MANU/MH/1068/2005

Equivalent Citation: AIR2006Bom123, 2006(3)ALLMR38, 2006(2)BomCR254, 2006(3)RCR(Civil)519

Equivalent Citation : AIR 2006 Bom 123

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 380 of 1996

Decided On: 21.12.2005

Appellants: Shri Hanmant Laxman Salunke since deceased by his heirs Smt.
Alka Hanmant Salunke and Ors.)
Vs.
Respondent: Shri Shrirang Narayn Kanse

Hon'ble Judges:
B.H. Marlapalle, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Vinod Y. Jadhav, Adv., i/b., M.V. Sali, Adv.

For Respondents/Defendant: Uday Warunjikar, Adv.

Case Note:
Family - Adoption - Section 11(iv) of Hindu Adoption and Maintenance Act,
1956 - Suit filed by Appellant for declaration that adoption of Respondent by
adoptive mother was illegal and was dismissed by Civil Judge - However,
Appeal filed by Plaintiff before Additional District Judge also dismissed -
Hence, this Appeal - Whether, order passed by Courts below was justified -
Held, findings of Courts below were concurrent that age difference between
adoptive mother and adoptive son was less than 21 years - Whereas Section
11(iv) of the Act mandated that adoptive mother was at least 21 years older
than person to be adopted - Defendant proved factum of adoption and
adoption ceremony by giving adoptive boy by his father to adoptive mother
and her accepting Defendant in adoption - School Leaving Certificate of
Defendant issued by Head Master of Zilla Parishad School stated that his date
of birth was 1st June 1960 - Defendant admitted that adoptive mother was
born on 2nd May 1942 - Lower Appellate Court rightly held that condition of
Section 11(iv) of the Act was breached as age difference between adoptive
mother and Defendant, at the time of adoption, was less than 21 years - Thus,
suit adoption was in breach of condition in Section 11(iv) and was invalid -
Impugned orders passed by Courts below were set aside - Appeal
allowed.Ratio Decidendi"Adoptive mother shall be at least 21 years older than
person to be adopted as per statutory provision."

JUDGMENT

B.H. Marlapalle, J.

1. In this Second Appeal admitted on 6-11-1996, this Court has framed the following
substantial questions of law:

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 (i) It ought to have been held that the adoption in law was invalid and illegal
as the mandatory provisions of Sections 4, 5, 10 and 11 of the Hindu
Adoption Act of 1956 have not been followed and complied with.

(ii) Section 4 has an overriding effect of the Act and even the custom or
usage which formed the part of the law immediately before the
commencement of this Act shall cease to have any effect with respect to any
matter for which provision is made in this Act. Therefore, in this regard both
the Courts have committed a grave error in law in giving effect to the
custom or usage prevailing prior to the coming into force of the 1956 Act.
(iii) In this case the provisions of Section 10(iii) and (iv) have not at all been
complied with. Admittedly, the Respondent was married at the time of
adoption and he had also completed the age of 15 years at that time. (iv)
Further provisions of Section 11(iv) also have not been complied with for
Smt. Parvatibai, who is alleged to have taken the Respondent in adoption is
less than 21 years older than the person to be adopted and this provision is
admittedly not saved by any customs or usage, prevailing prior to or after
coming into force of the Hindu Adoption Act.

2. In short it is the case of the appellant that the adoption of the respondent by Smt.
Parvatibai purportedly taken place on 2-11-1988 was and is illegal on account of the no
fulfillment of the conditions set out in Section 10(iii), Section 10(iv), Section 11(iv) and
Section 11(vi) of the Hindu Adoption and Maintenance Act, 1956 (for short "the Act").

3. The undisputed facts leading to this second appeal are that the appellant is the son
of Laxman Salunke and brother of Shankar Salunke, resident of Borgaon, Taluka and
District Satara. Shankar was married to Parvatibai of village Anagapur on or about
1/3/1961 and he was in service at Aurangabad. Parvatibai left Shankar in a year or two
after her marriage with Shankar and never returned either to Aurangabad or village
Borgaon where the family i.e. the father of the appellant and Shankar had immovable
property. On the contrary Smt. Parvatibai continued to stay at village Anagapur i.e. her
parental / native village. Shankar died on 12/10/1984 at Aurangabad and Parvatibai
was not with him at that time. The appellant's father Laxman also died on 31/5/1985.
Misc. Case No.42 of 1985 filed by Smt. Parvatibai for succession certificate was decided
in her favour on 22/6/1986, whereas Misc. Application No. 277 of 1989 filed by another
lady by name Gandhkala was also for the same purpose i.e. for succession certificate
on the demise of Shankar. The present respondent appeared in the said Misc.
Application No.277 of 1989 and filed his Written Statement contending that he was
taken in adoption by Smt. Parvatibai on 2/11/1988 and since Parvatibai had obtained
succession certificate in Misc. Case No.42 of 1985 as the successor to the movable and
immovable property of late Shankar, Misc. Application No.277 of 1989 could not be
entertained. Parvatibai died in an accident on 6-7-1989 and, therefore, the respondent
filed Misc. Application No.83 of 1990 for obtaining the succession certificate as L.R. of
Smt. Parvatibai and thus entitled to succeed to the movable and immovable property
of Shankar. The present appellant also filed Misc. Application No.166 of 1990 for
heirship certificate claiming the property of late Shankar. All along the appellant was in
possession of the joint family immovable property viz. residential house and
agricultural land in Block No.373. The respondent allegedly obstructed the plaintiff's
possession over the agricultural land on 10-10-1991 and, therefore, the appellant filed
Regular Civil Suit No.589 of 1991 for a declaration that the alleged adoption of the
respondent by Smt. Parvatibai was illegal and void ab-initio. He also prayed for
injunction. This suit was dismissed by the learned 2nd Joint Civil Judge, Junior Division
at Satara on 16-12-1994 and, therefore, the plaintiff filed Regular Civil Appeal No.23 of
1995 which also came to be dismissed by the learned 2nd Additional District Judge at

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Satara on 15-3-1996 and hence this Second Appeal.

4. The trial Court held that the adoption was valid and consequently the legal challenge
to the adoption on account of non-compliance with the requirements of Section 10(iii)
and (iv) as well as Section 11(iv) of the Act did not survive, including the issue
whether ceremony of giving and taking in adoption had actually taken place or not. It
further held that the plaintiff proved his possession over the suit properties as
described in para 4-A, 4-B/1 and 4-B/2 of the plaint. However, the plaintiff's prayer for
directions against the defendant not to withdraw the amounts mentioned in para 4-C of
the plaint was turned down. It considered the evidence of Ramchandra Pujari (DW
No.3) and Vyankatlal (DW No.4) as well as Maruti Atre (DW No.5). DW 3 claimed to
have performed the adoption ceremony on 22-11-1988 by which the defendant was
taken in adoption by Smt. Parvatibai and DW 4 stated that he was a professional
photographer and had clicked photographs at Exhibit 79 of the adoption ceremony held
on 22-11-1988. DW 5 was a witness to the adoption ceremony and stated that at
about 8 a.m. on 22-11-1988 the ceremony of Hom-havan was observed and as a token
of the defendant having been taken in adoption photographs at Exhibit 79 were taken
and he identified the same. However, the said witness admitted in the cross-
examination that the persons seen in the photographs were not known to him and he
had not seen them before the adoption ceremony at any time. He could not give the
names of these persons seen in the photograph. The lower Appellate Court agreed with
the view taken by the trial Court that the factum of adoption was proved and,
therefore, the adoption would be legal and valid even though the age difference
between the adoptive mother and the defendant was less than 21 years and there was
a contravention of the requirements of Section 11(iv) of the Act. The lower Appellate
Court further held that the requirements of Section 10(iii) and (iv) of the Act were
complied with in view of the law laid down by the Full Bench of this Court in the case of
Anirudh Jagdeorao v. Babarao Irbaji, MANU/MH/0588/1983 : AIR 1983 Bom 391 as
well as the decision of the Apex Court in the case of Kondiba Rama Papal v. Narayan
Kondia Papal, MANU/SC/0288/1991 : AIR 1991 SC 1180

5. The learned counsel for the appellant submitted that the Full Bench decision of this
Court in the case of Anirudh (Supra) did not support the case of the defendant and he
relied upon yet another decision of this Court in the case of Nemichand Shantilal Patni
v. Basantabai, MANU/MH/0040/1994 : AIR 1994 Bom 235 , in support of his
contentions that there was non-compliance of the conditions set out under Section 10
(iii) and (iv) of the Act inasmuch as the defendant was married and was above the age
of 15 years at the time of the alleged adoption of the defendant by Parvatibai. He
further submitted that in any case once the lower Appellate Court recorded a finding
that there was non-compliance of the conditions set out in Section 11(iv) of the Act, it
was imperative for the lower Appellate Court to declare the subject adoption as invalid
even though the factum of adoption was accepted to be proved. As per him, all the
conditions set out in Sections 10 and 11 of the Act are mandatory and non-compliance
of any of these conditions shall result in adoption being illegal and invalid. In support of
these contentions he placed reliance on the following decisions:

(i) Golak Chandra Rath v. Krutibas Rath, MANU/OR/0057/1979 : AIR 1979

Ori 205 (DB) and (ii) Ramchandra Balu Magadum v. Rakhamabai Balu
Magadum, 1992 Mah.L.J. 165.

The appellant also contends that the factum of adoption allegedly taken
place on 22-11-1988 could not be proved inasmuch as none of the third
party witnesses i.e. DW Nos.3 to 5 could identify the adoptive mother from
the photographs at Exhibit 79 and this deficiency is fatal, in as much as the

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 requirements of Section 11(v) of the Act were not proved by the defendant.

6. The learned counsel for the respondent on the other hand submitted as under:

(A) The factum of adoption was duly proved and, therefore, the challenge to
the same adoption on the grounds of non-compliance of the requirements of
Section 10(iii), 10(iv) and 11(iv) of the Act did not survive.

(B) Once the custom or usage of taking in adoption a person who is married
and is above the age of years at the time of adoption, has been recognised
by the judicial enunciations, it was not required to prove the same by
leading evidence before the trial Court by the respondent and, therefore, the
view taken by this Court (Single Bench) in the case of Nemichand Patni
(Supra) could not be relied upon, more so when the said decision did not
correctly appreciate the view taken by the Full Bench in the case of Anirudh
(Supra).

(C) In section 11 of the Act the word "must" is required to be read as

"may", once the factum of adoption was duly proved, and thus the view
taken by this Court (Single Bench) in Ramchandra Magadum's case (Supra)
cannot be relied upon.

(D) The provisions of Section 11 of the Act are required to be held as

directory and not mandatory.

(E) The requirements set out in Sections 10 and 11 are only incidental if the
conditions set out in Section 6 (i) to (iii), Sections 8 and 9 are proved, and

(F) The age difference between the adopting mother and the adopted son
being less than 21 years as set out in Section 11(iv) of the Act is
unreasonable, discriminatory and arbitrary and hence so long as the age
difference between the two is 18 years or more on the date of adoption, the
adoption cannot be held to be invalid on the ground that the age difference
between the two was less than 21 years on the date of adoption.

In support of these contentions it was urged by the learned counsel for the respondent
that under the Indian Majority Act, a citizen attains majority on completion of 18 years
of age and he/she is entitled for exercising the right of franchise. In addition the
minimum age for marriage for a Hindu female is fixed at 18 years under Section 5(iii)
of the Hindu Marriage Act, 1955 and the possibility of her becoming a natural mother
at the age of 19 years could not be ruled out if she would be married at the age of 18
years and, therefore, the age difference between the natural mother and the son would
be years. There is no justification in insisting on the age difference between the
adopting mother and adopted son being 21 years or more. There is no nexus between
the factum of adoption and the minimum age difference fixed at 21 or more years. The
guarantee enshrined under Article 14 of the Constitution is thus taken away. It was
also pointed out that with the rapid development in educational, economical and social
spheres in the society during the last more than 55 years of independence, fixing of
minimum age difference at 21 years is irrelevant and, therefore, the same cannot be
termed as mandatory requirement within the meaning of Section 11(iv) of the Act.

7. The Full Bench of this Court in Anirudh's case (Supra) observed, inter alia, as under:

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 (a) By following a decision of Seven Judge Bench of the Hyderabad High
Court in the case of Sheshadri v. Venubai, 37 DLR 244, in the Marathwada
area of the old State of Hyderabad, adoption of a married person was valid
and that Hindus in that area were governed by the Mayukha or the Bombay
School of Hindu Law and not by the Mitakshara;

(b) a widow can take a boy over 15 years of age in adoption as also a
married person;

(c) the practice of taking married persons and boys over 15 years of age in
adoption in the regions which are governed by the Bombay School of Hindu
Law has been consistently recognised by the Bombay High Court; and

(d) the expressions "custom" and "usage" as defined in clause (a) of Section
3 of the Act include not only customs and usages in the ordinary sense
which have obtained the force of law among Hindus in any local area, tribe,
community, group or family, but also texts, rules and interpretations of
Hindu Law which have been continuously and uniformly observed and have
obtained the force of law among Hindus in any local area, tribe, community,
group or family.

The Full Bench summarised its final conclusions in the following words:

"In our opinion, the correct view of the provisions of Clause (a) of Section 3
and of Section 4 and Clauses (iii) and (iv) of Section 10 of the said Act was
taken by Vaidya and Shimpi, JJ., in Haribai v. Baba Anna,
MANU/MH/0032/1977 : AIR 1977 Bom 289 . We accordingly accept that
view and overrule the view taken by Malvankar, J., in Second Appeal
No.1444 of 1965, Bhimrao Vithu Khandagale v. Chandru Savala
Khandagale; by Vimadalal and Naik, JJ., in Laxman Ganpati Khot v.
Anusuyabai, MANU/MH/0233/1976 : AIR 1976 Bom 264 and by Joshi, J., in
Balkrishna Raghunath Gharat v. Sadashiv Hiru Gharat,
MANU/MH/0048/1977 : AIR 1977 Bom 412 ."

8. The learned counsel for the respondent was right in his submissions that the view
taken by the Full Bench of this Court in Anirudh's case (Supra) has been approved by
the Apex Court in the case of Kondiba Rama Papal (Supra) in the following words:

"...The adoption is not invalid although it took place after the thread
ceremony of the boy was performed. Thus the custom is judicially
recognised in the Bombay State as regards adoption of a child at any age.
Once the custom is judicially recognised, it is not required to be
independently proved in subsequent cases...."

. By following the law laid down by the Full Bench of this Court in the case of Anirudh
(Supra) and by the Apex Court in the case of Kondiba (Supra) it will have to be held
that in the instant case it was not necessary for the defendant to prove by evidence
before the trial Court that there was a custom or usage prevailing in the Maratha
community in Satara District of adopting a boy who had crossed the age of 15 years
and was also married at the time of adoption. The contentions of the appellant that the
adoption of the respondent as had taken place on 22-11-1988 was illegal on account of
non-compliance of Section 10(iii) and Section 10(iv) of the Act have to be rejected and
thus the substantial questions of law at serial no.(ii) and (iii) are hereby answered

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against the appellant-plaintiff.

9. Now coming to the next issue of non-compliance of the requirements of Section 11

(iv) of the Act, as noted earlier, the lower Appellate Court has recorded a finding of fact
that the age difference between the adopting mother and the defendant was less than
21 years on 22-11-1988 and thus there was a contravention of the requirements of
Section 11(iv) of the Act. The Full Bench of this Court in Anirudh's case (Supra) was
not called upon to consider the issue as to whether the requirements set out under
Section 11 were mandatory or directory. The Apex Court in the case of Kondiba
(Supra) also did not deal with the said issue and, therefore, the Courts below
committed a gross error in holding that once the fact of adoption was proved, the non-
compliance of the requirements or of any of them under Section 11 of the Act would
not affect the adoption in any way and lead to a conclusion that the adoption was
illegal or invalid. Section 5 of the Act states that no adoption shall be made after the
commencement of the Act by or to a Hindu except in accordance with the provisions
contained in Chapter II and any adoption made in contravention of the said provisions
shall be void. As per sub-section (2) of the said Section an adoption which is void shall
neither create any rights in the adoptive family in favour of any persons which he or
she could not have acquired except by reason of the adoption, nor destroy the rights of
any person in the family of his or her birth.

Section 6 states that no adoption shall be valid unless

(i) the person adopting has the capacity, and also the right, to take in
adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned
in this Chapter. Section 11 of the Act sets out other conditions for a valid
adoption and it states that these conditions must be complied with. The
conditions which must be complied with are as under:

"(i) if the adoption is of a son, the adoptive father or mother by

whom the adoption is made must not have a Hindu son, son's son
or son's son's son (whether by legitimate blood relationship or by
adoption) living at the time of adoption;

(ii) if the adoption is of a daughter, the adoptive father or mother

by whom the adoption is made must not have a Hindu daughter
or son's daughter (whether by legitimate blood relationship or by
adoption) living at the time of adoption;

(iii) if the adoption is by a male and the person to be adopted is a

female, the adoptive father is at least twenty-one years older
than the person to be adopted;

(iv) if the adoption is by a female and the person to be adopted is

a male, the adoptive mother is at least twenty-one years older
than the person to be adopted."

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 . Section 16 creates certain presumptions as to the registered documents
relating to adoption. It states that whenever any document registered under
any law for the time being in force is produced before any Court purporting
to record an adoption made and is signed by the person giving and the
person taking the child in adoption, the Court shall presume that the
adoption has been made in compliance with the provisions of this Act unless
and until it is disproved.

10. On the first substantial question of law it is contended by the appellant that the
subject adoption did not meet the mandatory requirements of Section 11(v) in as
much as none of the witnesses could identify the adoptive mother and there was no
evidence to hold that the respondent was actually given in adoption by his parents and
was taken in adoption by Smt. Parvatibai. As per the appellant the ceremony of
adoption has not been duly proved by the defendant. In the case of Lakshman Singh
Kothari v. Smt. Rup Kanwar, MANU/SC/0225/1961 : [1962] 1 SCR 477 , their
Lordships observed as under, on the issue of transfer of adoptive boy by a ceremony of
giving and taking and the respective forms:-

"Under the Hindu Law, whether among the regenerate caste or among
Sudras, there cannot be a valid adoption unless the adoptive boy is
transferred from one family to another and that can be done only by the
ceremony of giving and taking. The object of the corporeal giving and
receiving in adoption is to secure due publicity. To achieve this object it is
essential to have a formal ceremony. No particular form is prescribed for the
ceremony, but the law requires that the natural parent shall hand over the
adoptive boy and the adoptive parent shall receive him. The nature of the
ceremony may vary depending upon the circumstances of each case. But a
ceremony there shall be, and giving and taking shall be part of it. The
exigencies of the situation arising out of diverse circumstances necessitated
the introduction of the doctrine of delegation; and, therefore, the parents,
after exercising their volition to give and take the boy in adoption, may both
or either of them delegate the physical act of handing over the boy or
receiving him, as the case may be, to a third party."

. In the case of Devgonda Raygonda Patil v. Shamgonda Raygonda Patil and Anr.,
MANU/MH/0036/1992 : AIR 1992 Bom 189 the adoption deed was registered and on
challenge to such an adoption, this court stated as under:-

"Under Section 16 of the Hindu Adoptions and Maintenance Act the

presumption is raised that adoption has been made in compliance with the
provisions of the Act. It was for the plaintiff to prove that ceremony of
giving and taking has not taken place. However, no evidence has been led in
that respect and the court below has correctly come to the conclusion that
the plaintiff has failed to prove this."

11. On the backdrop of the above enunciations, let us examine whether the plaintiff
adduced any evidence before the trial court so as to rebut the presumption embodied
under Section 16 of the Act, in the instant case. He examined himself as P.W.1
(Exh.91). He claimed that he had approached the Tahsildar, Satara vide his application
dated 7/8/1990 and the Tahsildar in turn replied to him (Exh.87) that from the birth
and death register maintained at village Bharatgaowadi there was no entry to show
that a son by name Shrirang was born to Shri Narayan S/o Bhiva Kanse. He also
claimed that the deed of adoption at Exh.85 was bogus/fabricated. The challenge to
the adoption ceremony and the adoption deed was squarely met by the defendant by

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examining in all six witnesses. In addition to D.W.1 Shrirang (Defendant), five more
witnesses were examined, namely, Narayan Bhima Kanse (D.W.2), Ramchandra
Narayan Pujari (D.W.3), Vyankatlal Ramalal (D.W.4), Maruti Atre (D.W.5) and Suman
Bartakke (D.W.6). Suman was the employee in the Tahsil Office from 1977 and she
confirmed that the true copy of the adoption deed at Exh.85 was issued by her. D.W.5
Maruti was an independent witness to the adoption ceremony. D.W.4 Vyankatlal is the
photographer who snapped the photograph at Exh.79 and D.W.3 Ramchandra Pujari
performed the ceremony. Thus, the defendant proved the factum of adoption as well as
the adoption ceremony by giving the adoptive boy by his father to the adoptive mother
and her accepting the defendant in adoption. The requirements of Section 11(vi) have
been duly proved in the instant case.

12. Now coming to the requirements of Section 11(iv), the findings of both the courts
below are concurrent i.e. the age difference between the adoptive mother and the
adoptive son was less than years. Whereas Section 11(iv) mandates that the adoptive
mother is at least 21 years older than the person to be adopted. The opening sentence
of Section 11 states that the conditions set out in Clauses (i) to (vi) must be complied
with in every adoption. In the case of Ramchandra (Supra) this court held, "at the very
inception the section speaks of the conditions set out being mandatorily required to be
complied with. No other meaning can be assigned to the words 'must be complied
with'. Therefore, one of the conditions for a valid adoption is the difference in ages
prescribed by clause (iv). Therefore, this is not a merely directory provision but
something which is mandatory and the violation whereof results in the invalidity of the
adoption".

. Reliance was placed on the Division Bench decision of the Orissa High Court in the
case of Golak Chandra Rath (Supra) wherein the Division Bench held that the violation
of condition no.iv of Section 11 would render the adoption invalid.

13. In the instance case the School Leaving Certificate of defendant issued by the
Head Master of Zilla Parishad School at Bharatgaon stated that his date of birth is 1st
June 1960 (Exh.63). The defendant in his depositions before the trial court admitted
that Parvatibai's name was Jagi and she was the daughter of Shri Lashman Ananta
Shedge. The extract brought on record at Exh.68 showed that she was born on
2/5/1942. The Lower Appellate Court, therefore, held that the adoptive mother was not
at least 21 years older than the defendant and the adoption was apparently in
contravention of Section 11(iv) of the Act. Section 5 of the Act states that no adoption
shall be made by or to a Hindu except in accordance with the provisions contained in
Chapter II and any adoption made in contravention of the said provisions shall be void.
As per Section 6, no adoption shall be valid unless ... (iv) the adoption is made in
compliance with the other conditions mentioned in Chapter II. Section 11 finds its
place in Chapter II of the Act. Thus, a combined reading of Sections 5,6 and 11 clearly
goes to prove that the other conditions for valid adoption set out under Section 11 are
mandatory and the word "must" cannot be read as "may" as contended by the learned
counsel for the respondent. The arguments advanced by the learned counsel for the
respondent though appear sound, may be impressive and deserving consideration on
the floor of the House (Parliament) and while deciding the Second Appeal the scheme
of Sections 5,6, 10 and 11 of the Act will have to be considered on the basis of the
interpretations set out by various enunciations and referred to hereinabove. It is not
for the Courts to give a different meaning to the word "must" and a combined reading
of the scheme of Sections 5, 6, 10 and 11 goes to show that the other conditions set
out under Section 11 of the Act are mandatory for a valid adoption. Whatever may be
the intention of the Legislature originally, it cannot be diluted so as to read the word
"must" as "may" as contended by the learned counsel for the respondent. The lower

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Appellate Court rightly held that the condition of Section 11(iv) of the Act was
breached in the instant case inasmuch as the age difference between the adoptive
mother and the defendant, at the time of adoption, was less than 21 years. This
breach is fatal to the adoption. The substantial question of law framed at (iv) in para 1
above thus stands answered in favour of the plaintiff and it has to be held that the suit
adoption was in breach of the condition set out in Section 11(iv) and, therefore, was
invalid and void ab initio. The plaintiff would consequently succeed in this Second
Appeal.

14. In the premises this Second Appeal is allowed on the ground that the mandatory
requirements under Section 11(iv) have not been complied in the adoption of the
defendant by Smt. Parvatibai and, therefore, the said adoption is hereby declared as
invalid. Regular Civil Suit No.589 of 1991 succeeds and the same is hereby decreed by
declaring that the adoption of the defendant held on 2/11/1988 is invalid and void ab
initio. The orders passed by both the Courts below are hereby quashed and set aside
but without any order as to costs.

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