with adoption by Digambar Jains of porwal sect in Madhya Pradesh. The Supreme Court referred to a large number of decisions..., and held in para 11 that these cases clearly showed that the custom is generally applicable to Jains all over India except the Jains domiciled in Madras and Punjab. This was so irrespective of the sect to which a particular Jain belonged. It was also observed that where a custom is repeatedly brought to the notice of the courts of the country, the courts may hold that custom as introduced into the law without necessity of proof in each individual case.
In view of the above, it cannot be said that the Respondent-Defendant No. 2 has failed to show even prima facie that there is a custom applicable to the parties in the instant case permitting adoption of person above 15 years of age.
The next point urged by Mr. Nilomoni, learned senior Counsel for the Appellants-Plaintiffs, is that there was no ceremony of giving and taking. The original registered deed of adoption dated 23.10.85 produced before the court recites that the ceremony of giving and taking had been duly performed along with their religious ceremonies in presence of the relative and friends. In Devgonda Raygonda Patil Vs. Shamgonda Raygonda Patil and another, it has been held that if the adoption is disputed, it is for the Plaintiffs to prove that ceremony of giving and taking has not taken place.
AnOrs. point on which elaborate arguments has been advanced is that the adoption deed is a forged document. It is alleged that some of the signatures alleged to be of late Deepchand are not genuine, that only rolled thumb impressions of the natural parents of the Respondent-Defendant No. 2 were obtained in the register and that of late Deepchand was not obtained therein in contravention of Rule 17 of the Manipur Registration Rules, 1951, and that the registration of the adoption deed as a visit case in absence of any special cause was in contravention of Sections 31 and 38 of the Registration Act, 1908. The genuineness or Ors. wise of the signatures can be proved or disproved by evidence in the course of the trial. Before the trial begins, elaborate documentation of the merits of this and Ors. matters mentioned above is to be avoided while passing orders on application for ad-interim temporary injunction. In this regard Mr. Nandakumar Singh, learned senior Counsel for the Respondent-Defendant No. 2 points out to Section 16 of the Act. The Section reads:
Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
In the instant case, the registered adoption deed dated 23.10.85 signed by the person giving and the person taking in adoption was produced before the court. In Lal Man Vs. Dy. Director of Consolidation and Others, it has been held:
Learned Counsel appearing on behalf of the Appellant urged that once the conditions prescribed by Section 16 of the Hindu Adoption and Maintenance Act, 1956 in respect of the execution and registration of a deed of adoption has been complied with, it is to be presumed that the adoption had been in accordance with the provisions of the said Act unless and until it was disproved. In view of Section 16 a presumption has to be drawn by the court. But such presumption can always be rebutted on the basis of evidence adduced before the court concerned.
In the instant case, such evidence is yet to be adduced before the court concerned in the course of the trial. At this stage it cannot be said that the adoption was not made in compliance with the provisions of the Act.
Apart from the question as to the validity or Ors. wise of the adoption, we need to turn to the fact situation as regards the suit property. It is submitted that the major portion of the suit property has been under occupation of the Respondent-Defendant No. 2, and the rents in respect of the remaining portion under occupation of the tenants also have been collected by him. In para 24 of the impugned order dated 11.6.87 the learned Additional District Judge stated--
The Plaintiffs do not contend that they ever realised rent from the tenants...the copies of rent receipts filed by the Defendant No. 2 go to show that Rousenlal Chourasia and Kapil Dev have paid rents for some months to the Defendant No. 2. Under the circumstances of the case and nature of possession and occupation of the suit properties, the balance of convenience in relation to issue of interim injunction is not shown to be in favour of the Plaintiffs. Taking into consideration these facts and circumstances, I am of the opinion that no irreparable injury would be caused to the Plaintiffs if ad-interim injunction is not granted.
In the facts and circumstances of the case, we find no reason to differ from the above view taken by the learned Additional District Judge. He rightly rejected the Appellants-Plaintiffs'' prayer for interim injunction inasmuch as if the suit is ultimately decided in their favour, they can be compensated in terms of money, and it has not been shown that their inconvenience would far exceed the convenience of the Defendant No. 2 in the event of refusal of their prayer for interim injunction.
We do not intend to say more than what we have already said about the merit of the case. We are anxious not to prejudge or prejudice the case of either side. The learned trial court shall not be influenced by any observation we have made here for the purpose of disposing of the injunction matter only.
The concluding paragraph of the impugned order reads:
In the result, the Plaintiffs are not entitled to issue of temporary injunction. But the Plaintiffs application so far as it relates to Ors. just and equitable order should be allowed to the extent that the Defendant No. 2 should be ordered to execute a formal undertaking of Rs. 40,000/- that shall keep and furnish true and complete accounts of the rents and Ors. profits of the suit property collected and received by him and all monies spent therefrom in maintaining the present position of the suit property in the court for every three months before 15th of the month immediately succeeding the period.
We find the above directions just and equitable. We further direct that status-quo as regards the suit property shall be maintained and Respondent-Defendant No. 2 shall not make any construction thereon except normal repairs.
The impugned order dated 11.6.87 is upheld. The appeal fails and is dismissed. In the facts and circumstances of the case, the parties are left to bear their own costs.
The suit being original Suit No. 75/86/ 26/87 has been pending since a pretty long time and, as such, it requires expeditious disposal in accordance with law. Considering the existing facts and circumstances of the case, it is ordered that the said original suit shall be tried by the learned District Judge, Manipur East at Imphal and it is made clear that the learned District Judge shall dispose of the said case within a period of 4 (four) months from 4.4.2000 for which the parties shall appear before the trial court i.e., the court of the District Judge, Manipur East at Imphal on 4.4.2000 at 10.30 A.M. for the purpose of receiving directions of that court as to further proceedings in the suit.
Let the lower court records along with a copy of the judgment and order of this Court be transmitted forthwith to the trial court i.e. the court of the District Judge, Manipur East at Imphal so as to reach that court before 4.4.2000.
The trial court shall dispose of this long pending case within four months from the above mentioned date.