HARNAM KAUR Vs. BALBIR SINGH

JUDGEMENT

(1.) Harnam Kaur instituted the suit for declaration and possession out of which this revision has arisen. She died during the pendency of the suit and Karnail Singh applied to the Court below claiming to be the adopted son of Harnam Kaur and as such entitled to prosecute the suit. The defendants denied Karnail Singh's assertion that he was the legal representative of Harnam Kaur and also controverted the legality of his adoption by the deceased lady.

(2.) The only issue settled by the Court below was whether Karnail Singh was the legal representative of Harnam Kaur and as such entitled to be made a plaintiff. Reliance in the Court below was placed on Section 10 of the Hindu Adoption and Maintenance Act (No. 78 of 1956) but since Karnail Singh was admittedly a married man and about 50 years old it was opined that Karnail Singh's adoption could only be held valid if custom could be proved by him in support of such adoption, as required under clauses (iii) and (iv) of Section 10. After referring to question 72 and answer thereto of the customary law of Ferozepore District, the Court observed that in so far as the question of age limit is concerned, the claimant was entitled to a favourable decision. But in regard to the adoption of a married person the Court came to the conclusion that no custom justifying such an adoption was proved by the applicant. The oral evidence produced by him was considered not to be of much value. In the circumstances, Karnail Singh's application was dismissed. It is against this order that the present revision has been preferred.

(3.) Since the impugned order must necessarily lead to the dismissal of the suit, I desired the counsel to look up the position as to how far the impugned order can be considered to be revisable and also whether this order cannot be assailed on appeal against the decree. My attention was in this connection drawn to a Full Bench decision of the Lahore High Court in Ram Charan Dass V/s. Hira Nand, 1945 AIR(Lah) 298 for the view that a revision in such cases is entertainable. After considering the matter more deeply, I am also inclined to take the view that the present revision is competent. Appeal can ordinarily be preferred only by parties to the suit. Karnail Singh not being a party to the suit, he would, ordinarily speaking, not be entitled to assail the order of dismissal of the suit. It is in the circumstances open to him to approach this Court under Section 115, C.P.C. and also under Article 227 of the Constitution. As a matter of fact, the whole record being before this Court, in my opinion, this Court would also have ample power to go into the matter suo motu.