Srinagar: The High Court of J&K and Ladakh on Thursday held that an aggrieved party cannot pursue two remedies simultaneously.
The court said this while dismissing a petition with regard to controversy regarding mutation of land left by an issueless couple long back.
The petitioner, Badri Nath, asserts his right to the land on the ground of being a nearest “agnate” entitled to claim inheritance under the principles of Hindu Law, while as one Santosh Kumari stakes her claim to the property being an adopted daughter of the deceased, Anand Ram and his wife Prabawati.
The petitioner, the court said, may have to work out his remedy as may be permissible in law, but surely he is not permitted to simultaneously pursue another remedy before the High Court under Article 226 of the Constitution.
“Looking to the dispute from slightly different angle, the adoption deed, which is subject matter of challenge before the Civil Court ….when read in its entirety, may not be a deed effecting any adoption, but it surely is a declaration by Anand Ram that after his death, his entire property would be inherited by respondent No.7 (adopted daughter) and, therefore, could possibly be taken as his last will,” Justice Dhar said, adding, “I am not holding so, nor the same is required for the purpose of disposal of this petition”. Otherwise also, the court said, giving any opinion by it about the document dated 19.01.1967 (adoption deed) is likely to prejudice the case of the parties pending before the Civil Court.
The bench left it to the competent Court of jurisdiction to determine all these questions. “It would be sufficient to say that the question, as to whether the adoption in the instant case has taken place prior to or after the promulgation of the Jammu and Kashmir Hindu Adoptions and
The Maintenance Act, 1960, is a disputed question of fact, to be determined by the competent Court of jurisdiction empowered to take evidence and decide such a question after holding a full fledged trial,” court said.
The court also observed that it was trite law that prior to promulgation of the Act of 1960, no adoption of a female child was permissible in the erstwhile State of Jammu and Kashmir under the ancient Hindu law, unless such adoption had the sanction of local tribal or family custom. “Needless to say that the onus to prove that such custom permitting the adoption of a female child in any local area, tribe or family, is always on a person who alleges it or sets up a claim on the basis thereof,” Justice dhar said, adding, “I am not going much deep into this question as anything said about the adoption of respondent No. 7 by the deceased estate holder Anand Ram may prejudice the case of the parties before the Civil Court.”