BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/12/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD) No.251 of 2006 and S.A.(MD)No.542 of 2006 and Cross Objection SR.No.20509 of 2006 C.M.A.(MD) No.251 of 2006 K.R.Sivasankar ... Appellant /1st Respondent/
Plaintiff
Vs
1.K.R.Ramamoorty … 1st Respondent
/Appellant/
1st Defendant
2.M.Natarajan
3.K.Murugan
4.S.Gowri … Respondents 2 – 4
/Respondents 2 -4/
Defendants 2 – 4
5.G.Karthikeyan
6.The State Bank of India,
through its Branch Manager,
Kasimedu Branch, Madurai.
… Respondents 5 & 6
(R5 and R6 are impleaded as proposed respondents as per order of this Court
dated 29.08.2007 made in M.P(MD)No.1 of 2007.)
Prayer in C.M.A.No.251 of 2006: Appeal filed under Order 43 Rule 1(v) of Civil
Procedure Code, against the judgment and decree dated 05.12.2005 passed by the
learned Principal District Judge, Madurai, in A.S.No.36 of 2005 modifying the
judgment and decree dated 13.01.2005 in O.S.No.1078 of 1994 on the file of the I
Additional Subordinate Judge, Madurai.
S.A.(MD)No.542 of 2006
K.R.Sivasankar .. Appellant/
1st Respondent/
Plaintiff
Vs
1.K.R.Ramamoorty .. 1st Respondent
Appellant/
1st Defendant
2.M.Natarajan
3.K.Murugan
4.S.Gowri .. Respondents 2 – 4/
Respondents 2 -4/
Defendants 2 – 4
Prayer in S.A.No.542 of 2006: Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 05.12.2005 passed by the learned
Principal District Judge, Madurai, in A.S.No.36 of 2005 modifying the judgment
and decree dated 13.01.2005 in O.S.No.1078 of 1994 on the file of the I
Additional Subordinate Judge, Madurai.
!For Appellant … Mr.M.N.Sankaran
^For Respondents … Mr.M.S.Balasubramania Iyer
for R.1
Mr.M.Vallinayagam
for R.2 and R.3
Mr.E.N.Venkatesan for R.4
:COMMON JUDGMENT
C.M.A.No.251 of 2006 and S.A.No.542 of 2006 are taken up together, as they
are inter-linked with each other and emerged out of one and the same judgment
passed by the Principal District Judge, Madurai, in A.S.No.36 of 2005, dated
05.12.2005.
2. Both the Courts below detailed and delineated the relevant facts as
found set out in the pleadings of the parties.
3. However, for better appreciation in view of the intricate law points
touching upon the facts involved in this case, it is just and necessary to
broadly but briefly, precisely but narratively, set out the facts thus.
4. The litigation is mainly between the father and the son.
5. The suit property and the other properties originally belonged to one
K.S.Venkatakrishna Iyer who died intestate around the year 1952, leaving behind
his three sons namely K.V.Rengachary, K.V.Sarangapani and K.V.Narayanan Iyer,
who got the properties partitioned as per partition deed dated 28.11.1938; a
schedule property mentioned therein was alloted to the share of K.V.Rengachary
who had two sons namely the first defendant K.R.Ramamoorthy and K.R.Rajan.
After the death of Rengachary, the said A Schedule property of the partition
deed dated 28.11.1938, was divided between the first defendant herein and his
brother Rajan and in that, the suit properties were alloted to the share of the
first defendant, whose only son namely Sivasankar filed O.S.No.1078 of 1994 in
the Court of the I Additional Subordinate Judge, Madurai. Initially, the suit
was instituted by the son as against the father only and subsequently, the
defendants 2 to 4, the purchasers of various items of the suit properties from
the first defendant, were impleaded.
6. The properties described in the Schedule of the plaint indubitably and
indisputably are the ancestral properties, over which there is no controversy.
The plaintiff and his father, the first defendant are entitled to equal share in
it. Despite demands made by the plaintiff, the first defendant has not come
forward for amicable partition and hence, the suit.
7. Per contra, denying and refuting, challenging and impugning the right
of the plaintiff to claim partition, the first defendant filed the written
statement setting out the averments inter alia thus:
The plaintiff even though happened to be the first defendant’s biological
son, he was given in adoption to one Somalinga S.Viswanathan as early as in the
year 1954, when the plaintiff was only four years old. As such, the plaintiff
can never be treated as co-parcener having any right in the suit property which
are in the exclusive enjoyment and possession of the first defendant.
Accordingly, he prayed for dismissal of the suit.
8. The plaintiff filed the reply statement denying the alleged adoption
and other allegations in the written statement by setting out the additional
facts as under:
The plaintiff’s mother and the said Somalinga S.Viswanathan’s wife were
sanguine sisters and the plaintiff was brought up by Somalinga S.Viswanathan,
but not as his adopted son. No ceremony relating to the alleged adoption was
performed; whereas in the recent family arrangement deed dated 19.07.1993, the
first defendant himself signed it highlighting that the plaintiff happens to be
his son entitled to a share in the suit properties.
9. Per contra, the first defendant filed an additional written statement
alleging that among the suit properties, a vacant site of 4 1/4 cents in
Avaniapuram in Plot No.6 of S.No.100/1 was not included. Somalinga
S.Viswanathan was a multi-millionaire at the time of taking the plaintiff in
adoption as he had no child of his own.
10. He also set out various facts which according to him, would show that
the plaintiff is the adopted son of S.S.Viswanathan. Initially, the plaintiff
impleaded only his father K.R.Ramamoorthy. Subsequently, the defendants 2 to 4
were added as they purchased the suit property from the first defendant and
acquired interest over those properties and they also filed separately written
statements contending that the plaintiff is only the adopted son of
S.S.Viswanathan and he is having no right over the suit properties purchased by
them. The first defendant also contended that the suit was bad for want of
adding his two daughters as parties to the proceedings.
11. During trial, before the trial Court, the plaintiff examined himself
as P.W.1 and Exs.A.1 to A.44 were marked. The first defendant examined himself
as D.W.1 and D.W.2 to D.W.6 were also examined. Exs.B.1 to B.55 were marked on
the side of the defendants.
12. The trial Court ultimately decreed the suit holding that the plaintiff
is entitled to half share and accordingly, ordered partition by finding that the
plaintiff was not the adopted son of S.S.Viswanathan.
13. Being aggrieved by and dissatisfied with, such judgment and decree of
the trial Court, as many as four appeals were filed; A.S.No.27 of 2005 by the
fourth defendant, Dr.S.Gowri, A.S.No.28 of 2005 by the second defendant
M.Natarajan, A.S.No.30 of 2005 by the third defendant K.Murugan and A.S.No.36 of
2005 by the first defendant K.R.Ramamoorthy, respectively.
14. The plaintiff also filed Cross Appeal in A.S.No.36 of 2005 as against
the rejection of the claim of the plaintiff for mesne profits.
15. The first appellate Court by its common judgment held that the
plaintiff is the adopted son of S.S.Viswanathan; however, the plaintiff is
entitled to a share in the suit property; the said two sisters of the plaintiff
should have been added as parties in view of the recent Central Amendment Act
No.39 of 2005 to the Hindu Succession Act, 1956, the defendants 2 to 4 are the
bona fide purchasers for value and they are entitled to the first defendant’s
share at the time of physical partition during the final decree proceedings.
Ultimately, the first appellate Court remanded the matter to the trial Court for
adding the two sisters of the plaintiff and thereafter to decide on the
respective shares of the co-parceners.
16. Challenging the common judgments and decrees of the first appellate
Court, S.A.No.542 of 2006 and C.M.A.No.521 of 2006 have been filed by the
plaintiff and the first defendant has preferred the Cross Appeal.
17. The second appeal is focussed as against the finding of the first
appellate Court that the plaintiff is the adopted son of the said
S.S.Viswanathan and the related facts; whereas the Civil Miscellaneous Appeal
was filed as against the order of remand of the first appellate Court for adding
the said two sisters of the plaintiff and proceed further with the suit.
18. The gist and kernel of the grounds of appeal as found set out in the
second appeal as well as in the Civil Miscellaneous Appeal by the plaintiff
would run thus:
Oblivious of the evidence both oral and documentary placed before the
first appellate Court relating to highlighting the falsity of adoption, the
first appellate Court erroneously held as though the plaintiff is the adopted
son of S.S.Viswanathan. The first appellate Court failed to take into
consideration the family arrangement, Ex.A.23, dated 19.07.1993 and Exs.A.3 to
A.14 wherein the first defendant candidly and categorically admitted the status
of the plaintiff as one that of his son. The first appellate Court also has not
considered the falsity of D.W.3’s evidence. The first appellate Court also
failed to consider that if really, adoption had taken place as per Sasthric
rites by performing the ceremonies, the near relatives namely K.N.Srinivasan,
K.R.Rajan and R.G.Kumarendran must be able to speak about it, but they have not
been examined before the Court.
19. The first appellate Court simply carried away by the use of the
initials ‘S.V’ before the name of the plaintiff and those facts alone would not
constitute evidence for proving adoption. Overlooking the fact that the initial
‘S.V’ preceded the names of the plaintiff and his sister, because they were
brought up in the house of S.S.Viswanathan at Bangalore and that he got them
admitted in school, the first appellate Court suo motu took into consideration
the recent amendment to the Hindu Succession Act and simply remanded the matter
so as to implead the two sisters of the plaintiff as parties to the suit,
ignoring the fact that the Tamil Nadu Amendment Act 1 of 1990 which contemplates
that only the unmarried daughters are entitled to a share and not the married
daughters as the ones referred to in this case. Admittedly, the said two
daughters of the first defendant got married long prior to the commencement of
the said Amendment Act 1 of 1990 amending the Hindu Succession Act, 1956.
Accordingly, the appellant/plaintiff prayed for setting aside the judgment and
decree of the first appellate Court and restoring the decree of the trial Court
in ordering partition and for allotment of half share in the suit properties in
favour of the plaintiff.
20. The following substantial questions of law were framed by my learned
Predecessor while admitting S.A.No.542 of 2006:
“(a) Whether factum of adoption as pleaded by the first respondent has
been established?
(b) Whether in the partition suit filed by the appellant against the
father (the first respondent), the daughters are necessary parties?
(c) Whether the benefits of the Hindu Succession (Amendment) Act 1 of 1990
are available to the daughters of the first respondent married before
25.03.1989?”
21. The question of law framed by this Court in C.M.A.No.251 of 2006 would
run thus:
“The point to be decided in this Civil Miscellaneous Appeal is as to
whether the judgment of the first appellate Court in remanding the matter to the
trial Court for impleading two sisters of the plaintiff and for determining the
shares of the respective co-sharers is tenable?”
22. In my opinion, considering the grounds of second appeal and the cross
appeal, the substantial questions of law, could be highlighted thus:
(i) Whether the first appellate Court was justified in reversing the trial
Court’s finding that there was no adoption of the plaintiff by S.S.Viswanathan
by re-appreciating the evidence adduced on the defendant’s side and that too in
the absence of three near relatives having been examined before the Court and
also in ignoring the admissions made by the first defendant in various documents
that the plaintiff is his son?
(ii) Whether the Tamil Nadu Amendment Act 1 of 1990 is having overriding
effect on Central Amendment Act 39 of 2005 in amending the Hindu Succession Act,
1956 and whether the Central Amendment Act 39 of 2005 is applicable to pending
proceedings in the Court?
(iii) Whether the adoption would deprive the adopted son from claiming any
share in the co-parcenary property of his natural family?
The Points:
23. The learned Counsel for the first defendant drawing the attention of
this Court to the original plaint and written statements, would develop his
argument to the effect that even in the plaint while it was originally typed,
the plaintiff’s initials were mentioned as ‘S.V’ and thereafter, it was
corrected as ‘K.R’ so as to suit the plaintiff’s contention that he was not the
adopted son of S.S.Viswanathan.
24. The learned Counsel for the first defendant placing reliance on the
original memorandum of first appeal, would argue that even in the first appeal
filed by the plaintiff, his initial was first typed as ‘S.V’ and thereafter, it
was corrected. Whereas the learned Counsel for the plaintiff would correctly
and convincingly submit that such typographical errors committed while typing
and subsequent correction can never be relied on by the first defendant. One
cannot try to make a mountain out of a mole hill.
25. Here, the substantial question of law involved is relating to adoption
and the onus of proof obviously is on the person who pleads, namely the first
defendant to prove that there was adoption of the plaintiff by S.S.Viswanathan.
By no stretch of imagination, such typographical errors crept in the memorandum
of appeal, could ever be taken as a decisive factors for deciding the question
of adoption. Accordingly, no more elaboration is required in this regard.
26. The learned Counsel for the plaintiff would contend that the first
appellate Court misdirected itself by giving undue importance to the use of
initials ‘S.V’ before the name of the plaintiff. In fact, according to the
plaintiff, such initial emerged while he was a young boy and that too when his
foster-father S.S.Viswanathan who brought him up in Bangalore, got him admitted
in school by furnishing such initials and that even the plaintiff’s sister
Thulasimani was brought up by S.S.Viswanathan who got her admitted by furnishing
the initials ‘S.V’ before her name. The trial Court at paragraph No.15
considered this aspect correctly by discussing that the plaintiff’s elder sister
Thulasimani was also brought up by S.S.Viswanathan along with the plaintiff and
her name also is prefixed by the initials ‘S.V’, as in the case of the
plaintiff. It is therefore at once evident that the plaintiff and his elder
sister were brought up together by the first defendant’s co-brother
S.S.Viswanathan at Bangalore, as he had no natural child of his own. The fact
also remains that S.S.Viswanathan was a rich man at the relevant point of time.
It appears, the first appellate Court misdirected itself by giving undue
importance to the use of initial ‘S.V’ in the school records. If really, the
plaintiff was the adopted son of S.S.Viswanathan. Because of that fact alone,
before the plaintiff’s name the initial ‘S.V’ had been used, then it should not
have been used before the name of Thulasimani, the elder sister of the
plaintiff, because of close relationship between the first defendant and the
said S.S.Viswanathan and that the latter only had brought up Thulasimani as well
as the plaintiff, the said S.S.Viswanathan had chosen to furnish the initial
‘S.V’ before the name of Thulasimani as well as the plaintiff. The matter would
have been entirely different if the plaintiff was entrusted to a stranger to be
brought up and if such stranger had caused the first letter of his family name
as well as his name as initials of the boy.
27. The learned Counsel for the plaintiff would correctly argue that the
first appellate Court without addressing itself to the pleas as found set out in
the pleadings of the parties, assumed and presumed as though as per the Hindu
Succession Amendment Act 39 of 2005, the daughters of the first defendant are
having the right over the property and accordingly, remanded the matter to the
trial Court without any basis. Whereas the learned Counsel for the first
defendant would submit that the defence raised in the written statement that the
suit is bad for non-joinder of the daughters of the first defendant as parties
and that the first appellate Court in its judgment remarked that the trial Court
did not frame any issue on that point.
28. At this juncture, it is worthwhile to analyse the legal position
relating to application of Hindu Succession Amendment Act 39 of 2005, to the
facts and circumstances of this case.
29. The learned Counsel for the plaintiff would correctly and legally
submit that the recent Central Amendment Act 39 of 2005 is not applicable in
view of the following decisions of the Honourable Apex Court:
(i) Sheela Devi v. Lal Chand reported in (2006) 8 Supreme Court Cases 581.
An excerpt from it, would run thus:
“21. The Act indisputably would prevail over the old Hindu law. We may
notice that Parliament, with a view to confer right upon the female heirs, even
in relation to the joint family property, enacted the Hindu Succession Act,
2005. Such a provision was enacted as far back in 1987 by the State of Andhra
Pradesh. The Succession having opened in 1989, evidently, the provisions of the
Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of
the Act governs the law relating to succession on the death of a coparcener in
the event the heirs are only male descendants. But, the proviso appended to
sub-section (1) of Section 6 of the Act creates an exception. First son of Babu
Lal viz., Lal Chand, was, thus, a coparcener. Section 6 is an exception to the
general rules. It was, therefore, obligatory on the part of the respondent-
plaintiffs to show that apart from Lal Chand, Sohan Lal will also derive the
benefit thereof. So far as the second son, Sohan Lal is concerned, no evidence
has been brought on record to show that he was born prior to coming into force
of the Hindu Succession Act, 1956.” (emphasis
supplied.)
30. Following the aforesaid precedent, this Court also held the same view
in Jayalakshmi and another v. Govindammal and others reported in 2007 (2) TLT
193. An excerpt from it, would run thus:
“15. That apart, it is clear that the evidence of P.W.1 is not certain
about the properties, apart from the fact that the properties which are standing
in the name of Vengadapathy Gounder which were purchased by him after the death
of his father Murugesa Gounder and sold by him to third parties have also been
included. Again the Trial Court has found that Ex.B.8 Will executed by Annammal
in favour of Vengadapathy Gounder has been proved in the manner known to law and
there is absolutely no substance in the contention of the plaintiffs and on the
other hand, the judgment of the Trial Court is based on sound reasoning and not
perverse. The submission made by the learned Counsel for the appellate based on
the Hindu Succession (Amendment) Act, 2005 that by virtue of the amendment the
daughter of a corparcenary family is also entitled in her own right in the same
manner as son, has no relevance for the reason that the said central amendment
which has come into effect from 09.09.2005 which is prospective as it is held by
the Hon’ble Supreme Court in Sheela Devi and others vs. Lal Chand and another
reported in 2006 (8) SCC 581 and therefore, the amendment is not applicable as
far as the facts and circumstances of the present case.”
31. As such, the aforesaid decision of the Honourable Apex Court as well
as the decision of this Court would highlight and spotlight that the Amendment
Act is having only prospective effect and not retrospective effect. The
Honourable Apex Court in the decision cited supra, has not even recognised Sohan
Lal, the second son born after the year 1956 as one of the co-sharers, but only
recognised the first son Lal Chand as co-sharer and even though, the death of
Babu Ram took place in the year 1959, Sohan Lal was not treated as co-sharer.
The Honourable Apex Court did not treat the daughters of Babu Ram as co-sharers,
by holding that the Hindu Succession (Amendment) Act, 2005 is having only
prospective effect and no retrospective effect. In such view of the matter, the
daughters of the first defendant in this case, cannot be taken as co-sharers and
the first appellate Court committed error in ordering remand of the matter for
impleading the daughters of the first defendant in the suit.
32. Even the Tamil Nadu Amendment Act 1 of 1990 would clearly exclude the
daughters, who got married anterior to 25.03.1989, from claiming share in the
coparcenary properties. Admittedly, both the daughters of the first defendant
got married long before 25.03.1989 and as such, as per both the Tamil Nadu
Amendment Act 1 of 1990 as well as the Central Act namely, the Hindu Succession
(Amendment) Act, 2005, the daughters cannot be treated as co-sharers.
33. Ex.B.1, is the photocopy of the cumulative record issued by the
Department of Public Instructions which would show that in the school records of
the plaintiff, his name was mentioned as S.V.Sivasankaran, son of
S.S.Viswanathan and Saraswathi Ammal. The trial Court at paragraph No.15,
highlighted that from the evidence, it was clear that even for Thulasimani, the
elder sister of the plaintiff, the initials ‘S.V’ were used. Ex.A.14 is the
marriage invitation of Thulasimani which demonstrates that Thulasimani has been
described therein as the foster-daughter of the said S.S.Viswanathan and the
plaintiff’s name is found listed in the column ‘persons expecting invitees’ as
S.V.Sivasankaran. The bride herself is cited as S.V.Thulasimani. It is
therefore logically understandable that those two foster children were using the
initials ‘S.V’ before their names and not in their status as adopted children of
S.S.Viswanathan.
34. Ex.A.31 is one other marriage invitation relating to the marriage of
the plaintiff’s uncle’s son Ramesh and in that, it is found printed as
“K.R.Ramamoorthy and son” which signifies the first defendant and the plaintiff.
It is therefore clear that it is not as though the plaintiff was exclusively
projected as the adopted son of S.S.Viswanathan. Ex.A.15, is the marriage
invitation of the plaintiff which demonstrates that the marriage of the
plaintiff was scheduled to be held in the house of the first defendant in
Madurai and the name of the first defendant and his wife are found as the
authors of that marriage invitation as they were soliciting the invitees for
their son’s marriage namely the plaintiff’s marriage scheduled to be held on
06.12.1987. In Ex.A.15, the bridegroom namely the plaintiff is referred to as
K.R.Sivasankar. As such, it is another clinching piece of evidence which would
speak against the theory of adoption.
35. Ex.A.21, is the registered will dated 25.04.1977 executed by
Saraswathi Ammal, the wife of S.S.Viswanathan. An excerpt from it, would run
thus:
“Whereas I am the widow of late.Somalinga S.Viswanatha Iyer and could not
bear any child till 1950, both my husband and myself decided to take in adoption
a boy and a girl, with this in view we took care of Miss.Thulasimani and
Mr.Shiva Shankar children of my younger sister Jamuna and Sri.K.R.Rama Moorthy
residing at No.19-A, Solia Chetty Street, Madurai-1, and brought up them with us
as our children, even though we wished to adopt them as our children, as my
sister could not get any more children, she did not prepare to give them in
adoption to us. But, she permitted us to bring up them and to keep them with
us. Thus till this date both of them are residing with me as our foster
children.”
36. It is therefore clear that the plaintiff and his elder sister
Thulasimani were brought up as foster-children of S.S.Viswanathan and Saraswathi
Ammal. Ex.A.21, is an ante litum motum document which emerged voluntarily and
this is a very important document throwing much light on the status of the
plaintiff that he was only the foster son of S.S.Viswanathan and Saraswathi
Ammal. The first appellate Court without properly appreciating the significance
of Ex.A.21, simply in paragraph No.26 of its judgment assumed as though it was
not proved as per Section 68 of the Indian Evidence Act.
37. Oblivious of the correct legal position relating to proving of the
Will, the first appellate Court simply discarded Ex.A.21. It is a trite
proposition of law that if the Will is sought to be put in execution by the
propounder of the Will, then only Section 68 of the Indian Evidence Act has to
be applied. Ex.A.21, the Will is a registered one and admittedly, emerged long
prior to the arisal of the dispute between the plaintiff and the first defendant
herein, in such a case, it is having authenticity of its own. The decision of
the Honourable Apex Court in Pentakota Satyanarayana v. Pentakota Seetharatnam
reported in (2005) 8 Supreme Court Cases 67, would posit the aforesaid
proposition of law as enunciated supra. It is not the case of the defendant
that Ex.A.21 is a forged or fabricated one. Hence, the first appellate Court’s
finding relating to the admissibility of Ex.A.21 in this case, is perverse.
38. It is therefore crystal clear that undoubtedly the plaintiff was not
the adopted son of S.S.Viswanathan. In fact, Ex.A.22, is the draft prepared by
the first defendant in Tamil and it was sent to Bangalore for preparing Ex.A.21.
But, Ex.A.22 does not bear the signature of the first defendant. However, de
hors Ex.A.22, as indicated supra, the registered Will Ex.A.21 clearly
demonstrates that the plaintiff was only the foster son of S.S.Viswanathan and
Saraswathi Ammal.
39. Ex.A.23, is the photocopy of the family settlement dated 19th July
1993, which was admittedly prepared by the first defendant and signed by him and
sent to the plaintiff who was in Bangalore for obtaining his signature and it is
also in evidence that the plaintiff refused to sign Ex.A.23 as the first
defendant was not prepared to give the plaintiff his half share, but only a
limited portion. The first appellate Court simply discarded Ex.A.23 as though
it is only a photocopy having no legal significance.
40. In my considered opinion, the first appellate Court was wrong in
rejecting Ex.A.23 for the reason that D.W.1 himself during cross-examination
candidly admitted the genuineness of Ex.A.23 as D.W.1 deposed that the plaintiff
refused to sign Ex.A.23, for the reason that half share out of the total
properties was not allotted to him under Ex.A.23. When the litigative battle is
between the father and son relating to the legal status touching upon their
relationship with each other and there is admission by the first defendant
himself that it was the first defendant who prepared Ex.A.23 and sent it to his
son and his son refused to sign it, there is no harm in relying upon such a
document for the purpose of understanding that the plaintiff was referred to
therein as his son by the first defendant himself.
41. Furthermore, de hors Ex.A.23, the admission of the first defendant
during cross-examination would demonstrate that he during the year 1993, shortly
before the filing of the suit admitted candidly that the plaintiff is entitled
to a share in the suit properties. As such, the first appellate Court once
again had gone wrong in not applying the correct proposition of law.
42. The learned Counsel for the first defendant would develop his argument
to the effect that under Ex.A.23, what the first defendant intended to give, was
only out of generosity and not in recognition that the plaintiff happened to be
his son. In support of his argument, he cited the decision of the Honourable
Apex Court in D.S.Lakshmaiah & another v. L.Balasubramanyam & another reported
in 2004-3-L.W.49. An excerpt from it, would run thus:
“19. … From the mere fact that other members of the family were allowed
to use the property jointly with himself, or that the income of the separate
property was utilised out of generosity to support persons whom the holder was
not bound to support, or from the failure to maintain separate accounts,
abandonment cannot be inferred, for, an act of generosity or kindness will not
ordinarily be regarded as an admission of a legal obligation.”
43. In the aforesaid case, the facts are to the effect that one of the co-
sharers allowed his self-acquired property to be utilised by other co-sharers
out of generosity and in that context, the Honourable Apex Court held that such
a mere act of generosity would not be taken as evidence to prove that the
property concerned is a joint property of all and that it has been cited out of
context as in this case, there is no question of generosity arises, when the
documents referred to supra, are clearly highlighting that the plaintiff is the
son of the first defendant and the plea of generosity as put forth on the first
defendant’s side, is nothing, but an attempt to wriggle out of his own admission
under Ex.A.23, during cross-examination. But, the first appellate Court without
properly appreciating the evidentiary value of Ex.A.23 and the answer given by
the defendant during cross-examination simply arrived at the conclusion that
there was adoption.
44. Ex.A.34, is the certified copy of the sale deed dated 24.03.1983 which
would demonstrate that the plaintiff as vendor under the deed was described as
the foster son of S.S.Viswanathan and son of K.R.Ramamoorthy, the first
defendant herein. The fact remains that during the year 1983, an immovable
property was purchased by the plaintiff as per Ex.A.34, which was marked during
the cross-examination of D.W.1 on his admission. In fact, D.W.1, during cross-
examination candidly admitted that the recitals in Ex.A.34 were dictated by the
first defendant only.
45. As such, it is crystal clear that during the year 1983, long prior to
the dispute arose between the plaintiff and the first defendant, Ex.A.34, the
registered document emerged and in that, the plaintiff has been described as the
foster son of S.S.Viswanathan and the son of the first defendant.
46. The first appellate Court is having no plausible reason at all for
skipping over or ignoring Ex.A.34. As such, the first appellate Court’s
finding, to say the least, is perverse.
47. Ex.A.25 is the power deed prepared by the first defendant in Madurai
and sent to the plaintiff in Bangalore requesting the latter to execute the
power deed as contained in Ex.A.24, the draft so as to enable the first
defendant to act on behalf of the plaintiff also so as to sell some of the
properties.
48. Ex.A.24, the covering letter coupled with Ex.A.25 would further
strengthen the case of the plaintiff that he is the son of the first defendant
having right as co-sharer in the coparcenary properties namely the suit
properties and absolutely, there is no rhyme or reason on the part of the first
defendant in contending that after the alleged adoption, there was severance of
status that the plaintiff had lost his right in the coparcenary properties and
that he became part of the family of S.S.Viswanathan.
49. Ex.A.34, is the certified copy of the registered power deed relating
to some Trust property of Kuppa family wherein the plaintiff and his minor
children are treated as members of Kuppa family. As such, this is another
clinching piece of evidence which the first appellate Court miserably failed to
consider.
50. Ex.A.38 has been marked during the cross-examination of D.W.1 on his
admission and it is the letter dated 14.02.1993 written by the wife of the first
defendant to the plaintiff requesting him to sign the aforesaid draft settlement
deed, Ex.A.23. This document was also not considered by the first appellate
Court for no good reason.
51. In the wake of this clinching documents including registered documents
and the admissions of the first defendant himself, the first appellate Court
simply ignoring all these facts mainly relied on the use of initial ‘S.V’ before
the name of the plaintiff at one point of time, while the plaintiff was a young
school going boy and the fact remains that it was S.S.Viswanathan who furnished
those initials for being specified in the school records. As against the
clinching evidence adduced by the plaintiff demonstrating that the plaintiff is
the son of the first defendant and that he was only the foster son of the
deceased S.S.Viswanathan and his wife, the first appellate Court relied on
certain insignificant and unimportant evidence as though he was the adopted son
of S.S.Viswanathan. Ex.A.43, is the photocopy of the receipt issued by
Thirumoogur Temple marked during the cross-examination of D.W.1 which would
demonstrate that religious marriage of the plaintiff took place at the said
temple. In Ex.A.43, the plaintiff himself signed the receipt and in that the
name of the plaintiff is mentioned as R.Sivasanakaran which indicates that he is
the son of the first defendant. In view of such clinching admissions on the
part of the first defendant, there could be no second thought over the fact that
the plaintiff is the son of the first defendant and not the adopted son of
S.S.Viswanathan.
52. The first appellate Court at paragraph No.32 observed that even D.W.2,
the third wife of S.S.Viswanathan during the cross-examination admitted that
when she asked S.S.Viswanathan about the plaintiff who was present in the house,
the said S.S.Viswanathan told her that the plaintiff was his foster son. The
first appellate Court without any rhyme or reason did not rely upon her answer
during the cross-examination.
53. The name of the plaintiff is found specified as S.V.Sivasankar in the
following documents as under:
“(i) Ex.B.2 – Photocopy of the Driving licence.
(ii) Ex.B.3 – Photocopy of the Statement of Income Tax Assessment of year
1994-95.
(iii) Ex.B.4 – Photocopy of the Family Ration Card.
(iv) Ex.B.5 – Photocopy of the Voters list.
(v) Ex.B.6 – Affidavit of the plaintiff relating to driving licence.
(vi) Ex.B.7 – Photocopy of the R.C.Book.
(vii) Ex.B.9 – Copy of the statement of the plaintiff in H.R.C.No.198 of
1994.
(viii) Ex.B.10 – Copy of the amended petition in H.R.C.No.198 of 1994.
(ix) Ex.B.11 – Advocate’s Notice.
(x) Ex.B.14 – Copy of the Form No.2A
(xi) Ex.B.31 – Copy of the Settlement Deed executed by the plaintiff in
favour of his wife.”
Even in Ex.B.31, settlement deed executed by the plaintiff in favour of his
wife, he referred to himself as foster son of S.S.Viswanathan and natural son of
K.R.Ramamoorthy, even though he put the initials ‘S.V’ before his name.
54. Simply because, after the death of the tenant, the deceased
S.S.Viswanathan, his landlord impleaded the plaintiff as the son of the deceased
tenant, there is no presumption that the plaintiff is the adopted son of the
deceased S.S.Viswanathan. In Rent Control Proceedings, anyone who resided along
with the deceased tenant could be impleaded and it is a trite proposition
warranting no more elaboration. One cannot expect the landlord of the deceased
tenant to know about the details as to whether the person who resided with him
was his adopted son or natural son. Hence, reliance cannot be placed on such
stand of the landlord in the Rent Control Proceedings. For that matter, the
plaintiff’s role in participating in such Rent Control Proceedings in no way
would enure support to the first defendant’s plea.
55. However, in the wake of the weighty and clinching documents filed on
the side of the plaintiff as discussed supra, the documents on the side of the
first defendant are insignificant ones which could not prove adoption.
56. Advancing argument on the law relating to adoption as it was obtaining
anterior to coming to the vogue of Hindu Succession Act, 1956, the learned
Counsel for the plaintiff would submit that as per the then existed law anterior
to the codified law, only son of a biological/natural father cannot be given in
adoption; whereas in this case, the plaintiff happened to be only son of his
biological father namely the first defendant and as such, he could not have been
validly given in adoption allegedly in favour of S.S.Viswanathan, the first
defendant’s co-brother. He would also convincingly argue that the theory
belatedly put forth by the first defendant during the pendency of the suit, as
though a second son was born and alive at the time of giving in adoption the
plaintiff and that the second son died only after the plaintiff having been
given in adoption, the plaintiff, was disbelieved by both the Courts below and
as such, on that ground itself, the theory of adoption is untenable.
57. The learned Counsel for the plaintiff would correctly and convincingly
argue, placing reliance on the decision of this Court in Meenakshi Ammal v.
Velusamy reported in (2002) 3 M.L.J 305 and would develop his argument that the
plaintiff happened to be only son of the first defendant and as per the Hindu
Law, he could not have been given in adoption. Certain excerpts from it, would
run thus:
“18. N.R.Raghavachariar’s Hindu Law, 8th edition, paragraph 137 deals with
adoption of an only son:
“An adoption of an only son is not null and void under the Hindu Law and
the text of Vasishta prohibiting it is only directory and not mandatory.” …
22. The law of adoption is now governed wholly by the Hindu Adoptions and
Maintenance Act, 1956. The adoption in the present case is one that is alleged
to have been made on a date that is prior to that and therefore, only the
earlier Hindu Law covers it. N.R.Raghavachariar’s Hindu Law states that the
while Sankskrit Law of Adoption is evolved from two texts and a metaphor. The
texts are those of Manu and Vasishta and the metaphor is that of Saunaka. Manu
says:
“He whom his father or mother gives to another as his son, provided that
the donee has no issue, if the boy be of the same class, and affectionately
disposed, is considered as a son given, the gift being confirmed by pouring
water.” (Manu, ix, S.168). Vasishta’s text is “A son formed of sexual fluids
and of blood, proceeds from his father and mother as an effect from its cause.
Both parents have power to sell, or to desert him. But let no man given, or
accept, an only son, since he must remain to raise up a progeny for the
obsequies of ancestors.”
Under the Hindu Law, it is also essential for the validity of an adoption
that the child should be given to the adopter by the father or if dead, by the
mother. No other person has the right nor can the same be delegated to any
other. The effect of adoption is a complete severance of the child adopted from
the natural family in which he was born and complete substitution into the
adopter’s family as if he were born in it. It is as if he is new born in the
family of his adoptive father.
24. There is no documentary evidence of adoption. There is no
photographic evidence of adoption. No one knows about the date, month or year
of adoption. There is discrepancy regarding the place at which the adoption
took place. In those circumstances, it is difficult to believe that an only
child was given in adoption.”
58. This Court in the aforesaid decision would clearly highlight the point
that before the commencement of Hindu Adoption and Maintenance Act, 1956, the
old Hindu Law was applicable and as per such Hindu Law, a father having only one
son cannot give him in adoption and that too in the absence of any clinching
evidence, the adoption of only son of the biological father cannot be upheld as
true. Here, in this case, as per the first defendant, the alleged adoption took
place during January 1954 and at that time, the old Hindu Law was in vogue and
hence his only son, the plaintiff could not have been legally given in adoption
at all and that too in the wake of murky evidence adduced on the side of the
first defendant. To get over this obstacle, the first defendant went to the
extent of dishing out an untenable plea after nine years of the filing of the
present suit, in his additional written statement as though just a few months
before allegedly giving in adoption the plaintiff, one other son was born to
the first defendant and such second son died a few months after giving in
adoption the plaintiff. Absolutely, there is no iota or shred of evidence to
prove such a plea and it is trite proposition of law that witnesses might lie,
but the circumstances would not lie. Had really the first defendant gave birth
to one other son and that one another son died, then he would have set out those
facts in the written statement itself, but after nine years of the filing of the
suit by the plaintiff, by way of additional written statement, such a plea was
put forth purely to get over the said legal obstacle. Hence, it is clear that
as per the then existed Hindu Law during the year 1954, there could not have
been no valid adoption of the plaintiff by S.S.Viswanathan. The unassailable
fact remains that even though the suit was filed in the year 1994 and the
written statement had been already filed by the first defendant, yet in the
additional written statement filed on 16.12.2003 so to say, nine years after the
filing of the suit, a new theory had been put forth by the first defendant as
though he gave birth to a second son even before allegedly giving in adoption
his first son, the plaintiff in favour of S.S.Viswanathan and that the second
child died during the year 1954. As such, blatantly and explicitly, it is
clear, in the absence of any iota or shred of evidence, that the first
defendant’s theory of he having had a second son is turned out to be an utter
falsehood.
59. Furthermore, the learned Counsel for the plaintiff by drawing the
attention of this Court to the deposition of D.W.3, Jegatheesa Ayyangar, would
develop his argument that, D.W.3 uttered out falsehood. D.W.3, in the chief
examination would state that during the year 1956, the said alleged adoption
took place and that he was accompanying his father to Bangalore in connection
with the performance of the rituals relating to such adoption. Whereas it is
the case of the plaintiff that the alleged adoption was during January 1954.
60. It is also pertinent to note that there were three near relatives who
were very much alive at the time of the trial, but they were not chosen to be
examined to speak about the alleged adoption for the reasons best known to the
first defendant. Absolutely, there is no evidence to prove the alleged
adoption.
61. It is a trite proposition of law that the adoption should be proved by
adducing clear evidence. In this connection, I would like to refer to the
decision of the Honourable Apex Court in Pentakota Satyanarayana v. Pentakota
Seetharatnam reported in (2005) 8 Supreme Court Cases 67. An excerpt from it,
would run thus:
“35. We have already referred to the arguments advanced by both sides on
adoption. Our attention was drawn to the findings recorded by the trial Court
and by the High Court on this aspect and the relevant portion of the oral and
documentary evidence was also relied on by both sides. The evidence relied upon
is that of PWs 1, 3 and 6, DW 2 and DW 3. Their evidence, in our opinion, falls
short of the required proof in law. The respondents, in our view, have a heavy
onus to discharge, the burden lies on them to prove the factum of adoption.
Krishna Bhagavan, the respondent herein seeks to exclude the natural line of
succession to the property by alleging adoption. The instant case is a classic
example where the alleged adoptive father himself filed a written statement
denying adoption. This apart, the following circumstances negate the
genuineness of the adoption. This Court in the case of Rahasa Pandiani v.
Gokulananda Panda [(1987) 2 SCC 338] held as under:
“An adoption would divert the normal and natural course of succession.
Therefore the Court has to be extremely alert and vigilant to practices out of
their lust for property. If there are any suspicious circumstances, just as the
propounder of the Will is obliged to dispel the cloud of suspicion, the burden
is on one who claims to have been adopted to dispel the same beyond reasonable
doubt. In the case of an adoption which is claimed on the basis of oral
evidence and is not supported by a registered document or any other evidence of
a clinching nature, if there exist suspicious circumstances, the same must be
explained to the satisfaction of the conscience of the Court by the party
contending that there was such an adoption.(Para 4)”
36. This Court held in Kishori Lal v. Chaltibai [1959 Supp (1) SCR 698 :
AIR 1959 SC 504]. We can do no better than to quote the relevant passage from
the above judgment which reads as under:
“As an adoption results in changing the course of succession, depriving
wives and daughters of their rights and transferring properties to comparative
strangers or more remote relations it is necessary that the evidence to support
it should be such that it is free from all suspicion of fraud and so consistent
and probable as to leave no occasion for doubting its truth. Failure to produce
accounts, in circumstances such as have been proved in the present case, would
be a very suspicious circumstance. The importance of accounts was emphasised by
the Privy Council in Sootrugun v. Sabitra {(1834) 2 Knapp 287 : 12 ER 489]; in
Diwakar Rao v. Chandanlal Rao [ILR (1917) 44 Cal 201 : AIR 1916 PC 81]; in
Kishori Lal v. Chuni Lal [(1908) 36 IA 9 : ILR (1908) 1931 All 116]; in Lal
Kunwar v. Chiranji Lal [(1909) 37 IA 1 : ILR (1909) 1932 All 104] and in
Padmalav Achariya v. Fakira Debya [AIR 1931 PC 84 : 35 CWN 465].
62. The aforesaid decision would clearly highlight as on whom the burden
lies and how, when the plea of adoption is taken so as to divert the right to
the claim over the property is taken, the Court should be careful in
scrutinising the evidence. Here, the first defendant has taken the plea of
adoption purely for the purpose of depriving his only son, the plaintiff, of his
share in the suit properties.
63. During arguments, it transpired that the father sold indiscriminately
most of the suit properties so as to deprive the son and his act of selling even
continued during the Court proceedings.
64. The learned Counsel for the first defendant would develop his argument
as though owing to lapse of time, the Court cannot expect much more a better
evidence than what was adduced before the trial Court. Any piece of evidence
cannot be treated as reliable evidence for recording a finding that there was
adoption. The first defendant’s own admission both at the time of deposing
before the Court during the cross-examination and also his own commitments in
various documents as set out supra, would falsify his plea of adoption. Simply
because, in some documents, the plaintiff’s initials are ‘S.V’, there is no
presumption of adoption. Furthermore, legally also, there could not have been
any adoption in view of the then existed law as discussed supra. Hence, in this
view of the matter, it is clear that the trial Court’s finding that there was no
adoption is proper. But, the first appellate Court’s finding that there is
adoption, is totally based on misreading of the evidence as well as
misapplication of law and that alone lead to the first appellate Court’s
perverse conclusion. Accordingly, the point is decided.
65. In this view of the matter, the Civil Miscellaneous Appeal has to be
allowed as there is no necessity for remand.
66. The cross appeal has been focussed by the first defendant as against
the order of the first appellate Court in giving a finding that Section 12 of
the Hindu Adoption and Maintenance Act, is applicable. In view of my finding
that there was no adoption at all, the question of invoking Section 12 of the
Act does not arise. For the purpose of comprehensively deciding this matter, I
would like to refer to Section 12 of the Hindu Adoption and Maintenance Act and
it has got only prospective effect and not retrospective effect. Had really
there been any adoption as claimed in the year 1954, so to say, before the
commencement of Hindu Adoption Amendment Act 79 of 1956, there would not have
been divesting of the plaintiff’s right in the natural family and by virtue of
Section 12 of the Act, such divested right could not have got revested on him.
67. The learned Counsel for the plaintiff cited the following decisions
relating to vesting and divesting as under:
(i) Mahableshwar Narayanbhat v. Subramanya Shivram reported in 72 IC 309.
(ii) Shyama Charan v. Sricharan reported in A.I.R 1929 Calcutta 337.
(iii) Rakhalraj Mondal and another v. Debendra Nath reported in A.I.R (35)
1948 Calcutta 356.
(iv) V.K.R.N.S.M.Subramanian v. V.K.R.N.P.S.S.M.Somasundaram Chettiar
reported in 1937 I M.L.J 60.
In view of my findings supra, the aforesaid decisions are all not germane for
adjudicating the cause.
68. There are catena of decisions to the effect that by birth itself,
coparceners get vested right to a share, the quantum of which may be uncertain
depending upon the number of coparceners and at the time of partition, the exact
share would get crystallised. However, adoption would divest the adopted son
from claiming share. This is a clear settled proposition of law in view of the
earlier decisions.
69. However, in this case, since there was no adoption, the question of
the plaintiff getting divested of his right in the coparcenery property which
belongs to the defendant, does not arise.
70. The learned Counsel for the first defendant cited the following
decisions:
(a) Chandan Bilasini v. Aftabuddin Khan reported in AIR 1996 SUPREME COURT
591.
The aforesaid decision is not relating to this case for the reason that in the
said case, ample evidence was adduced relating to adoption and in view of
factual circumstances, the Honourable Apex Court held that non-examination of
other witnesses was not material. However, in this case, as already cited
supra, there is absolutely no evidence worth the name and that in the wake of
contrary evidence available on the plaintiff’s side that there could not be any
partition.
(b) V.V.Ramarao v. K.Bhaskararao reported in (1969) 2 M.L.J 105 (SC).
The decision cited supra is not relevant to this case as the evidence on record
shows that there is contrary evidence to the plea of adoption and in such a
case, the question of presumption does not arise.
(c)Seetharama Chandra Row v. Krishna Row reported in 1925 Privy Council
201.
The above said decision is on the point relating to presuming the right of
the widow to adopt his son and in the said case, the widow brought up the boy
concerned from his boyhood to manhood and nearly forty years, he was treated as
the adopted son and in that context, the aforesaid decision emerged which is
having no relevance to this case and it is quite obvious.
71. The learned Counsel for the first defendant further cited the
following decisions:
(i) Chandra v. Mt.Raj Kunwar reported in A.I.R 1926 Privy Council 91.
(ii)Tewari Raghuraj v. Subhadra Kunwar reported in AIR 1928 Privy Council
87.
(iii) Harihar Pratap v. Bajrang Bahadur reported in A.I.R 1937 Privy
Council 242.
(iv) Neelawa v. Gurshiddappa reported in AIR 1937 Bombay 169.
(v) Debi Prasad v. Tribeni Devi reported in AIR 1970 SUPREME COURT 1288.
(vi) Y.K.Nalavade v. Ananda G.Chavan reported in AIR 1981 Bombay 109.
(vii) Vasant v. Dattu reported in AIR 1987 SUPREME COURT 398.
(viii) Ashoka Sa v. Bidyadhar Patra reported in AIR 1995 ORISSA 59.
(ix) Daniraiji Vrajlalji v. Chandraprabha reported in AIR 1975 SUPREME
COURT 784.
72. I have carefully gone through the aforesaid decisions and in view of
my discussions supra, these decisions are not germane for adjudicating the
second appeal.
73. As such, ultimately, I am of the considered opinion that the plaintiff
is having equal right in the suit properties which are the coparcenary
properties of the plaintiff and the first defendant. The purchasers of the
property from the first defendant can only step into the shoes of the first
defendant’s right and seek their equities during the final decree proceedings
and the same will have to be processed as per law by the lower Court.
74. In the result, S.A.No.542 of 2006 and C.M.A.No.251 of 2006 filed by
the plaintiff are allowed and the Cross Objection filed by the first defendant
is disposed of. Accordingly, the plaintiff is entitled to half share in the
profits which accrued from the suit properties from the date of suit till the
date of delivery of possession after dividing the suit properties by metes and
bounds and in that connection, the first defendant is bound to render accounts
and during final decree proceedings, separate enquiry under Order 20 Rule 12
C.P.C shall be conducted in that regard. Consequently, connected Miscellaneous
Petitions are closed. The parties shall bear their respective costs.
rsb
To
1.The Principal District Judge, Madurai.
2.The I Additional Subordinate Judge, Madurai.