“The question as to whether a Muslim can adopt any person
and it is legally permissible or not, was considered by the
Division Bench of Allahabad High Court in a decision in the
case of Mohd. Atiq Khan V. Union of India and others
2003(3) AWC 1818 (Justice Markandey Katju, as he then was,
and Justice Prakash Krishna). The Division Bench relied on
the Full Bench decision of the Allahabad High Court reported
the case of Muhammad Allahdad Khan V. Muhammad Ismail
Khan, (1888) ILR 10 All 290 wherein it was held that among
the muslims, the doctrine of acknowledgment of paternity is
available and there is no question of adoption in muslim law.
The Division Bench also relied on the view expressed in
Mulla's muslim law vide Chapter XVII and the principles of
Mohammedan Law by Amir Ali vide Part II Chapter I.
In an unreported judgment of the Karnataka High Court,
made in R.S.A. No.2262 of 2005 dated 26.10.2009, the
question regarding adoption among muslims was considered,
in which the Karnataka High Court held that adoption by a
person who is a muslim, cannot be pleaded as there is no
concept of adoption known to muslim law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 948 OF 2013
WITH
CIVIL APPLICATION NO.1201 OF 2013
Sunder Shaekhar
Vs.
Shamshad Abdul Wahid Supariwala
Coram : Anoop V. Mohta, J.
Judgment Pronounced On: 15 & 20 November 2013.
Citation;2014(3) ALL MR331 Bom
Read original judgment here;http://bit.ly/QPtkIB
1 The Appellant (Original Defendant No.1) has challenged order
dated 3 October 2012 passed in Civil Suit No.2305 of 2010 passed by the
learned Judge, City Civil Court, Bombay. The operative part of order is as
under:
“1.The notice of motion no.2722 of 2010 is allowed
2.The defendant no.1 is temporarily restrained from portraying
himself as an adopted son of late Haji Mastan Mirza in any
manner whatsoever until further order.
3.The defendant nos.2 to 4 are also temporarily restrained from
projecting or introducing the defendant no.1 as an adopted son
of late Haji Mastan Mirza in any manner whatsoever until
further order.
4.Cost as in cause.
2 Respondent Nos.1 to 3 (Original Plaintiffs) are daughters of
late Haji Mastan Mirza (the deceased). The original Defendant Nos.2 to 4
(Respondent Nos.4,5 & 6) are Printers/publishers/TV news channel of
India. The prayers of suit are:
“(a) Hold & Declare that adoption of son is not recognized by
Islamic Law.
(b) Hold & Declare that Defendant No.1 is not an adoipted
son of Haji Mastan Mirza.
(c) Hold & Declare that Defendant Nos.2 to 4 (print &
visual media) have no right to portray Defendant No.1 as
adopted son of Haji Mastan Mirza.
(d) Restrain by way of Perpetual injunction the Defendant
No.1 his agents, servants, managers, representatives, etc. and
all person/s claiming through the Defendant No.1 from
portraying the Defendant No.1 as an adopted son of Haji
Mastan Mirza.
(e) Restrain by way of perpetual injunction Defendant Nos.2
to 4, their agents, servants, managers, representatives etc. and
all person/s claiming through them from portraying
Defendant No.1 as adopted son of Haji Mastan Mirza.”
3 As per the Appellant, on 27.9.1989 the deceased Haji Mastan
Mirza founded a political party namely All India Dalit Muslim Suraksha
Mahasangh. The party got registered with Election Commission of India,
on 19.5.1992 changed its name to Bharatiya Minorities Suraksha
Mahasangh. The appellant was very close to the deceased. He called and
treated the Appellant as his son. The deceased had no son. This fact was
known to the friends, relative and associates. As per the Appellant, he was
orally adopted by the deceased. On 11.6.1992, the Appellant got married;
all the invitees were invited by the deceased. On 24.6.1994, the deceased
expired, leaving behind daughters-Respondent Nos.1 to 4. All his final
rites were performed by the Appellant as his son.
4 The Appellant has acquired a tenanted office premises, shop
no.3 Arcadia Building, Sir JJ Road, Mumbai and paid money for the same.
However, he had obtained the rent receipt in the name of the deceased. In
the year 2006, Respondent No.1 and her husband had been visiting the
party office and trying to usurp the office, as Appellant had been
conducting the party activity from the office. In October 2006, the
Appellant filed a declaratory suit being Suit No.2253 of 2006 in the Small
Causes Court, Mumbai wherein the Small Causes Court had granted an
injunction against Respondent No.1.
5 On 25.6.2007, Respondent No.1 alongwith many unknown
person visited the party office to claim the party office. She had wrongly
declared herself to president of party. On 8.10.2010, Respondent Nos.1 to 4
filed a suit in the Bombay City Civil Court against the Appellant seeking
permanent injunction against the Appellant, from portraying himself to be
adopted son of the deceased. Respondent Nos.1 to 4 taken out Motion in
the suit. On 10.3.2011, the Appellant filed its reply to the motion. On
5.8.2011, the Respondents filed the rejoinder. On 3.10.2012, the learned
Judge of City Civil Court passed above impugned order.
6 The law with regard to the adoption by Muslim and/or under
the Mohammedan Law, as contended by the learned counsel appearing for
the Plaintiffs based upon the judgment so referred and relied is that the
concept of adoption has not been statutorily recognized in India amongst
Muslim community. It is certainly recognized amongst the Hindu
community. The Madras High Court, in S. Mala Vs. Commissioner of
Police, Trichy1 has observed as under:
1 LAWS(MAD)-2012-1-270, MADLJ-2012-3-553
“The question as to whether a Muslim can adopt any person
and it is legally permissible or not, was considered by the
Division Bench of Allahabad High Court in a decision in the
case of Mohd. Atiq Khan V. Union of India and others
2003(3) AWC 1818 (Justice Markandey Katju, as he then was,
and Justice Prakash Krishna). The Division Bench relied on
the Full Bench decision of the Allahabad High Court reported
the case of Muhammad Allahdad Khan V. Muhammad Ismail
Khan, (1888) ILR 10 All 290 wherein it was held that among
the muslims, the doctrine of acknowledgment of paternity is
available and there is no question of adoption in muslim law.
The Division Bench also relied on the view expressed in
Mulla's muslim law vide Chapter XVII and the principles of
Mohammedan Law by Amir Ali vide Part II Chapter I.
In an unreported judgment of the Karnataka High Court,
made in R.S.A. No.2262 of 2005 dated 26.10.2009, the
question regarding adoption among muslims was considered,
in which the Karnataka High Court held that adoption by a
person who is a muslim, cannot be pleaded as there is no
concept of adoption known to muslim law.
7 The Patna High Court, in Md Amin Vs. State of Bihar2 has
recorded as under:
“In the principles of Mahomedan Law by M. Hidayatullah
(N.M.Tripathi Pvt.Ltd.) 1990 under Section 347, it is
specifically mentioned that the Mahomedan law does not
recognize adoption as a mode of filiation. Tahir Mahmood in
his book, “the muslim Law of India, 3rd Edition page 137 “has
mentioned”. The various kinds of sons other than sons by birth
are are wholly unknown to muslim Law. So, a person can be
the child of the woman who has given birth to that person and
of the man who has or is believed or legally recognized to
have begotten that person 12½ and none else”.
In view of the above, the claim of the petitioner to be
appointed on compassionate ground has rightly been rejected
by the impugned order as he would not have claimed such
appointment on the plea that he was the adopted son of the
deceased constable late Md. Kasim as the Mahomedan Law
does not recognize adoption as a mode of sonship and under
the muslim Law the adoption does not create a parent and
child relationship.”
8 The Appellant, however, relied upon a judgment based upon
Muslim Personal Law (Shariat) Application Act 1937 in Moulvi
Mohammed Vs. S. Mohaboob Begumgu3 where it is observed as under:
“We find that Clause (b) of Section 16 of the Madras Act III of
1873 contemplates that any custom having the force of law
and governing the parties or property concerning shall form
the rule of decision in respect of subjects enumerated in the
main part of the section unless such custom has; by legislative
enactment, been altered or abolished. We find that adoption is
not of, the matters dealt with in the main part of S 16 of
Madras Act III of 1873. The nonmention of other 'subjects
such as adoption in respect of which a valid custom could
given and binding on the parties does not mean that it is not
permissible for the parties to rely on such a valid custom, if
there be one. Section 6 of the Shariat Act- repealed S. 16 of
Madras Act III of 1873, in so far as it is inconsistent with the
provisions of the Shariat Act. This repeal is of no significance
at all for the purpose of this case firstly because Section 16 of
the Madras Act III of 1873 has not specifically referred to
adoption, as one of the subjects, for a decision regarding
which custom shall form the rule. Secondly, even otherwise,
in Section 2 of the Shariat Act, adoption is not one of the
enumerated subjects, regarding which custom or usage is ruled
out. Even if the matter, has been brought within the purview of
Section 2 of the Shariat Act, by virtue of a declarator under
Section 3(1) thereof- in the instant case, there is no such
declaration – there will not be any inconsistency between the
3 AIR 1984 Mad 7, (1983) IIMLJ 357)
provisions. Hence, in the absence of any exclusion or ruling
out of custom, relating to adoption under the Shariat Act, in
the instances, it is possible to plead and prove such a custom
or usage having, the force of law in the locate and amongst the
concerned parties. In this context I feel obliged to adopt the
ratio of the Bench in Puthiya Purayil Abdurahiman V. T.K.
Avoomma AIR 1956 Mad 244 that the Shariat Act did not in
terms, totally abrogate custom and usage in respect of matters
other than those enumerated in Sections 2 and 3(1) thereonf.
If this is the basis to be taken for the purpose deciding
the question as to whether the respondent could come on
record as the legal representative of the deceased Zaina Bi on
the ground that she is her adopted daughter, then the question
that would arise for consideration are: (I) whether there is a
custom or usage having the force of law, which recognizes
such adoption in the locate and amongst the parties concerned;
(ii) whether the respondent has proved such a custom or usage
and further the factum of adsorption in accordance with
custom or usage; (iii) whether, as the adopted daughter of the
deceased Zaina Bi, the respondent could be countenanced as
her legal representative in law for purpose of of the present lis.
It is needless to point out that custom must be ancient and the
burden of proof lies upon the party who sets up the custom.
The custom to bold good in law must be reasonable and the
majority at least of any given class of persons must look upon
it as binding and it must be established by a series of well
known, concordant and on the whole continuous instances. It
is true that the respondent has placed some evidence before
the Court below on the question of custom and the factum of
adoption as per the custom. But, as rightly pointed out by Mr.
S.M. Amjad Nainar, learned counsel for the petitioners, the
evidence is from satisfactory and cannot, by itself, bring any
conviction to the mind of this Court.
The Court therefore needs to consider this issue of “adoption
in Mohammedan Law” in trial
9 Both the learned counsel have cited various judgment dealing
with the aspect of grant of interim mandatory relief/injunction which
resulted into grant of final relief of the suit itself. These judgment are (1)
Gujarat Bottling Co.Ltd. Vs. Coca Cola Co.4 (2) Colgate Palmolive (India)
Ltd. Vs. Hindustan Lever Ltd.5, (3) Seema Arshad Zaheer Vs. Municipal
Corpn of Gr. Mumbai6, (4) Zenit Mataplast Private Limited Vs. State of
Maharashtra7, (5) Home Care Retail Marts Private Limited Vs. New Era
Fabrics Limited8, (6) Deoraj Vs. State of Maharashtra9, (7) Biju Ramesh
Vs. J.P. Vijayakumar10,
10 (a) The basic provisions of grant of injunction including adinterim
and/or imperative flow from the provisions of Code of Civil
Procedure (CPC) Order 39 Rule 1 to 8 or 40 and Section 151. The other
provisions of Specific Reliefs Act, 1963, especially Section 34 to … 41(b)
and 42. The court, if case is made out, even can grant temporary injunction
in exercise of its inherent power as contemplated under Section 151 of
CPC if case is not covered under Order 39 and/or other provisions of the
4 (1995) 5 SCC 545
5 (1999) 7 SCCC 1
6 (2006) 5 SCC 282
7 (2009) 10 SCC 388
8 (2009) 17 SCC 429
9 (2004) 4 SCC 697
1 0 AIR 2005 Kerala 196
Specific Reliefs Act, but it cannot be against the law.
(b) The Court can grant the interim temporary injunction unless it
is in aid and auxiliary to the main/final relief that may be granted, but in a
given case, an ad-interim temporary relief may be required to be granted
exparte till the other side appears and contest the same. The Court, after
hearing the parties, even change and/or vary and/or modify the ad-interim
and/or temporary relief, so granted. Principally, if no relief can be granted
in terms of main prayers, there is no question of granting even a temporary
relief on same terms. However, the Court needs to exercise the discretion
juridically.
(c) Ad-interim and/or temporary relief, unless exceptional case is
made out, cannot be granted having effect of granting final relief at adinterim
and/or interim stage. However, there is no total bar if exceptional
circumstances are made out and though the case does not fall within the
ambit of Order 39 and/or other provisions of Specific Reliefs Act, to pass
such protective and/or interim injunction relief, but certainly cannot be
against the expressed and/or implied statutory provisions of law and
against the public policy.
(d) The principles of natural justice, equity, and fair play are also
important factors apart from inherent power, the Court may invoke while
passing any such ad-interim and/or interim relief pending the main/final
relief.
(e) An ad-interim relief and/or mandatory ad-interim relief
therefore can also be passed/granted by the Court to maintain status-quo
ante so that appropriate final relief can be granted by modifying and/or
molding the same, basically to protect the interest of the parties and the
properties pending the trial of the suit.
(f) The Court cannot restrain by prohibition and/or injunction any
party not to initiate and/or institute and prosecute any proceedings in Court
of law in normal circumstances.
(g) The judicial exercise of discretion of the Court required to be
exercised within the framework of law and the record and the same should
be on the foundation of (i) “a prima facie case”, (ii) “the balance of
convenience”, (iii) “an irreparable injury” and iv) “equity”. The purpose is
always to protect the Plaintiffs/aggrieved parties' legal and alleged/existed
rights against the alleged violation and/or injury by other party and which
could not be compensated in damages.
(h) The vague, uncertain and/or false and/or misrepresentation
and related averments need to be taken note of in the context of
corresponding and similar right and entitlement of the other party and/or
the Defendants. The interest/right of other party therefore also required to
checked into and protected and at least need to be taken into consideration
till the same are resolved in favour of either of the parties at the
appropriate proceedings.
(i) The prohibition and/or injunction and/or such interim
protection/relief based upon the doctrine of equitable fair and unfair
conduct of the parties invoking the jurisdiction of the Court, are also
relevant factors. The conduct of the parties must be fair and honest, not
even at the time of invoking the Court's jurisdiction for granting of such
relief but also at the time of applying for modification and/or verification
and/or vacating the ad-interim and/or temporary injunction
(j) The Court is also not bound to grant interim protection/relief
in every case and/or to enforce the negative covenant based upon the facts
and circumstances of the case including the contractual terms between the
parties. The Court also requires to consider before passing the reasoned
order apart from material placed on record, the aspect of the compensation
and/or damages. Plaintiff's uncertain allegations, apart from fraud and/or
misrepresentation, itself dis-entitled him to continue with the order of adinterim
injunction and/or restrainment order or though temporarily as it
would cause irreparable, uncompensatable damages and/or compensation.
The law permits the Court to insist and/or require the Plaintiffs to furnish
an undertaking and or the security so that the Defendant/other side
adequately compensated, if order and/or trial goes against the party one
who sought interlocutory injunction and order of drastic nature. Such
interim order and/or such order should be reasonable and fair having
foundation of record and the law.
(k) The subject and object of the particular provision and/or
statute and the rights and/or entitlement so invoked and its related aspects,
custom, usage and practice at national and/or international level. For
example, if case/reliefs sought by the Plaintiffs/Petitioners by invoking the
provisions of Intellectual Properties Laws and the arbitration laws the
scheme purpose and object of the Act/reliefs/customs/practice apart from
authorities and case laws, are always play material role for the Court
before passing and/or exercising discretion in granting and/or refusing to
grant the injunction and/or protective relief, specially when both the parties
appear and make their case/submissions based upon the supporting
material placed on record.
(l) Any injunction and/or order specially in India, in view of
Section 27 of Indian Contract Act, is also important element in litigations
based upon the commercial contract or otherwise.
(m) The aspect of interest of public at large and not only the
interest of individual, who may be compensated in terms of money, if case
is made out, is also one of the relevant factor.
(n) At the ad-interim stage the Court, based upon the averments
and material so placed and if case is made for an ad-interim urgent relief,
based upon the averments and the documents, but after satisfying himself
by exercising the discretion judicially, an arguable and/or prima facie case
is made out, may pass appropriate order in the interest of justice, though
temporarily, till other side appears and points out his case. The Court
required to consider the rival contentions of the parties at the earliest.
(o) A prima facie case itself is not the sole element. The balance
of convenience and/or inconvenience and/or equity, in a given case, are
also relevant factors. Even if these elements are there and/or made out, the
conduct of the parties is also relevant factor. The Court still needs to
consider the aspect of delay and latches in invoking such equitable
jurisdiction of the Court. The third person's rights or interest if any created,
for whatsoever may be the reason, the party who invoked Court
jurisdiction to grant interim and/or protective relief to avoid injury
personal injury and the injury to the property, just cannot be overlooked.
The injunction and/or interim order, if any, granted and/or ordered, the
opposite party/person must be in a position to comply with the same. The
timely action including the communication of such order is important to
give effect to the order.
(p) The Court may not pass impractical and/or unexecutable
and/or infructuous and/or academic orders. Interim order should be fruitful,
effective and enforceable in law.
(q) The person or party against whom the injunction and/or
interim relief sought must be joined as a party to the proceedings. The
Court should not pass any order against the third persons and parties who
are not parties to the proceedings, unless exceptional case is made out and
to avoid immediate loss and/or injury to the person and/or the property.
The fair and full opportunity, required to be given against whom the
Plaintiff seeks interim and/or ad-interim relief specially when the dispute is
between two private parties and/or person. In case the public interest
litigation and/or where the public at large are involved, the Court may pass
appropriate order/relief in the interest of public at large.
(r) The Court in case of urgency may not be in a position to judge
the merits of the case of the respective parties for want of detail averments
and/or material. But once satisfied, by giving short notice or sufficient
notice, an ad-interim relief may be granted. If case is made out by the
Plaintiffs that there is a serious issue required to be decided and if the
Defendants were not restrained, the compensation/damages would be
inadequate and/or there would be irreparable injury and hardship which
cannot be compensated in terms of money. The concept of arguable issue
and/or tribal issue including of aspect of Court's jurisdiction and as
contemplated under Section 9A of CPC, is also relevant factor, but the
Court is not prevented from passing ad-interim relief pending the decision
of the Court jurisdiction issue. The issue of jurisdiction if decided already,
in view of judgment of the higher Courts and/or the provisions of
law/statutory provisions are clear, which prohibits and/or debar the Court
from entertaining any civil suit proceedings in view of specific provisions
and mechanism provided under the Specific Law/statute, the Court in such
situation may refuse and/or entertain such interim injunction application.
Even if granted such relief, the Court is under obligation to decide and/or
dispose of the issue of Court jurisdiction at earliest to avoid further
complication, apart from further loss of time and money of everybody. The
Court must decide the preliminary issue of jurisdiction by passing order on
the application filed by the parties at earliest or even otherwise.
(s) Assessing relative strength of the parties is important so also
above principle of law while passing equitable relief. The court definitely
may modify or vary the order, if case is made out. No final expression
and/or opinion on merits of the matter is necessary, but it cannot be
overlooked while even passing any ad-interim order. All facets of law
include and cover the reasonable and judicial exercise of discretional
power by the Court. The Court cannot ignore the strength of either of the
parties submissions though no fixed Rule or formula can be announced for
grant of any interim relief and/or injunction. The facts and circumstances
of each case should be the foundation before passing any interim order
apart from principles of law of injunction and/or prohibition as noted
above.
(t) In a given case, the Court may pass appropriate interlocutory
injunction to mitigate the risk of injustice for a certain period and or till the
decision of the dispute so raised. However, the Court proceedings cannot
be permitted to be used and utilised for and by the unscrupulous and/or
defaulters and/or persons who play fraud and/or who invoked the Court
jurisdiction by intentionally suppressing material facts and documents. In a
given case though all ingredients are available, but on the ground of fraud
and/or misrepresentation the Court may refuse to entertain and/or grant any
equitable urgent relief.
(u) The aspect of injunction and/or prohibitory order by crossing
national and/or international jurisdiction or borders has different facets, but
above principles are relevant even for granting and/or passing injunction
and/or prohibition order against the party beyond the Court's jurisdiction
and/or beyond the control.
(v) The Court must not act arbitrarily, capriciously order
perversely. The court must exercise discretion judicially within the
framework of law and the record.
(w) Such interim relief/protection, even required to be granted for
and/or against the persons who are invoking the Court's jurisdiction being
a defaulter of any kind and/or unauthorized occupier of any premises
and/or trespasser or occupants of an unauthorised structure of private
and/or the government or statutory body land and/or the footpath. The
specific provisions of law which debars the Court from entertaining such
suits, are also important factors, before granting an injunction so sought
for. The Court/Tribunal, therefore, in such matter requires to exercise
jurisdiction in accordance with law and pass order by giving an
opportunity to all the concerned, even considering the aspect of delay,
latches and interest of public at large, and not only the interest of such
individuals.
(x) The mini trial may not be necessary at the stage of grant of
temporary injunction, but the above principles just cannot be overlooked
while passing the order-interim and/or protective order based upon various
uncertain and certain situations to meet the ends of justice. The Court need
to strike balance between the extreme positions as averred considering all
the pros and cons of the case in a given set of facts by speaking reasoned
order.
11) Admittedly, there are litigations pending between the parties
though not directly on the adoption but related to the tenancy and the
property rights of the deceased. There is no serious issue that the
Appellant had long association with the deceased since childhood. They
had good and cordial relationship, apart from the material to justify treated
like son since 1983/1989/1992. The Appellant's own case is that the
deceased referred and treated him like his son and had “orally adopted me
as his son and had been since treating me as his own son”. The name was
also changed announced as “Suleman Mirza”. The Respondents-Plaintiffs
and the concerned community are fully aware of this. Admittedly, the
Appellant not converted to the Islamic religion till this date. In the political
arena, the Appellant has been closely known and associated with the
political party. The adoption and/or no adoption is not relevant, so far as
the leaving in the society as treated son, the community and being the
leader and/or the active member of the political property and/or even with
the close associations. There are ample material on record including the
averments of the parties about such good relationship of the Appellant with
the deceased and the family members. The earlier relationship and
specially during the life time of the deceased, the recognition and/or the
treatment so given to the Appellant by all, just cannot be overlooked as
relevant factor for considering the case of the Respondents-original
plaintiffs and/or the defence of the Appellant.
12 There is even no denial to the fact of last “Chaliswan rites” as
per the Islamic Law, preferred by the Appellant when the deceased died on
25 June 1994 being the only treated son. No objection was raised at any
time by the Plaintiffs and/or other relatives, of this nature, during the life
time of the deceased and even on the death and thereafter till the date of
the alleged cause of action in the year 2007-2008 and 2010. There is no
serious denial to the facts of religious rites at the death anniversary of the
deceased every year “Fateha” and all related rituals and published material
by him. There is also ample material to show that the Appellant tried to
help and assist the other family members/daughters of the deceased in
various criminal and the civil litigations. No objection even at that time
was raised by any one. The Plaintiffs and other relatives recorded and
accepted even in writing that the Appellant is the close and confident
person and even recorded in MOU dated 27 May 2005 in other
proceedings. The Appellant, in fact, averred that he is not interested in the
property of the deceased “my godfather”. The main dispute arose when the
Plaintiffs and the others related tried to enter into the party office which is
the subject matter of the other pending litigation. The Appellant averred to
place on record the supporting material to show that the deceased had
declared and announced as his son. All these matters are matter of trial and
detailed inquiry.
13 The question still remains if “Adoption” which is not
permissible under the Islamic Law as per the Plaintiffs-Respondents, which
is denied by the Appellant by referring to the Judgment so recorded above,
the Court required to consider this basic aspect at this prima facie stage, in
view of the facts and circumstances of the case, apart from the Islamic law,
as well as, the law of injunction as read and referred by the parties.
14 There is no direct material and/or evidence placed on record
by the Appellant to show that he was adopted by the deceased by following
any particular Islamic custom and/or usage. As per the Islamic law, except
the alleged custom of particular community, the “adoption of son” is not
recognized. The burden, therefore, is lies upon the Appellant to prove the
same. The Appellant's own case, as per the averments itself, that the
deceased declared and/or announced orally and treated him as “adopted
son” and/or treated him like his son. The treating any person like son
and/or daughter even though having close relationship and association, that
itself is not sufficient to treat the son and/or daughter unless recognized
and/or validly proved under the Islamic Law to be the “adopted son” by
“the deceased and/or any Islamic person”. But, at the same stroke, in the
present facts and circumstances, and in view of above undisputed position
on record that the Appellant had been treated like his son from his
childhood, just cannot be overlooked specially when there was no
objection of any kind raised by the Respondents-Plaintiffs during the life
time of the deceased and/or even thereafter till the alleged cause of action
arose.
15 The meaning of “adoption”/ “adopt” is defined in the various
English Dictionaries, is as under:-
a) Concise Oxford English Dictionary (Indian Edition)
(Eleventh Edition, Revised)
“Adopt”- (1) legally take (another's child) and bring it
up as one's own ….........
b) Wharton's Law Lexicon, with exhaustive reference
to Indian Case Law (Fifteenth Edition) Universal
Law Publishing Co. Pvt. Ltd.
“Adoption”- an act by which a person adopts as his
own the child of another. Until recently there was no
law of adoption in this country though it exists in other
countries, as France and Germany, where the civil law
(as to which, see Sand. Just.) prevails to any great
extent. In 1889 and 1890, Lord Meath introduced Bills
in the House of Lords to legalize adoption.
c) K.J. Aiyar's Judicial Dictionary, (Eleventh Edition),
The Law Book Company (P) Ltd.
“Adoption”- It is the legalised recognition of a person
as one's son. According to the Hindu notions, a son is
necessary to a person not only to continue the lineage
but to offer oblation to the means or the ancestors to
the fourth degree. The soul of a person dying issueless
will not be saved. So this institution has been founded
on the Hindu law. The person adopted has all the
privileges of a natural born son except that there is a
lessening in the share of property different according
to the various schools of Hindu law, if a natural son is
born subsequent to the adoption. Certain ceremonies
are necessary for adoption. There are five kinds of
adopted sons of which Dattaka and Kritrima are the
two forms ordinarily found in India.”
16 The prayers are made by the Plaintiffs against the Appellant
and thereby prayed for injunction, as recorded above. The Islamic Law if
nowhere permitted and/or recognized that any person can be declared
“adopted son” unless duly proved by the custom as alleged. The claim
and/or related entitlement in the Society and/or community merely
because, some paper publications are made and/or done and/or such
publicity was given in the multi-media including papers, that itself is not
sufficient to deny the Appellant's claim of being treated like son by the
deceased. The Appellant himself had claiming and averred that he was
“orally adopted” by the deceased. There is no bar and/or restriction
whatsoever, under any law which prevent anyone, the adult and/or the
minor and/or the major to have such a relationship of father and/or mother
and/or son and/or daughter and/or brother. There is no claim of property of
the deceased by the Appellant on the basis of “adopted son”, the
prohibition so raised and/or averred in the background of the matter, is not
acceptable to grant the relief so sought in such fashion in such subsequent
suit. The balance needs to be struck, specifically at the instance of the
Respondents-original plaintiffs, who never objected for such statement
and/or publicity given by the deceased when he was alive by treating the
Appellant as his son. The delay and the latches on the part of the Plaintiffs
in this background are also another factor, which just cannot be overlooked
at the time of passing of such type of final reliefs at this stage of the suit.
The balance of convenience, equality and irreparable injury, if any, are
again the matter which required to be noted by the Court while passing the
order. Any order, even if passed by the Court, must be executable and
enforceable.
17 In the Mohammedan Law the “adopted son” if is not
recognized unless proved in view of customs if any and in the present case
when Defendant No.1 himself averred that he is orally adopted son and he
he has no interest in the property and/or demand in the properties of the
deceased the declaration so sought required to be considered in a due trial.
But at this stage itself no such order can be passed as done in the matter.
The long relationship and the close association as recorded in the society
and the community, by and between the Appellant with the deceased just
cannot be overlooked. The word “adoption” as averred itself not sufficient
to deny the claim of the Appellant.
18 Defendant Nos.2 to 4 are the print and visual media persons.
Such injunction only against them could not serve the purpose even
otherwise. Merely because averments are made that itself, in my view, is
not sufficient to pass order against Defendants Nos.2 to 4 as the averments
and also the material on record show that the deceased Haji Mastan Mirza
treated Defendant No.1-Appellant as his son since so many years and all
the parties including Plaintiffs have full knowledge of the same since long
and so also the concerned community and the political party in question.
Therefore, the injunction so granted, in my view, is required to be set aside.
However, it in no way means to state that Defendant No.1 treat himself as
adopted son under the law. That this modification means he may be treated
like his son which no one can prevent as there was no objection at relevant
time when the deceased was alive and even thereafter and so also in the
community as well as political party. This also means that Defendant No.1
in no way at this stage entitle to claim any right and/or interest in the
properties of the deceased as alleged legal adopted son unless adoption is
proved. In view of above reasons there is no question of granting
injunction against Defendant No.1 and/or his agents or his servants and/or
managers and representatives from portraying Defendant No.1 as treated
like son and/or closed association with the deceased, at this stage of the
proceedings and after so many years. The delay, elements of latches,
conduct, equity, balance of convenience, irreparable injury and prima facie
case goes against the Plaintiffs but support the case of the Appellant.
19 The words “adopted son” is result of apprehension of the
Plaintiffs, in view of the proceedings so initiated and as recorded. The use
of this word itself is not sufficient to deny the existence of long
relationship between Defendant No.1 and the deceased. Therefore, I am
inclined to interfere with the order. The impugned order dated is quashed
and set aside. The Notice of Motion is dismissed. However, it is made clear
that Defendant No.1, pending the suit, is not entitle to claim any right or
interest in the properties of the deceased as a adopted son but entitle to
claim the rights and interest in other capacity. It is also made clear that
these observations are only for deciding the present Appeal from Order.
The learned Trial Judge to decide the matter uninfluenced by the
observations so made in accordance with law. The averment raised in other
proceedings need to be treated in accordance with law uninfluenced by
above directions. No costs.
20 The learned Counsel appearing for the Defendants seeks stay
of the order so passed today in Court. Considering the reasons so given, I
am declined to grant stay. The request is rejected accordingly.
(ANOOP V. MOHTA, J.)
Print Page
and it is legally permissible or not, was considered by the
Division Bench of Allahabad High Court in a decision in the
case of Mohd. Atiq Khan V. Union of India and others
2003(3) AWC 1818 (Justice Markandey Katju, as he then was,
and Justice Prakash Krishna). The Division Bench relied on
the Full Bench decision of the Allahabad High Court reported
the case of Muhammad Allahdad Khan V. Muhammad Ismail
Khan, (1888) ILR 10 All 290 wherein it was held that among
the muslims, the doctrine of acknowledgment of paternity is
available and there is no question of adoption in muslim law.
The Division Bench also relied on the view expressed in
Mulla's muslim law vide Chapter XVII and the principles of
Mohammedan Law by Amir Ali vide Part II Chapter I.
In an unreported judgment of the Karnataka High Court,
made in R.S.A. No.2262 of 2005 dated 26.10.2009, the
question regarding adoption among muslims was considered,
in which the Karnataka High Court held that adoption by a
person who is a muslim, cannot be pleaded as there is no
concept of adoption known to muslim law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 948 OF 2013
WITH
CIVIL APPLICATION NO.1201 OF 2013
Sunder Shaekhar
Vs.
Shamshad Abdul Wahid Supariwala
Coram : Anoop V. Mohta, J.
Judgment Pronounced On: 15 & 20 November 2013.
Citation;2014(3) ALL MR331 Bom
Read original judgment here;http://bit.ly/QPtkIB
1 The Appellant (Original Defendant No.1) has challenged order
dated 3 October 2012 passed in Civil Suit No.2305 of 2010 passed by the
learned Judge, City Civil Court, Bombay. The operative part of order is as
under:
“1.The notice of motion no.2722 of 2010 is allowed
2.The defendant no.1 is temporarily restrained from portraying
himself as an adopted son of late Haji Mastan Mirza in any
manner whatsoever until further order.
3.The defendant nos.2 to 4 are also temporarily restrained from
projecting or introducing the defendant no.1 as an adopted son
of late Haji Mastan Mirza in any manner whatsoever until
further order.
4.Cost as in cause.
2 Respondent Nos.1 to 3 (Original Plaintiffs) are daughters of
late Haji Mastan Mirza (the deceased). The original Defendant Nos.2 to 4
(Respondent Nos.4,5 & 6) are Printers/publishers/TV news channel of
India. The prayers of suit are:
“(a) Hold & Declare that adoption of son is not recognized by
Islamic Law.
(b) Hold & Declare that Defendant No.1 is not an adoipted
son of Haji Mastan Mirza.
(c) Hold & Declare that Defendant Nos.2 to 4 (print &
visual media) have no right to portray Defendant No.1 as
adopted son of Haji Mastan Mirza.
(d) Restrain by way of Perpetual injunction the Defendant
No.1 his agents, servants, managers, representatives, etc. and
all person/s claiming through the Defendant No.1 from
portraying the Defendant No.1 as an adopted son of Haji
Mastan Mirza.
(e) Restrain by way of perpetual injunction Defendant Nos.2
to 4, their agents, servants, managers, representatives etc. and
all person/s claiming through them from portraying
Defendant No.1 as adopted son of Haji Mastan Mirza.”
3 As per the Appellant, on 27.9.1989 the deceased Haji Mastan
Mirza founded a political party namely All India Dalit Muslim Suraksha
Mahasangh. The party got registered with Election Commission of India,
on 19.5.1992 changed its name to Bharatiya Minorities Suraksha
Mahasangh. The appellant was very close to the deceased. He called and
treated the Appellant as his son. The deceased had no son. This fact was
known to the friends, relative and associates. As per the Appellant, he was
orally adopted by the deceased. On 11.6.1992, the Appellant got married;
all the invitees were invited by the deceased. On 24.6.1994, the deceased
expired, leaving behind daughters-Respondent Nos.1 to 4. All his final
rites were performed by the Appellant as his son.
4 The Appellant has acquired a tenanted office premises, shop
no.3 Arcadia Building, Sir JJ Road, Mumbai and paid money for the same.
However, he had obtained the rent receipt in the name of the deceased. In
the year 2006, Respondent No.1 and her husband had been visiting the
party office and trying to usurp the office, as Appellant had been
conducting the party activity from the office. In October 2006, the
Appellant filed a declaratory suit being Suit No.2253 of 2006 in the Small
Causes Court, Mumbai wherein the Small Causes Court had granted an
injunction against Respondent No.1.
5 On 25.6.2007, Respondent No.1 alongwith many unknown
person visited the party office to claim the party office. She had wrongly
declared herself to president of party. On 8.10.2010, Respondent Nos.1 to 4
filed a suit in the Bombay City Civil Court against the Appellant seeking
permanent injunction against the Appellant, from portraying himself to be
adopted son of the deceased. Respondent Nos.1 to 4 taken out Motion in
the suit. On 10.3.2011, the Appellant filed its reply to the motion. On
5.8.2011, the Respondents filed the rejoinder. On 3.10.2012, the learned
Judge of City Civil Court passed above impugned order.
6 The law with regard to the adoption by Muslim and/or under
the Mohammedan Law, as contended by the learned counsel appearing for
the Plaintiffs based upon the judgment so referred and relied is that the
concept of adoption has not been statutorily recognized in India amongst
Muslim community. It is certainly recognized amongst the Hindu
community. The Madras High Court, in S. Mala Vs. Commissioner of
Police, Trichy1 has observed as under:
1 LAWS(MAD)-2012-1-270, MADLJ-2012-3-553
“The question as to whether a Muslim can adopt any person
and it is legally permissible or not, was considered by the
Division Bench of Allahabad High Court in a decision in the
case of Mohd. Atiq Khan V. Union of India and others
2003(3) AWC 1818 (Justice Markandey Katju, as he then was,
and Justice Prakash Krishna). The Division Bench relied on
the Full Bench decision of the Allahabad High Court reported
the case of Muhammad Allahdad Khan V. Muhammad Ismail
Khan, (1888) ILR 10 All 290 wherein it was held that among
the muslims, the doctrine of acknowledgment of paternity is
available and there is no question of adoption in muslim law.
The Division Bench also relied on the view expressed in
Mulla's muslim law vide Chapter XVII and the principles of
Mohammedan Law by Amir Ali vide Part II Chapter I.
In an unreported judgment of the Karnataka High Court,
made in R.S.A. No.2262 of 2005 dated 26.10.2009, the
question regarding adoption among muslims was considered,
in which the Karnataka High Court held that adoption by a
person who is a muslim, cannot be pleaded as there is no
concept of adoption known to muslim law.
7 The Patna High Court, in Md Amin Vs. State of Bihar2 has
recorded as under:
“In the principles of Mahomedan Law by M. Hidayatullah
(N.M.Tripathi Pvt.Ltd.) 1990 under Section 347, it is
specifically mentioned that the Mahomedan law does not
recognize adoption as a mode of filiation. Tahir Mahmood in
his book, “the muslim Law of India, 3rd Edition page 137 “has
mentioned”. The various kinds of sons other than sons by birth
are are wholly unknown to muslim Law. So, a person can be
the child of the woman who has given birth to that person and
of the man who has or is believed or legally recognized to
have begotten that person 12½ and none else”.
In view of the above, the claim of the petitioner to be
appointed on compassionate ground has rightly been rejected
by the impugned order as he would not have claimed such
appointment on the plea that he was the adopted son of the
deceased constable late Md. Kasim as the Mahomedan Law
does not recognize adoption as a mode of sonship and under
the muslim Law the adoption does not create a parent and
child relationship.”
8 The Appellant, however, relied upon a judgment based upon
Muslim Personal Law (Shariat) Application Act 1937 in Moulvi
Mohammed Vs. S. Mohaboob Begumgu3 where it is observed as under:
“We find that Clause (b) of Section 16 of the Madras Act III of
1873 contemplates that any custom having the force of law
and governing the parties or property concerning shall form
the rule of decision in respect of subjects enumerated in the
main part of the section unless such custom has; by legislative
enactment, been altered or abolished. We find that adoption is
not of, the matters dealt with in the main part of S 16 of
Madras Act III of 1873. The nonmention of other 'subjects
such as adoption in respect of which a valid custom could
given and binding on the parties does not mean that it is not
permissible for the parties to rely on such a valid custom, if
there be one. Section 6 of the Shariat Act- repealed S. 16 of
Madras Act III of 1873, in so far as it is inconsistent with the
provisions of the Shariat Act. This repeal is of no significance
at all for the purpose of this case firstly because Section 16 of
the Madras Act III of 1873 has not specifically referred to
adoption, as one of the subjects, for a decision regarding
which custom shall form the rule. Secondly, even otherwise,
in Section 2 of the Shariat Act, adoption is not one of the
enumerated subjects, regarding which custom or usage is ruled
out. Even if the matter, has been brought within the purview of
Section 2 of the Shariat Act, by virtue of a declarator under
Section 3(1) thereof- in the instant case, there is no such
declaration – there will not be any inconsistency between the
3 AIR 1984 Mad 7, (1983) IIMLJ 357)
provisions. Hence, in the absence of any exclusion or ruling
out of custom, relating to adoption under the Shariat Act, in
the instances, it is possible to plead and prove such a custom
or usage having, the force of law in the locate and amongst the
concerned parties. In this context I feel obliged to adopt the
ratio of the Bench in Puthiya Purayil Abdurahiman V. T.K.
Avoomma AIR 1956 Mad 244 that the Shariat Act did not in
terms, totally abrogate custom and usage in respect of matters
other than those enumerated in Sections 2 and 3(1) thereonf.
If this is the basis to be taken for the purpose deciding
the question as to whether the respondent could come on
record as the legal representative of the deceased Zaina Bi on
the ground that she is her adopted daughter, then the question
that would arise for consideration are: (I) whether there is a
custom or usage having the force of law, which recognizes
such adoption in the locate and amongst the parties concerned;
(ii) whether the respondent has proved such a custom or usage
and further the factum of adsorption in accordance with
custom or usage; (iii) whether, as the adopted daughter of the
deceased Zaina Bi, the respondent could be countenanced as
her legal representative in law for purpose of of the present lis.
It is needless to point out that custom must be ancient and the
burden of proof lies upon the party who sets up the custom.
The custom to bold good in law must be reasonable and the
majority at least of any given class of persons must look upon
it as binding and it must be established by a series of well
known, concordant and on the whole continuous instances. It
is true that the respondent has placed some evidence before
the Court below on the question of custom and the factum of
adoption as per the custom. But, as rightly pointed out by Mr.
S.M. Amjad Nainar, learned counsel for the petitioners, the
evidence is from satisfactory and cannot, by itself, bring any
conviction to the mind of this Court.
The Court therefore needs to consider this issue of “adoption
in Mohammedan Law” in trial
9 Both the learned counsel have cited various judgment dealing
with the aspect of grant of interim mandatory relief/injunction which
resulted into grant of final relief of the suit itself. These judgment are (1)
Gujarat Bottling Co.Ltd. Vs. Coca Cola Co.4 (2) Colgate Palmolive (India)
Ltd. Vs. Hindustan Lever Ltd.5, (3) Seema Arshad Zaheer Vs. Municipal
Corpn of Gr. Mumbai6, (4) Zenit Mataplast Private Limited Vs. State of
Maharashtra7, (5) Home Care Retail Marts Private Limited Vs. New Era
Fabrics Limited8, (6) Deoraj Vs. State of Maharashtra9, (7) Biju Ramesh
Vs. J.P. Vijayakumar10,
10 (a) The basic provisions of grant of injunction including adinterim
and/or imperative flow from the provisions of Code of Civil
Procedure (CPC) Order 39 Rule 1 to 8 or 40 and Section 151. The other
provisions of Specific Reliefs Act, 1963, especially Section 34 to … 41(b)
and 42. The court, if case is made out, even can grant temporary injunction
in exercise of its inherent power as contemplated under Section 151 of
CPC if case is not covered under Order 39 and/or other provisions of the
4 (1995) 5 SCC 545
5 (1999) 7 SCCC 1
6 (2006) 5 SCC 282
7 (2009) 10 SCC 388
8 (2009) 17 SCC 429
9 (2004) 4 SCC 697
1 0 AIR 2005 Kerala 196
Specific Reliefs Act, but it cannot be against the law.
(b) The Court can grant the interim temporary injunction unless it
is in aid and auxiliary to the main/final relief that may be granted, but in a
given case, an ad-interim temporary relief may be required to be granted
exparte till the other side appears and contest the same. The Court, after
hearing the parties, even change and/or vary and/or modify the ad-interim
and/or temporary relief, so granted. Principally, if no relief can be granted
in terms of main prayers, there is no question of granting even a temporary
relief on same terms. However, the Court needs to exercise the discretion
juridically.
(c) Ad-interim and/or temporary relief, unless exceptional case is
made out, cannot be granted having effect of granting final relief at adinterim
and/or interim stage. However, there is no total bar if exceptional
circumstances are made out and though the case does not fall within the
ambit of Order 39 and/or other provisions of Specific Reliefs Act, to pass
such protective and/or interim injunction relief, but certainly cannot be
against the expressed and/or implied statutory provisions of law and
against the public policy.
(d) The principles of natural justice, equity, and fair play are also
important factors apart from inherent power, the Court may invoke while
passing any such ad-interim and/or interim relief pending the main/final
relief.
(e) An ad-interim relief and/or mandatory ad-interim relief
therefore can also be passed/granted by the Court to maintain status-quo
ante so that appropriate final relief can be granted by modifying and/or
molding the same, basically to protect the interest of the parties and the
properties pending the trial of the suit.
(f) The Court cannot restrain by prohibition and/or injunction any
party not to initiate and/or institute and prosecute any proceedings in Court
of law in normal circumstances.
(g) The judicial exercise of discretion of the Court required to be
exercised within the framework of law and the record and the same should
be on the foundation of (i) “a prima facie case”, (ii) “the balance of
convenience”, (iii) “an irreparable injury” and iv) “equity”. The purpose is
always to protect the Plaintiffs/aggrieved parties' legal and alleged/existed
rights against the alleged violation and/or injury by other party and which
could not be compensated in damages.
(h) The vague, uncertain and/or false and/or misrepresentation
and related averments need to be taken note of in the context of
corresponding and similar right and entitlement of the other party and/or
the Defendants. The interest/right of other party therefore also required to
checked into and protected and at least need to be taken into consideration
till the same are resolved in favour of either of the parties at the
appropriate proceedings.
(i) The prohibition and/or injunction and/or such interim
protection/relief based upon the doctrine of equitable fair and unfair
conduct of the parties invoking the jurisdiction of the Court, are also
relevant factors. The conduct of the parties must be fair and honest, not
even at the time of invoking the Court's jurisdiction for granting of such
relief but also at the time of applying for modification and/or verification
and/or vacating the ad-interim and/or temporary injunction
(j) The Court is also not bound to grant interim protection/relief
in every case and/or to enforce the negative covenant based upon the facts
and circumstances of the case including the contractual terms between the
parties. The Court also requires to consider before passing the reasoned
order apart from material placed on record, the aspect of the compensation
and/or damages. Plaintiff's uncertain allegations, apart from fraud and/or
misrepresentation, itself dis-entitled him to continue with the order of adinterim
injunction and/or restrainment order or though temporarily as it
would cause irreparable, uncompensatable damages and/or compensation.
The law permits the Court to insist and/or require the Plaintiffs to furnish
an undertaking and or the security so that the Defendant/other side
adequately compensated, if order and/or trial goes against the party one
who sought interlocutory injunction and order of drastic nature. Such
interim order and/or such order should be reasonable and fair having
foundation of record and the law.
(k) The subject and object of the particular provision and/or
statute and the rights and/or entitlement so invoked and its related aspects,
custom, usage and practice at national and/or international level. For
example, if case/reliefs sought by the Plaintiffs/Petitioners by invoking the
provisions of Intellectual Properties Laws and the arbitration laws the
scheme purpose and object of the Act/reliefs/customs/practice apart from
authorities and case laws, are always play material role for the Court
before passing and/or exercising discretion in granting and/or refusing to
grant the injunction and/or protective relief, specially when both the parties
appear and make their case/submissions based upon the supporting
material placed on record.
(l) Any injunction and/or order specially in India, in view of
Section 27 of Indian Contract Act, is also important element in litigations
based upon the commercial contract or otherwise.
(m) The aspect of interest of public at large and not only the
interest of individual, who may be compensated in terms of money, if case
is made out, is also one of the relevant factor.
(n) At the ad-interim stage the Court, based upon the averments
and material so placed and if case is made for an ad-interim urgent relief,
based upon the averments and the documents, but after satisfying himself
by exercising the discretion judicially, an arguable and/or prima facie case
is made out, may pass appropriate order in the interest of justice, though
temporarily, till other side appears and points out his case. The Court
required to consider the rival contentions of the parties at the earliest.
(o) A prima facie case itself is not the sole element. The balance
of convenience and/or inconvenience and/or equity, in a given case, are
also relevant factors. Even if these elements are there and/or made out, the
conduct of the parties is also relevant factor. The Court still needs to
consider the aspect of delay and latches in invoking such equitable
jurisdiction of the Court. The third person's rights or interest if any created,
for whatsoever may be the reason, the party who invoked Court
jurisdiction to grant interim and/or protective relief to avoid injury
personal injury and the injury to the property, just cannot be overlooked.
The injunction and/or interim order, if any, granted and/or ordered, the
opposite party/person must be in a position to comply with the same. The
timely action including the communication of such order is important to
give effect to the order.
(p) The Court may not pass impractical and/or unexecutable
and/or infructuous and/or academic orders. Interim order should be fruitful,
effective and enforceable in law.
(q) The person or party against whom the injunction and/or
interim relief sought must be joined as a party to the proceedings. The
Court should not pass any order against the third persons and parties who
are not parties to the proceedings, unless exceptional case is made out and
to avoid immediate loss and/or injury to the person and/or the property.
The fair and full opportunity, required to be given against whom the
Plaintiff seeks interim and/or ad-interim relief specially when the dispute is
between two private parties and/or person. In case the public interest
litigation and/or where the public at large are involved, the Court may pass
appropriate order/relief in the interest of public at large.
(r) The Court in case of urgency may not be in a position to judge
the merits of the case of the respective parties for want of detail averments
and/or material. But once satisfied, by giving short notice or sufficient
notice, an ad-interim relief may be granted. If case is made out by the
Plaintiffs that there is a serious issue required to be decided and if the
Defendants were not restrained, the compensation/damages would be
inadequate and/or there would be irreparable injury and hardship which
cannot be compensated in terms of money. The concept of arguable issue
and/or tribal issue including of aspect of Court's jurisdiction and as
contemplated under Section 9A of CPC, is also relevant factor, but the
Court is not prevented from passing ad-interim relief pending the decision
of the Court jurisdiction issue. The issue of jurisdiction if decided already,
in view of judgment of the higher Courts and/or the provisions of
law/statutory provisions are clear, which prohibits and/or debar the Court
from entertaining any civil suit proceedings in view of specific provisions
and mechanism provided under the Specific Law/statute, the Court in such
situation may refuse and/or entertain such interim injunction application.
Even if granted such relief, the Court is under obligation to decide and/or
dispose of the issue of Court jurisdiction at earliest to avoid further
complication, apart from further loss of time and money of everybody. The
Court must decide the preliminary issue of jurisdiction by passing order on
the application filed by the parties at earliest or even otherwise.
(s) Assessing relative strength of the parties is important so also
above principle of law while passing equitable relief. The court definitely
may modify or vary the order, if case is made out. No final expression
and/or opinion on merits of the matter is necessary, but it cannot be
overlooked while even passing any ad-interim order. All facets of law
include and cover the reasonable and judicial exercise of discretional
power by the Court. The Court cannot ignore the strength of either of the
parties submissions though no fixed Rule or formula can be announced for
grant of any interim relief and/or injunction. The facts and circumstances
of each case should be the foundation before passing any interim order
apart from principles of law of injunction and/or prohibition as noted
above.
(t) In a given case, the Court may pass appropriate interlocutory
injunction to mitigate the risk of injustice for a certain period and or till the
decision of the dispute so raised. However, the Court proceedings cannot
be permitted to be used and utilised for and by the unscrupulous and/or
defaulters and/or persons who play fraud and/or who invoked the Court
jurisdiction by intentionally suppressing material facts and documents. In a
given case though all ingredients are available, but on the ground of fraud
and/or misrepresentation the Court may refuse to entertain and/or grant any
equitable urgent relief.
(u) The aspect of injunction and/or prohibitory order by crossing
national and/or international jurisdiction or borders has different facets, but
above principles are relevant even for granting and/or passing injunction
and/or prohibition order against the party beyond the Court's jurisdiction
and/or beyond the control.
(v) The Court must not act arbitrarily, capriciously order
perversely. The court must exercise discretion judicially within the
framework of law and the record.
(w) Such interim relief/protection, even required to be granted for
and/or against the persons who are invoking the Court's jurisdiction being
a defaulter of any kind and/or unauthorized occupier of any premises
and/or trespasser or occupants of an unauthorised structure of private
and/or the government or statutory body land and/or the footpath. The
specific provisions of law which debars the Court from entertaining such
suits, are also important factors, before granting an injunction so sought
for. The Court/Tribunal, therefore, in such matter requires to exercise
jurisdiction in accordance with law and pass order by giving an
opportunity to all the concerned, even considering the aspect of delay,
latches and interest of public at large, and not only the interest of such
individuals.
(x) The mini trial may not be necessary at the stage of grant of
temporary injunction, but the above principles just cannot be overlooked
while passing the order-interim and/or protective order based upon various
uncertain and certain situations to meet the ends of justice. The Court need
to strike balance between the extreme positions as averred considering all
the pros and cons of the case in a given set of facts by speaking reasoned
order.
11) Admittedly, there are litigations pending between the parties
though not directly on the adoption but related to the tenancy and the
property rights of the deceased. There is no serious issue that the
Appellant had long association with the deceased since childhood. They
had good and cordial relationship, apart from the material to justify treated
like son since 1983/1989/1992. The Appellant's own case is that the
deceased referred and treated him like his son and had “orally adopted me
as his son and had been since treating me as his own son”. The name was
also changed announced as “Suleman Mirza”. The Respondents-Plaintiffs
and the concerned community are fully aware of this. Admittedly, the
Appellant not converted to the Islamic religion till this date. In the political
arena, the Appellant has been closely known and associated with the
political party. The adoption and/or no adoption is not relevant, so far as
the leaving in the society as treated son, the community and being the
leader and/or the active member of the political property and/or even with
the close associations. There are ample material on record including the
averments of the parties about such good relationship of the Appellant with
the deceased and the family members. The earlier relationship and
specially during the life time of the deceased, the recognition and/or the
treatment so given to the Appellant by all, just cannot be overlooked as
relevant factor for considering the case of the Respondents-original
plaintiffs and/or the defence of the Appellant.
12 There is even no denial to the fact of last “Chaliswan rites” as
per the Islamic Law, preferred by the Appellant when the deceased died on
25 June 1994 being the only treated son. No objection was raised at any
time by the Plaintiffs and/or other relatives, of this nature, during the life
time of the deceased and even on the death and thereafter till the date of
the alleged cause of action in the year 2007-2008 and 2010. There is no
serious denial to the facts of religious rites at the death anniversary of the
deceased every year “Fateha” and all related rituals and published material
by him. There is also ample material to show that the Appellant tried to
help and assist the other family members/daughters of the deceased in
various criminal and the civil litigations. No objection even at that time
was raised by any one. The Plaintiffs and other relatives recorded and
accepted even in writing that the Appellant is the close and confident
person and even recorded in MOU dated 27 May 2005 in other
proceedings. The Appellant, in fact, averred that he is not interested in the
property of the deceased “my godfather”. The main dispute arose when the
Plaintiffs and the others related tried to enter into the party office which is
the subject matter of the other pending litigation. The Appellant averred to
place on record the supporting material to show that the deceased had
declared and announced as his son. All these matters are matter of trial and
detailed inquiry.
13 The question still remains if “Adoption” which is not
permissible under the Islamic Law as per the Plaintiffs-Respondents, which
is denied by the Appellant by referring to the Judgment so recorded above,
the Court required to consider this basic aspect at this prima facie stage, in
view of the facts and circumstances of the case, apart from the Islamic law,
as well as, the law of injunction as read and referred by the parties.
14 There is no direct material and/or evidence placed on record
by the Appellant to show that he was adopted by the deceased by following
any particular Islamic custom and/or usage. As per the Islamic law, except
the alleged custom of particular community, the “adoption of son” is not
recognized. The burden, therefore, is lies upon the Appellant to prove the
same. The Appellant's own case, as per the averments itself, that the
deceased declared and/or announced orally and treated him as “adopted
son” and/or treated him like his son. The treating any person like son
and/or daughter even though having close relationship and association, that
itself is not sufficient to treat the son and/or daughter unless recognized
and/or validly proved under the Islamic Law to be the “adopted son” by
“the deceased and/or any Islamic person”. But, at the same stroke, in the
present facts and circumstances, and in view of above undisputed position
on record that the Appellant had been treated like his son from his
childhood, just cannot be overlooked specially when there was no
objection of any kind raised by the Respondents-Plaintiffs during the life
time of the deceased and/or even thereafter till the alleged cause of action
arose.
15 The meaning of “adoption”/ “adopt” is defined in the various
English Dictionaries, is as under:-
a) Concise Oxford English Dictionary (Indian Edition)
(Eleventh Edition, Revised)
“Adopt”- (1) legally take (another's child) and bring it
up as one's own ….........
b) Wharton's Law Lexicon, with exhaustive reference
to Indian Case Law (Fifteenth Edition) Universal
Law Publishing Co. Pvt. Ltd.
“Adoption”- an act by which a person adopts as his
own the child of another. Until recently there was no
law of adoption in this country though it exists in other
countries, as France and Germany, where the civil law
(as to which, see Sand. Just.) prevails to any great
extent. In 1889 and 1890, Lord Meath introduced Bills
in the House of Lords to legalize adoption.
c) K.J. Aiyar's Judicial Dictionary, (Eleventh Edition),
The Law Book Company (P) Ltd.
“Adoption”- It is the legalised recognition of a person
as one's son. According to the Hindu notions, a son is
necessary to a person not only to continue the lineage
but to offer oblation to the means or the ancestors to
the fourth degree. The soul of a person dying issueless
will not be saved. So this institution has been founded
on the Hindu law. The person adopted has all the
privileges of a natural born son except that there is a
lessening in the share of property different according
to the various schools of Hindu law, if a natural son is
born subsequent to the adoption. Certain ceremonies
are necessary for adoption. There are five kinds of
adopted sons of which Dattaka and Kritrima are the
two forms ordinarily found in India.”
16 The prayers are made by the Plaintiffs against the Appellant
and thereby prayed for injunction, as recorded above. The Islamic Law if
nowhere permitted and/or recognized that any person can be declared
“adopted son” unless duly proved by the custom as alleged. The claim
and/or related entitlement in the Society and/or community merely
because, some paper publications are made and/or done and/or such
publicity was given in the multi-media including papers, that itself is not
sufficient to deny the Appellant's claim of being treated like son by the
deceased. The Appellant himself had claiming and averred that he was
“orally adopted” by the deceased. There is no bar and/or restriction
whatsoever, under any law which prevent anyone, the adult and/or the
minor and/or the major to have such a relationship of father and/or mother
and/or son and/or daughter and/or brother. There is no claim of property of
the deceased by the Appellant on the basis of “adopted son”, the
prohibition so raised and/or averred in the background of the matter, is not
acceptable to grant the relief so sought in such fashion in such subsequent
suit. The balance needs to be struck, specifically at the instance of the
Respondents-original plaintiffs, who never objected for such statement
and/or publicity given by the deceased when he was alive by treating the
Appellant as his son. The delay and the latches on the part of the Plaintiffs
in this background are also another factor, which just cannot be overlooked
at the time of passing of such type of final reliefs at this stage of the suit.
The balance of convenience, equality and irreparable injury, if any, are
again the matter which required to be noted by the Court while passing the
order. Any order, even if passed by the Court, must be executable and
enforceable.
17 In the Mohammedan Law the “adopted son” if is not
recognized unless proved in view of customs if any and in the present case
when Defendant No.1 himself averred that he is orally adopted son and he
he has no interest in the property and/or demand in the properties of the
deceased the declaration so sought required to be considered in a due trial.
But at this stage itself no such order can be passed as done in the matter.
The long relationship and the close association as recorded in the society
and the community, by and between the Appellant with the deceased just
cannot be overlooked. The word “adoption” as averred itself not sufficient
to deny the claim of the Appellant.
18 Defendant Nos.2 to 4 are the print and visual media persons.
Such injunction only against them could not serve the purpose even
otherwise. Merely because averments are made that itself, in my view, is
not sufficient to pass order against Defendants Nos.2 to 4 as the averments
and also the material on record show that the deceased Haji Mastan Mirza
treated Defendant No.1-Appellant as his son since so many years and all
the parties including Plaintiffs have full knowledge of the same since long
and so also the concerned community and the political party in question.
Therefore, the injunction so granted, in my view, is required to be set aside.
However, it in no way means to state that Defendant No.1 treat himself as
adopted son under the law. That this modification means he may be treated
like his son which no one can prevent as there was no objection at relevant
time when the deceased was alive and even thereafter and so also in the
community as well as political party. This also means that Defendant No.1
in no way at this stage entitle to claim any right and/or interest in the
properties of the deceased as alleged legal adopted son unless adoption is
proved. In view of above reasons there is no question of granting
injunction against Defendant No.1 and/or his agents or his servants and/or
managers and representatives from portraying Defendant No.1 as treated
like son and/or closed association with the deceased, at this stage of the
proceedings and after so many years. The delay, elements of latches,
conduct, equity, balance of convenience, irreparable injury and prima facie
case goes against the Plaintiffs but support the case of the Appellant.
19 The words “adopted son” is result of apprehension of the
Plaintiffs, in view of the proceedings so initiated and as recorded. The use
of this word itself is not sufficient to deny the existence of long
relationship between Defendant No.1 and the deceased. Therefore, I am
inclined to interfere with the order. The impugned order dated is quashed
and set aside. The Notice of Motion is dismissed. However, it is made clear
that Defendant No.1, pending the suit, is not entitle to claim any right or
interest in the properties of the deceased as a adopted son but entitle to
claim the rights and interest in other capacity. It is also made clear that
these observations are only for deciding the present Appeal from Order.
The learned Trial Judge to decide the matter uninfluenced by the
observations so made in accordance with law. The averment raised in other
proceedings need to be treated in accordance with law uninfluenced by
above directions. No costs.
20 The learned Counsel appearing for the Defendants seeks stay
of the order so passed today in Court. Considering the reasons so given, I
am declined to grant stay. The request is rejected accordingly.
(ANOOP V. MOHTA, J.)
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