2013 Supreme(Bom) 2291

High Court of Judicature at Bombay
ANOOP V. MOHTA, J.
Sunder Shaekhar
Versus
Shamshad Abdul Wahid Supariwala & Others
Appeal From Order No. 948 of 2013 With Civil Application No.1201 of 2013
Decided on : 20-11-2013

Headnote:Civil Procedure Code, 1908 - Order XXXIX, Rule 1 - Specific Relief Act, 1963, Section 34 - Grant of Temporary Injunction. - In view of close association of defendant with deceased, a Muslim, since long time not denied by plaintiffs, defendant cannot be restrained from portraying himself as "treated like son" of deceased. - 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.

       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.

       Merely because averments are made that itself, 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 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, 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.

       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, Court is 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 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.