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Baina Naik and anr. Vs. Dhruba Charan Naik and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 346 of 1972
Judge
Reported inAIR1974Ori106; 39(1973)CLT939
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 25
AppellantBaina Naik and anr.
RespondentDhruba Charan Naik and anr.
Appellant AdvocateB. Harichandan and ;D.S. Nanda, Adv.
Respondent AdvocateK.M. Swain, Adv.
DispositionRevision allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........judge showing that there are authentic documents in possession of the first defendant to establish custom. if the case is remanded it would be encouraging perjury to be introduced to establish custom.5. the remand order was passed in illegal exercise of iurisdiction and is accordingly quashed.6. the next point for consideration is whether this case could be finally disposed of by me on the acceptance of the finding that though adoption was true in fact it is invalid in law. the lower appellate court did not pass a decree against which appeal lies. the civil revision is accordingly against the remand order. after the remand order is quashed the subordinate judge is to pass a decree. accordingly this court cannot pass any final order at this stage excepting recording the clear.....
Judgment:
ORDER

G.K. Misra, C.J.

1. Plaintiff No. 1 is the husband of plaintiff No. 2. Plaintiff No. 2 died during the pendency of this Revision. Their case was that defendant No. I was not their adopted son and they had adopted one Budha, son of Banchha. The registered deed of adoption (Exhibit C) purported to be executed by them was genuine. The case of the first defendant was that he had been adopted by the plaintiffs. The trial Court decreed the suit holding that Budjia had been adopted by the plaintiffs, and that the first defendant was not adopted by them. The lower appellate Court reversed those findings and came to the conclusion that Budha was not the adopted son of the plaintiffs and that they had adopted the the first defendant. He however recorded a finding that the first defendant was more than fifteen vears old at the time of adoption. As such an adoption was contrary to law he remanded the case to give an opportunity to the first defendant to establish that there was a custom prevalent in his society to adopt boys who are more than fifteen vears old. It is against this order remanding the case the Civil Revision has been filed.

2. Section 10 of the Hindu Adoptions and Maintenance Act, 1956 laysdown that no person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely.

'(iv). he or she has not completed the ase of fifteen vears, unless there is a custom or usage applicable to the parties which, permits persons who have completed the ase of fifteen years being taken in adoption.'

3. The learned Subordinate Judge was therefore right in his analvsis of law that the adoption of the first defendant was contrary to law and was invalid.

4. The only question for consideration is whether he was justified in remanding the case to give an opportunity to the first defendant to establish that there was a custom in his society that boys can be adopted even though they are more than fifteen years old. He exercised the jurisdiction illegally in passing such a remand order. Law is settled that custom must be pleaded and proved. There was no such plea in the written statement much less there was proof. No affidavit was filed before the Subordinate Judge showing that there are authentic documents in possession of the first defendant to establish custom. If the case is remanded it would be encouraging perjury to be introduced to establish custom.

5. The remand order was passed in illegal exercise of Iurisdiction and is accordingly quashed.

6. The next point for consideration is whether this case could be finally disposed of by me on the acceptance of the finding that though adoption was true in fact it is invalid in law. The lower appellate Court did not pass a decree against which appeal lies. The Civil Revision is accordingly against the remand order. After the remand order is quashed the Subordinate Judge is to pass a decree. Accordingly this Court cannot pass any final order at this stage excepting recording the clear finding that the adoption of the first defendant is invalid to law.

6-A. In the result, the order of the learned Subordinate Judge is set aside. The case is remanded to him for final disposal. The Civil Revision is allowed, but in the circumstances without costs.


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