The importance of protecting the property during the pendency of the trial and refraining from making final determinations on adoption and probative value of documents at the temporary injunction stage.

R.S. Chauhan, J.-The defendant-appellant has challenged the order dated 18.02.2003 passed by the Addl. District Judge No. 1, Alwar, whereby the learned Judge had allowed the application of the plaintiff -respondent under Order 39 Rule 1 and 2 read with Section 151 CPC, and had restrained the appellant from transferring the undivided half share of the plaintiff in the properties of Shri Deendayal Rustagi during the pendency of the suit.

2. The brief facts of the case are that the plaintiff -respondent (henceforth to be referred to as `the respondent` for short) filed a suit for partition, rendition of accounts and permanent injunction alongwith an application under Order 39 Rule 1 and 2 read with Section 151 CPC, in the plaint he claimed that he is the adopted son of late Shri Deendayal Rustagi and of his first wife Smt. Kamla. Smt. Kamla expired on 01.07.1977. Thereafter Shri Deendayal Rustagi married present appellant before us, Smt. Krishna Rustagi. He further stated that since there was no issue of Shri Deendayal from Smt. Kamla despite marriage of eighteen years and since the respondent was the son of Deendayals sister Smt. Vidya Devi, after the death of Smt. Vidya Devi, he was brought up by Shri Deendayal and Smt. Kamla Devi. Since he lived with them for a long time, a natual love and affection developed between the couple and the child. Subsequently, on 111.1971 Shri Deendayal adopted the respondent with the consent of his wife, Smt. Kamla. According to the respondent although he was above 15 years of age at the time of adoption, but according to the custom of his community, child above the said age can be adopted. The respondent was given into adoption by his biological father Shri Bhagwan Das. He further stated that after the said adoption the Life Insurance Policy, his driving licence, his residence certificate, his post-office saving bank account and a Smarika issued by Rustagi Sabha, Alwar, all showed Shri Deendayal Rustagi as his father. He further claimed that as the adopted son he had performed the last rites of Shri Deendayal on 20.08.1997 and had published the notice about "Tiye Ki Baithak" and "Rasm Pagdi". "Rasm Pagdi" in fact took place on 31.08.1997 in the presence of the family members, relatives and the appellant. Moreover, he claimed that Shri Deendayal has left four properties situated in different parts of Alwar. Being the adopted son, he staked his claim to half of the properties so left by his father. Hence, the suit for partition, rendition of accounts and permanent injuction.

3. On the other hand, the appellant in her written statement denied the averments made by the respondent. She claimed that there is no custom in their community for adopting child above the age of 15 years. Moreover, the said adoption was not done with the consent of Smt. Kamla, the then wife of Shri Deendayal. She further alleged that the documents produced by the respondent were created with the intention to deprive her of the properties of Shri Deendayal. She further claimed that Shri Deendeyal, as an Advocate had employed the respondent as a typist. According to her, none of the education certificate of the respondent show Shri Deendayal as his father. After hearing both the parties vide order dated 18.02.2003 the learned Judge granted them temporary injunction as mentioned above. Hence, this appeal before this Court.

4. Mr. Gopal Garg, the learned Counsel for the appellant, has vehemently raised a number of contentions before us. Firstly, that the suit filed by the respondent is not a declaratory suit with regard to the factum of his adoption. Secondly, till he is declared as adoptive son, he cannot claim half of the share in the properties of Shri Deendayal. Thirdly, that the respondent was merely maintained by Shri Deendayal as he was his nephew and had lost his mother. He was also employed as a typist in the office of Shri Deendayal and was paid as such. Fourthly, that none of the educational certificates reve