RENU SHARMA Vs. SHAILESH SHARMA & ORS

JUDGEMENT

(1.) The petitioner is aggrieved against the order dated 20.02.2013 passed by the trial court, whereby, her application filed under Order VII, Rule 11 CPC has been dismissed.

(2.) The facts in brief are that the respondent No.1 filed an application under Section 372 of the Indian Succession Act, 1925 ('the Act') seeking succession certificate qua the moveable properties of deceased Prem Chand Sharma. It was claimed that the applicant was adopted son of the deceased. A further plea was raised that an application has been filed by one Rajneesh Sharma before the employer of his father Prem Chand Sharma claiming himself to be the adopted son of deceased Prem Chand Sharma based on a registered adoption deed dated 10.12.1993. It was claimed that the said registered adoption deed was a concocted document and the same does not create any right in favour of said Rajneesh Sharma. After service on the respondents therein, the respondent Rajneesh Sharma died after filing his reply to the said application and after the petitioner- wife of Rajneesh Sharma was brought on record as legal representatives, an application under Order VII, Rule 11 CPC was filed to the effect that the suit was barred in view of the provisions of Section 11 of the Hindu Adoption and Maintenance Act, 1956 ('the Act of 1956'), inasmuch as, in the presence of an adopted son, deceased Prem Chand Sharma could not have adopted the applicant Shailesh Sharma and, therefore, the application under Section 372 of the Act was liable to be dismissed as barred by law.

(3.) The trial court after hearing the parties has rejected the application by the impugned order after coming to the conclusion that the validity of the documents executed in favour of late Rajneesh Sharma adopting him as son by Prem Chand Sharma is required to be adjudicated first and it is only on the Court coming to the conclusion that the document was liable to be considered then only, the consequences under Section 11 of the Act of 1956, which deals with conditions for a valid adoption and, inter alia, provides that if a adopted son is living at the time of adoption the father/mother cannot adopt another person and as a registered adoption deed dated 10.12.1993 exists, the another registered adoption deed dated 29.07.2004 is a void document and the same cannot form basis for grant of succession certificate under Section 372 of the Act and, consequently, the application being barred by law was liable to be rejected under the provisions of Order VI, Rule 11B CPC.