Excelsior Correspondent
SRINAGAR, Aug 6: High Court has held that an aggrieved person or party cannot pursue two remedies before the court at the same time to redress the grievance and dismissed the petition leaving it open to the court below to determine the issue which was raised in the petition.
Justice Sanjeev Kumar dismissed the petition by observing that it has no merit and left it to the competent court of jurisdiction to determine all the issues which were raised by the petitioner-Badri Nath in the petition despite the fact that the same were raised before the trial court in a civil suit.
“The petitioner is well within his right to contest that the civil suit before the civil court cannot be stayed under the provisions of the Jammu and Kashmir Migrant Immovable Act, for, the subject property to which the adoption pertains is not a migrant property”, reads the judgment.
The petitioner, court added, may have to work out his remedy as may be permissible in law, but surely he is not permitted to simultaneously pursue another remedy before this court under Article 226 of the Constitution.
“Looking to the dispute from slightly different angle, the adoption deed, which is subject matter of challenge before the Civil Court and is the basis of attestation of mutation, when read in its entirety, may not be a deed effecting any adoption, but it surely is a declaration by Anand Ram that after his death, his entire property would be inherited by his legal heir and, therefore, could possibly be taken as his last will”, Court recorded.
“Giving any opinion by this court about the document dated 19.01.1967 (adoption deed) is likely to prejudice the case of the parties pending before the Civil Court. It is, thus, left to the competent court of jurisdiction to determine all these questions. Without commenting upon the validity or otherwise of this document, it would be sufficient to say that, the question, as to whether the adoption in the instant case has taken place prior to or after the promulgation of the Act, is a disputed question of fact, to be determined by the competent Court of jurisdiction empowered to take evidence and decide such question after holding a full-fledged trial”, Court concluded.
The petitioner-Nath was aggrieved and has challenged an order dated 13.05.2014 passed by the Financial Commissioner. It is vide order dated 19.04.2005 passed by the District Magistrate, Anantnag disposing of an application filed by one Santosh Kumari (adopted daughter) the Tehsildar, Kulgam was directed to evict unauthorized occupant and take possession on his behalf of the land in question.
Feeling aggrieved, the petitioner-Nath filed an appeal before the F.C. While the F.C was seized of the appeal, he received a Reference from the Settlement Commissioner, J&K, Srinagar with the recommendation to set aside an order dated 06.11.2014 passed by the Assistant Commissioner, Kulgam pertaining to the subject land.
The genesis of the entire dispute between the petitioner and Santosh Kumari lies in the determination of a question, as to whether she is an adopted daughter of the deceased Anand Ram or not.
An adoption Deed executed by Anand Ram on 19.01.1967, declaring her to be her adopted daughter entitled to inherit his estate, was at the core of controversy raised before the F.C and the estate of Anand Ram has been attested in her favour being his sole surviving heir (adopted daughter).
Court was not convinced with the arguments of the petitioner counsel that the impugned mutations attested on the basis of adoption, which is null and void, could be challenged at any time. “Whether the adoption, which, as per the adoptee as also as per the recitals of adoption deed executed on 19.01.1967 took place about 8 years back, is legally valid or is null and void, is already a subject matter of adjudication in a suit filed before the Civil Court”, court said.
Court has not denied the fact that prior to coming into the operation of the Act of 1960, the adoption of a female child was not permissible in Hindu law. In this regard a great amount of stress was laid by petitioner counsel on his argument that an ancient Hindu law pertaining to adoption did not permit the Hindu to adopt a female child, nor the devolution of property was permissible on the adopted daughter.
Court also recorded that prior to the adoption Act; no adoption of a female child was permissible in the erstwhile State of Jammu and Kashmir under the ancient Hindu law, unless such adoption had the sanction of local tribal or family custom.
Court said, this is a complicated disputed question of fact to be determined by reference to the oral as well as documentary evidence of adoption which the parties have to adduce before the Civil Court at Kulgam where the civil suit is pending adjudication. “That apart, in the face of pendency of a civil suit filed by the petitioner challenging the validity of an adoption deed, it is not to the petitioner to throw challenge to the same adoption/adoption deed by invoking the extraordinary writ jurisdiction of this Court”, court added.
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