Dismissed

Budhi @ Budhadev Maharana v. Bhikari Moharana

Orissa HC21 Feb 2023CMP/18/2023

Case brief

AI extract

What is this about?

CMP challenging Civil Judge Order allowing substitution of deceased defendant based on registered deed of adoption. Court held registered deed creates presumption of correctness under Hindu law, barring Class II heirs, and dismissed the challenge.

What did the court decide?

CMP dismissed finding no infirmity in impugned order allowing substitution of deceased defendant by adopted son.

Budhi @ Budhadev Maharana Vs Bhikari Moharana — Succession and Inheritance | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 18 OF 2023

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Budhi @ Budhadev Maharana …. Petitioner Mr. J. Bhuyan, Advocate

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-versus-

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Bhikari Moharana and others

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…. Opp. Parties

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

21.02.2023

This matter is taken up through hybrid mode.

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Order dated 17^th November, 2022 (Annexure-7) passed by learned Senior Civil Judge, Khurda in C.S. No.11 of 2020 is under challenge in this CMP, whereby an application under Order XXII Rule 4 C.P.C. for substitution of deceased Defendant Nos.1 and 4 has been partly allowed.

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Mr. Bhuyan, learned counsel for the Petitioner submits that during pendency of the suit, Defendant No.1, namely, Arakhita Moharana and Defendant No.4, namely, Khaliswar Moharana died leaving behind their legal heirs. Accordingly, an application under Order XXII Rule 4 C.P.C. was filed along with the petition for setting aside abatement and condonation of delay in filing the petition for substitution. The Plaintiff-Petitioner does not have any objection in allowing the substitution of Defendant No.1. But in the petition, the Plaintiff-Petitioner has categorically stated that Defendant No.4, namely, Khaliswar Moharana died leaving behind his nephew, namely, Brajesh Dulal and niece,

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namely, Harapriya Maharana, as his legal heirs. Defendant Nos.3, 5 and 9 filed objection to the same stating that Defendant No.4 has an adopted son, namely, Sri Amit Prasad Moharana, who is still alive. Hence, he should be substituted in place of deceased Defendant No.4. In support of their case, they filed registered deed of adoption bearing No.340 dated 22^nd January, 2020 along with legal heir certificate issued by the Tahasildar, Begunia. Learned trial Court without making any enquiry, as provided under Order XXII Rule 5 C.P.C., accepted the plea of Defendant Nos.3, 5 and 9 and allowed deceased Defendant No.4 to be substituted by said Sri Amit Prasad Moharana without entertaining the prayer of the Petitioner to implead Brajesh Dulal and Harapriya Maharana as his legal heirs of Defendant No.4.

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It is his submission that the registered deed of adoption had never seen the light of the day before it was filed along with the objection. The objection filed was also not supported by any affidavit. When there is a serious dispute with regard to legal heirship of deceased Defendant No.4, learned trial Court ought to have made an enquiry under Order XXII Rule 5 C.P.C.. In support of his case, he relied upon a decision in the case of Krushna Ch. Pati –v- Basanta Panigrahi and others, reported in 2016 (I) OLR 555, wherein the dispute was with regard to adoption made by the deceased therein. This Court discussing the matter, held that when there is a dispute with regard to adoption of the Petitioner (therein), learned trial Court ought to have resorted to an enquiry under Order XXII Rule 5 C.P.C. to find out the truth. He, therefore, submits that the impugned order under

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Annexure-7 is not sustainable, as procedure of law provided under the C.P.C. has not been followed. He, therefore, prays for setting aside the impugned order under Annexure-7 in respect of substitution of deceased Defendant No.4 and remit the matter back to learned trial Court to make an enquiry under Order XXII Rule 5 C.P.C.

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Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it is apparent that the Defendant Nos.3, 5 and 9 in their objection have stated that Defendant No.4 died leaving behind his adopted son, namely, Sri Amit Prasad Moharana. In support of the adoption, they also filed registered deed of adoption No.340 dated 22^nd January, 2020. Although Mr. Bhuyan, learned counsel for the Petitioner submits that there is a suspicion in the said deed of adoption, but presumption of correctness is attached to the said registered deed of adoption in view of Section 16 of the Hindu Adoptions and Maintenance Act, 1956. The presumption of correctness is valid till it is disproved. There is no material on record to show that registered deed of adoption No.340 dated 22^nd January, 2020 has been held to be invalid. Further Defendant Nos.3, 5 and 9 have filed legal heirs certificate of deceased Defendant No.4 issued by the Tahasildar, Begunia, which also discloses that Sri Amit Prasad Moharana is the legal heir of deceased Defendant No.4. When there is a prima facie material of adoption of Sri Amit Prasad Moharana by deceased Defendant No.4 available on record, Class II legal heirs, namely, Brajesh Dulal and Harapriya

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Maharana cannot be substituted in place of deceased Defendant No.4, as rightly held by learned trial Court.

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Mr. Bhuyan, learned counsel for the Petitioner, at this stage submits that an issue with regard to correctness of adoption should be framed by learned trial Court, when it is seriously disputed by the Plaintiff. Thus, this Court does not express any opinion on the merit of the said submission, as the same is not the subject matter of dispute in this CMP.

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In view of the discussion made above, I find no infirmity in the impugned order under Annexure-7.

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Accordingly, the CMP being devoid of any merit stands dismissed.

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Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge

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Budhi @ Budhadev Maharana v. Bhikari Moharana

Case brief

What is this about?

What did the court decide?

Budhi @ Budhadev Maharana v. Bhikari Moharana

Case brief

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