IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.3.2011
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.1610 of 2008
Cross Obj.No.9 of 2011
and
M.P.Nos.1 to 3 of
S.Rathinasababathy ... Appellant in S.A.No.1610 of 2008
.. Respondent in Cross Objection No.9 of 2011
vs.
1.S.Gajaganapathy ...1st respondent in S.A.No.1016 of 2008
Cross-objector in
Cross-objection No.9
of 2011
2.Hemalatha
3.Gajalakshmi
4.Mangayarkarasi
5.Ranganayagi
6.Mala
7.Singaravel
8.R.Manian
9.Vijakumar
10.Vijaya
11.Usha Ammal
12.Kuttyammal
13.Rajeswari
14.Lalitha
15.Kuttyappan
16.Kanniappan
17.Karuppaiah
18.Thiripurasundari
19.Jyothiamani
20.Shankar
21.Swaminathan
22.Thilagavathy
23.Nagavalli .... Respondents 2 to 23
in S.A.No.1610 of 2008
The second appeal and the cross-objection are filed against the judgement and decree dated 24.1.2008 passed by the VI Additional Judge, City Civil Court, Chennai, in A.S.No.251 of 2006 reversing the judgement and decree dated 23.10.2002 passed by the XIII Assistant Judge, City Civil Court, Chennai, in O.S.No.12148 of 1989, by the respective parties.
For Appellant : Mr.G.Rajagopal,Sr.counsel for
Mr.K.Simeon and A.jayachandran
for appellant in S.A.
and for the respondent in the
Cross-objection
For Respondents : Mr.A.Venkatesan for R1 in S.A. and
for the Cross-objector in Cross-objection
Mr.A.R.Nixon for RR2 to 15, 17, 19,
21 to 23
Mr.K.P.Chandrasekaran for RR9 and 16
in the second appeal
No appearance for R18 and R20
JUDGMENT
The second appeal and the cross-objection are focussed by the plaintiff and D26, respectively, inveighing the judgement and decree dated 24.1.2008 passed by the VI Additional Judge, City Civil Court, Chennai, in A.S.No.251 of 2006 reversing the judgement and decree dated 23.10.2002 passed by the XIII Assistant Judge, City Civil Court, Chennai, in O.S.No.12148 of 1989, which was filed for partition.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. Narratively but precisely, broadly but briefly the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
(a) The appellant herein, as plaintiff filed the suit seeking the following reliefs:
“To pass a judgement and decree against the defendants:
(1) directing division of the suit property into twelve equal shares by metes and bounds;
(2) for allotment of separate possession of 11 shares to the plaintiff;
(3) directing 1/12th share of the 1st defendant over the suit property to the plaintiff for Rs.1273/- and 1/3 under section 9 of the Partition Act;
(4) for appointment of a Commissioner to effect partition of the suit property by metes and bounds and for sale of the 1/12th share of the 1st defendant to the plaintiff;
(5) for costs of the suit." (extracted as such) (b) Written statements were filed separately by D1 , D2 and D3, D4 to D7, D23, D24 and D26 resisting the suit. Whereupon, the trial Court framed the issues. (c) The plaintiff examined himself as P.W.1 and Exs.A1 to A20 were marked. On the defendants side, D26 and D22 examined themselves as D.W.1 and D.W.2 along with D.W.3 and marked Exs.B1 to B11. (d) Ultimately, the trial Court decreed the suit to the effect that the plaintiff was entitled to 11/12th share and the deceased D1-Arumugham was entitled to 1/12th share, in the suit properties.
(e) Being aggrieved by and dissatisfied with the same, D26-the biological son of D1, filed the appeal. Whereupon, the first appellate Court reversed the judgement and decree of the trial Court and allotted half share to the plaintiff and half share to the deceased D1 and correspondingly, the legal heirs of D1 were allowed to get the share of the deceased D1.
4. Challenging and impugning the judgement and decree of the first appellate Court, the plaintiff filed the second appeal on various grounds, suggesting the following substantial questions of law.
“(1) Has not the first appellate Court erred in partly reversing the decree of the trial Court by holding that Shanmuga Sundaram is absolute owner of the property, when the respondents/defendants have not filed any documentary evidence to prove the same?
(2) Has not the first appellate Court erred in granting a relief merely basing on Ex.B1 the Certified copy of Charge decree said to have executed by the deceased Shanmuga Sundaram in which other co-owners are not parties?
(3) Has not the first appellate Court erred in reversing decree passed by the trial Court by over looking Ex.A5 and A6 the Release Deed executed by other co-owners in favour of the appellant by relinquishing their share?
(4) Has not the first appellate Court erred in reversing the decree passed by the trial Court over looking the principle that possession by one co-owner shall deemed joint possession by the other co-owners?”
(extracted as such)
5. Whereas, D26 filed the cross-appeal challenging the lower Courts’ finding, which was to the effect he was not the adopted son of Rathinasabapathy. However, D26 would contend that he is the adopted son of the plaintiff-Rathinasabapathy.
6. At this juncture, I would like to point out that earlier, the second appeal papers were got misplaced and they could not be traced. Whereupon my learned predecessor ordered for reconstruction and it is before me along with the original lower Court’s records which are intact.
7. On both sides, they would state that certain substantial questions of law were framed earlier, but those are not available and both sides in unison would state that this Court has got ample powers to frame fresh substantial questions of law and decide the matter.
8. Both sides submitted their arguments.
9. The gist and kernal, the pith and marrow of the arguments as put forth on the side of the plaintiff, placing reliance on the grounds of second appeal, would run thus:
(i) The first appellate Court failed to take into consideration the fact that the suit properties originally belonged to one Veerammal, who died in the year 1916, issueless. Consequently, her only brother Singaravelu inherited the properties.
(ii) Singaravelu had three sons, namely, Angamuthy, Shanmugasundaram and Mayandi.
(iii) Angamuthy died in the year 1942 and he had one son by name Ramachandran-D2 herein. Mayandi-the son of Singaravelu died in the year 1970 leaving behind his son D3-Kuppusamy.
(iv) The plaintiff-Rathinasabapathy, the deceased D1-Arumugham and D4-Sivagamasundariammal are the sons and daughter of the said Shanmugasundaram. One other son of Shanmugasundaram, namely, Singaravel died in the year 1972, leaving behind D5, D6 and D7.
(v) The aforesaid genealogy is an undisputed one.
(vi) The plaintiff-Rathinasabapathy purchased the shares of Ramachandran, Singaravel and others, except the share of D1-Arumugham and accordingly, the trial Court correctly decided the case, allotting 11/12th share in favour of the plaintiff and 1/12th share in favour of D1, which the D1’s legal heirs are expected to take.
(vii) The first appellate Court in the judgement, without referring to any of the salient features, simply held as though the properties should be divided into two halves and accordingly, allotted one half to the plaintiff and the other half share to D1.
(viii) The suit properties cannot be described as Hindu joint family properties, because, from a female, namely, Veerammal, her brother Singaraveli-the propositus of the parties, inherited the suit properties, as per the old Hindu Law and retained them; whereby, Singaravelu was deemed to be the absolute owner of those properties, which were as per Hindu Law teated as his self-acquired properties. Consequently, on his death, his heirs inherited those properties. took them. In such a case, the question of treating the suit properties as joint family properties does not arise. But the first appellate Court failed to apply the correct proposition of law in deciding the case.
(ix) D26 cannot be treated as the adopted son of Rathinasabapathy for the reason that no such adoption was proved. The ceremony relating to adoption was also not found set out in the written statement and that was not proved. Hence, the judgement of the first appellate Court allotting half share to the plaintiff-Rathinasabapathy and half share to D1-Arumugham is erroneous and it is liable to be set aside and the judgement of the trial Court has to be restored.
10. Piloting the arguments on the side of R26/D26 in the main second appeal and the cross-objector in the cross-appeal, the learned counsel would advance his arguments, the wrap and woof of them would run thus:
(a) The advocate, who was appearing for the plaintiff in the first appellate Court clearly and categorically argued, by describing the suit properties as the Hindu joint family properties and in such a case, absolutely there is no rhyme or reason on the part of the plaintiff to contend before this Court as though the plaintiff did not admit the suit properties as the Hindu joint family properties.
(b) Even though Veerammal was the original owner of the suit properties, yet Singaravelu, on inheriting the same from Veerammal, along with his sons and grandsons, treated the suit properties as the joint family properties.
(c) The said Angamuthu as well as Mayandi left the family long ago. Only Shanmugasundaram, as revealed by Ex.B1-furnished security to the High Court in a particular proceeding and thereby, he projected himself as the absolute owner of the suit properties. Consequently, Rathinasabapathy, Arumugham and Singaravel and their male heirs-being the descendants of Shanmugasundaram were entitled to the suit properties as coparceners. In such a case, the question of getting release deed by Rathinasabapathy in his favour, from the heirs of Angamuthy and Mayandi does not arise at all.
(d) Once the properties are found to be the Hindu joint family properties, the question of heirs of Angamuthu or Mayandi or any other heirs or descendants of Shanmugasundaram, relinquishing or releasing their shares in those properties in favour of Rathinasabapathy alone could not be countenanced because such alleged relinquishment or release by others would enure to the benefit of all other coparceners in general.
(e) The first appellate Court correctly allotted half share to Rathinasabapathy and half share to the deceased D1-Arumugham, warranting no interference in second appeal.
(f) Both the Courts below failed to appreciate the evidence properly even though D26 is the adopted son of Rathinasabapaty. Once Rathinasabapathy is held to be the coparcener, then whatever share Rathinasabapathy would be getting should be further shared by him with his adopted son-D26.
(g) This Court, on the CD (Ex.B6) being displayed before it, in the presence of both sides, clearly noted that Rathinasabapathy himself, at the time of marriage of D26, unambiguously and unequivocally, in the presence of the gathering there, declared that D26 is his adopted son and the trial Court as well as the first appellate Court failed to take note of the same and they were wrong in holding as though Ex.B6-the CD did not contain such version and that only the other speakers referred D26 as the adopted son of Rathinasabapathy.
Accordingly, the learned counsel for D26 would pray for dismissal of the main second appeal and for allowing the cross-appeal of D26 and for upholding the half share each allotted by the first appellate Court in favour of the plaintiff and D1, with the modification that D26 is entitled to half share in the half share of the plaintiff.
11. After hearing both sides, the following substantial questions of law do emerge for consideration.
“(i) Whether the suit properties are to be treated as the Hindu joint family properties or the self-acquired properties of Singaravelu, and whether the first appellate Court properly appreciated the evidence and treated the suit properties as the Hindu joint family properties, despite the admitted factual position that Veerammal was the original owner of the suit properties; from whom her brother Singaravelu inherited the same? and that there is no evidence to establish that those properties were treated as Hindu joint family properties?
(ii) Whether both the Courts below were justified in rejecting the plea of adoption as put forth by D26 in the wake of oral and documentary evidence, including the CD-Ex.B6?
(iii) Whether there is any perversity or illegality in the judgements and decrees rendered by both the Courts below?
12. Substantial Question of law (i): I would like to fumigate my mind with the following decisions of the Honourable Apex Court:
(i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus:
“19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression “substantial question of law” is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
………….
22. In Hero Vinoth v. Seshammal, this Court has observed that : (SCC p.556, para 24)
“(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”
(ii) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL;
(iii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iv) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYA.
A bare perusal of the above precedents would exemplify and demonstrate that if there is any perversity or illegality or when there is mistake on the part of the Courts below in mis-reading of evidence or misapplication of law or not entertaining any evidence, the High Court has to necessarily interfere.
13. The ungainsayable genealogy as found exemplified and demonstrated from the records would run thus:
(i) Veerammal’s brother is Singaravelu, who had three sons, namely, Angamuthu, Shanmugasundaram and Mayandi. Ramachandran-D2 is the son of Angamuthu. The plaintiff-Rathinasabapathy, D1-Arumugham, Singaravel, D4-Sivagamasundari are the children of Shanmugasundaram. Kuppusamy-D3 is the son of said Mayandi.
(ii) Singaravelu, Angamuthu, Shanmugasundaram, Mayandi all died during the year 1928, 1942, 1956 and 1970 respectively.
(iii) Pendente lite, Arumugham-D1 died, leaving behind his wife widow-D22 and his biological children-D23 to . D2-Ramachandran died leaving behind D8 to D12 as his legal heirs. D3-Kuppusamy died leaving behind his legal heirs D15 to D21. D4-Sivagasundari died leaving behind her legal heirs D13 and D14.
14. At the outset itself I would like to point out that in the plaint there is nothing to indicate or exemplify, demonstrate or display that the plaintiff described the suit properties as the joint family properties. However, the defendant No.1 and D26 would try to project the properties as the Hindu joint family properties.
15. On the side of the plaintiff the following decisions are found referred to:
(i) CDJ 1937 Privy counsel 60-MUHAMMAD HUSAIN KHAN AND OTHERS V. BABU KISHVA NANDAN SAHAI, certain excerpts from it would run thus:
“(3) But the matter is of considerable practical importance and their Lordships think that it should not be left in a state of uncertainty.
The learned counsel for the appellants argues that the property inherited by a daughter’s son from his maternal grand-father is ancestral property, and he relies, in support of his arguement, upon the expression “ancestral property” as used in the judgment of this Board in 29 IA 156, (4) in describing the property which had descended from the maternal grandfather to his two grandsons. It is to be observed that the grandsons referred to in that case were the sons of a daughter of the propositus, and constituted a coparcenary with right of survivorship. On the death of their mother they succeeded to the estate of their maternal grandfather, and continued to be joint in e state until one of the brothers died. Thereupon, the widow of the deceased brother claimed to recovder a moiety of the estate from the surviving brother. The question formulated by the Board for decision was whether the property of the maternal grandfather descended, on the death of his daughter, to her two sons jointly with benefit of survivorship, or in common without benefit of survivorship. This was the only point of law which was argued before their Lordships, and it does not appear that it was contrended that the estate was ancestral in the restricted sense in which the term is used in the Hindu law. Their Lordships decided that the esteate was governed by the rule of survivorship, and the claim of the widow was, therefore, negatived. The brothers took the estate of their maternal grandfather at the same time and by the same title, and there was apparently no reason why they should not hold that estate in the same manner as they held their other joint property. The rule of survivorship, which admittedly governed their other kproperty was held to apply also to the estate which had come to them from their maternal grandfather. In these circumstances it was unnecessary to express any opinion upon the abstract question of whether the property, which a daughter’s son inherits from his maternal grandfather, is ancestral property in the technical sense that his son acquires therein by birth an interest jointly with him. This question was neither raised by the parties nor determined by the Board. It appears that the phrase “ancestral property”, upon which reliance is placed on behalf of the appellants, was used in its ordinary meaning, namely, property which devolves upon a person from his ancestor, and not in the restricted sense of the Hindu Law which imports the idea of the acquisition of interest on birth by a son jointly with his father.
There are, on the other hand, observations in a later judgment of the Board in 35 IA 206(5) which are pertinent here. It was stated in that judgment that unless the lands came “by descent from a lineal male ancestor in the male line, they are not deemed ancestral in Hindu law”. This case, however, related to the property which came from male collaterals and not from maternal grandfather; and it was governed “by the custom of the Punjab”:, but it was not suggested that the custom differed from the Hindu law on the issue before their Lordships. The rule of Hindu law is well-settled that the property which a man inherits from any of his three immediate paternal ancestors, namely his father, father’s father and father’s father’s father is ancestral property as regards his male issue, and his son acquires jointly with him an interest in it by birth. Such property is held by him in coparcenary with his male issue, and the doctrine of survivorship applies to it. But the question raised by this appeal, is whether the son acquires by birth an interest jointly with his fatherh in the estate, which the latter inherits from his maternal grandfather. Now, Vijnanesvara, the author of Mitakshara, expressly limits such right by birth to an estate which is paternal or grand-paternal. It is true that Colebrooke’s translation of the 27th sloka of the first section of the chapter of Mitakshara, which deals with inheritance is as follows: “It is a settled point that property in the paternal or ancestral estate is by birth:. But Colebrooke apparently used the word ‘ancestral’ to denote grand-paternal, and did not intend to mean that in the estate, which devolves upon a person from his male ancestor in the maternal line, his son acquires an interest by birth. The original test of the Mitakshara shows that the word used by “Vijnanesvara, which has been translated by Colebrooke as ‘ancestral’ is paitamaha which means belonging to pitamaha. Now, pitamaha ordinarily means father’s father, and though it is sometimes used to include any paternal male ancestor of the father, it does not mean a maternal male ancestor.
Indeed, there are other passages in Mitakshara which show that it is the property of the paternal grandfather in which the son acquires by birth an interest jointly with, and equal to that of his father. For instance, in the 5th sloka of the fifth section of the first chapter, it is laid down that in the property which was acquired by the paternal grandfather ……………..the ownership of father and Bon is notorious; and therefore partition does take place. For, or because the right is equal, or alike therefore partition is not restricted to be made by the father’s choice, nor has he a double share.
Now, this is the translation of the sloka by Colebrooke himself, and it is significant that the Sanskrit word which is translated by him as ‘paternal grandfather’, is pitamaha.
There can therefore be no doubt that the expression ancestral estate’ used by Colebrooke in translating the 27th sloka of the first section of the first chapter was intended to mean grand-paternal estate. The word ‘ancestor’ in its ordinary meaning includes an ascendent in the maternal, as well as the paternal, line; but the ‘ancestral’ estate in which under the Hindu Law, a son acquires jointly with his father an interest by birth must be confined, as shown by the original text of the Mitakshara, to the property descending to the father from his male ancestor in the male line. The expression has sometimes been used in its ordinary sense, and that use has been the cause of misunderstanding. The estate which was inherited by Ganesh Prasad from his maternal grandfather cannot in their Lordships’ opinion be held to be ancestral property in which his son had an interest jointly with him. Ganesh Prasad consequently had full power of disposal over that estate, and the devise made by him in favour of his daughter-in-law, Giri Bala, could not be challenged by his son or any other person. On the death of her husband, the devise in her favour came into operation and she became the absolute owner of the village Kalinjar Tirhati, as of the remaining estate; and the sale of that village in execution proceedings against her husband could not adversely affect her title. For the reasons above stated, their Lordships are of opinion that the decree of the High Court should be affirmed, and this appeal should be dismissed with costs. They will humbly advise His Majesty accordingly.”
(ii) AIR 1930 Madras 662 C.SANKARANARAYANA MUDALIAR V. TANGARATNA MUDALIAR AND OTHERS.
(ii) AIR 1938 Madras 841- C.V.VYTHIANATHA IYER V. C.V.VARADARAJA IYER AND OTHERS.
16. On the side of D26 the following decisions are cited:
(i) (2010) 2 CTC 198 NATARAJAN V. PARAMASIVAM, certain excerpts from it would run thus:
“13. It is pertinent to note that the suit property is not a joint family property. It is a separate property, since the vendor of the appellant-plaintiff and the vendor of the respondent-defendant succeeded to the property on the maternal side. Any property derived or inherited from the female line or through the maternal grandparents are collateral and cannot be termed as the character of joint family. So, the suit property is not joint family property. Moreover, there is no evidence to show that the suit property, an extent of 353 sq.m. = 5 cents in Re-Survey No.74/6 comprised in house-site patta No.67, situated in Arasalpuram Village in Villupuram Taluk, has been joint family property. As already stated, as per Ex.B2, the suit property has been settled in favour of Valliammal. So, the suit property is only a separate property of Valliammal and so, the four brothers, as heirs, inherited the property from their mother and so, it is not the joint family property. The burden is upon the appellant-plaintiff to prove that the property is joint family property, but he has not let in any oral evidence, except the ipse-dixit of the appellant-plaintiff and the vendor has not been examined before this Court. So, I am of the opinion that the suit property is a separate property of the vendor of both the appellant-plaintiff and the respondent-defendant.
(ii) AIR 2001 SUPREME COURT 386 GAYA DIN (D) THROUGH L.Rs AND OTHERS, V. HANUMAN PRASAD (D) THROUGH L.Rs.and others, an excerpt from it would run thus:
“(A) U.P.Consolidation of Holdings Act (5 of 1954), S.48 (as amended) Revisional powers Scope Findings recorded by settlement officer consolidation that family was joint and that the Khatas were maintained in names of members of different branches of family Not perverse or contrary to evidence cannot be interfered with by Deputy Director in revision, merely on grounds that he arrived at different conclusion.”
(iii) 1996(I) CTC 513 P.PERIASAMI (DEAD) LRS.VS. P.PERIATHAMBI AND OTHERS, certain excerpts from it would run thus:
“5. In view of the interpretation put by the Full Bench of the Madras High Court that the sons in such a situation would get self-acquired property of their father by inheritance, having the status as tenants -in-common, they could not thus treat such properties in their hands, even though joint in enjoyment, as joint Hindu Family properties. Likewise the income derived therefrom, if employed to purchase other property, would not cloak the new acquisition with the character of joint Hindu Family property but may otherwise be joint properties. We would rather decide this matter on this principle, and we do so accordingly, to hold that the properties which came from the elder, self-acquired as they were, and there being no grandsons, cannot be held by the parties to be joint Hindu family properties but as joint properties simpliciter, capable of partition on that basis.
6. With regard to the accreted property, there is a reference in the judgment under appeal relating to some accounting; after recording the finding that the defendants have failed to prove that property was in their adverse possession. This is a finding of fact which need not be disturbed, as it has been sought to, in the cross appeal. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The failure of the plea has obvious results. If the parties herein were co-owners of that property and the said property had been purchased from the income derived from joint property, then obviously the same has to be accounted for as joint property and not as joint Hindu Family Property. It was like property jointly purchased by co-owners without attracting the rule of succession by way of survivorship. On this clarification, the judgment of the High Court is cleansed of the little vagueness about this particular which accidentally seems to have crept in while dealing with this aspect of the case.
7. For what we have said above, it is plain that the property in possession of these two branches of the family, sought to be partitioned, was not Joint Hindu Family Property because the three sons obtained it by inheritance from their father, the last elder and their status was that of tenants-in-common and if the accretions to the property had been made out of the income of the joint property then these were accountable, as held by the High Court but that aspect would have to be decided before the passing of the final decree.
17. I would for myself like to refer to the following decision of this Court:
AIR 1994 Madras 123 M.SHANMUGHA UDAYAR V. SIVANANDAM AND OTHERS, an excerpt from it would run thus:
“15. . . . . . . Property inherited by a person from any female is his separate property and his male issues do not take any interest in it by birth. . . . . . . . . . ”
A mere perusal of those decisions would unambiguously and unequivocally highlight and convey that in order to treat a property as Hindu joint family property or a coparcenary property, the origin should be from a male, but if the property is inherited by a male from a female, then ex facie and prima facie it cannot be termed as Hindu joint family property, and it could only be treated as the self-acquired property of the inheritor and it is clear from the aforesaid decisions.
18. Only D1 and D26 contended that the suit properties are the Hindu joint family properties and the burden is on them to prove that those properties were treated as Hindu joint family properties and that those properties were put into the common hotchpot or pot-pourri.
19. I recollect the following maxims:
(i) Affirmatis est probare He who affirms must prove.
(ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.
The above maxims would indicate that the burden is on the person who affirms a fact to prove it.
20. However, the learned counsel for D26 would submit that before the trial Court as well as the first appellate Court the matter was not got processed by the plaintiff on the line that the property was inherited from a female relative, namely, Veerammal, by Singaravelu and that the properties remained as the self-acquired properties and till the filing of the suit, all the legal heirs of Singaravelu treated them as Singaravelu’s self-acquired properties and accordingly dealt with the same. According to the learned counsel, had the plaintiff projected his case in that fashion, then D1 and D26 might have had the opportunity of adducing evidence in a more clinching manner that the suit properties were treated as the Hindu joint family properties.
21. Whereas, the learned counsel for the plaintiff would submit that the facts narrated in the plaint would unambiguously and unequivocally, pellucidly and palpably exemplify and expatiate that the suit properties were inherited by Singaravelu from Veerammal and Singaravelu’s heirs were entitled to the properties as the legal heirs of Singaravelu, and the plaintiff never described the suit properties as the Hindu joint family properties and in such a case, D26 cannot raise his accusative finger as against the way the plaintiff is now puttingforth the case before the High Court.
22. I would like to point out that since the onus of proof was on D1 and D26 to prove that the suit properties are the joint family properties, it was for them to adduce, if at all they had any evidence, that those properties were treated as the Hindu joint family properties and that those properties were blended or mixed with other properties of Hindu joint family or those properties were brought into the Hindu joint family or coparcenary.
23. The learned counsel for D26 would correctly highlight the point that to constitute a coparcenary or Hindu joint family, there need not be any joint property at all; even without any property there can be a coparcenary or joint family.
24. While agreeing with the proposition as put forth by the learned counsel for D26, I would hasten to add that law, as enunciated supra, clearly and categorically envisages that such self-acquired property of a male should be proved to have been put into the common hotchpot or pot pourri or treated as the Hindu joint family property, as otherwise, simply because one of the members of the coparcenary or Hindu joint family, acquires some self-acquired property, it cannot be presumed that the said property was treated as the Hindu joint family property.
25. The distinction highlighted by me supra is a realistic one. The contention raised on the side of D26 that the plaintiff did not project the case properly before the trial Court in the manner that they are projecting before this Court, is neither here nor there, because the plaint itself is clear to the effect that the properties were inherited by Singaravelu from Verrammal wherefore and they were the self-acquired properties of Singaravelu, and accordingly the narration proceeded in the plaint is in support of the prayer in the last paragraph of it.
26. No doubt, in the first appellate Court judgement, the learned Judge, while narrating the arguments of the learned counsel for the plaintiff would observe that the said advocate argued as though the suit properties are the Hindu joint family properties, for which, the learned Senior counsel for the plaintiff would argue, by expounding and explaining that simply because loosely the term ‘Hindu joint family’ or ancestral property was used by the advocate concerned during arguements, the same cannot be used to mulct the plaintiff, in the absence of any pleading or evidence.
27. I would like to agree with the submission made by the learned Senior counsel for the plaintiff that when the consistent case of the plaintiff before the trial Court as well as the first appellate Court was that the properties are the self-acquired properties of Singaravelu, because he got them from his sister Veerammal, the question of simply treating the suit properties as Hindu joint family properties does not arise, on the sole ground that the learned advocate, who appeared for the plaintiff in the first appellate Court unwittingly used the word ‘Hindu joint family property’.
28. A judgement of a Court should be based on sound reasons and not on mere technicalities, which are handmaids of justice. Cutting across the punctilious of Court procedure, the matter has to be viewed and the Court should not allow itself to be assailed by technicalities.
29. Ex.A4 dated 20.8.1930 was a lawyer’s notice issued by Angamuthu, seeking partition of the suit properties as against Shanmugasundaram and Mayandi and in such a case, it is clear that Angamuthu asserted his 1/3rd share in the suit properties even in the year 1930. I hark back to the maxim “In re dubia magis infitiatio quam affirmatio intelligenda’ In a doubtful matter, the negxcgfation is to be understood rather than the affirmation. As such the affirmative statement of D1 and D26 that the properties were put into the common hotchpot cannot be presumed in view of absence of evidence in that regard.
30. There is nothing to indicate that Angamuthu left the family once and for all or abandoned his right over the suit properties. Similarly there is nothing to indicate that Mayandi once and for all relinquished his right or abandoned his right over the suit properties. Ex.B1 is a unilateral document executed by Shanmugasundaram and it could not be pitted against the rights of Angamuthu or Mayandi or their legal heirs. Had Angamuthu and Mayandi been parties to a particular document, then whatever contained in that document would be binding on them. Simply because Shanmugasundaram described himself as the owner of the suit properties in Ex.B1, it cannot be conclusively held that the suit properties happened to be the exclusive properties of Shanmugasundaram, to the exclusion of Angamuthu and Mayandi.
31. The learned counsel for D26 also would contend that by virtue of Ex.B1, ouster can be presumed, for which, the learned counsel for the plaintiff would submit that ouster is a plea, which should have been pleaded and proved and it cannot be presumed.
32. I would like to agree with the proposition as put forth by the learned Senior counsel for the plaintiff because ouster should not normally be presumed, unless it is specifically pleaded and proved by adducing clinching evidence.
33. I recollect at this juncture the decision of the Honourable Apex Court reported in 2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others) certain excerpts from it would run thus:
“5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; City of Rock Springs v. Sturm.)
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off ones right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p.81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
8. Also See Privy Council’s decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) (1997) Ac 38 in this regard.
9. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially wilful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
10. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard.
New consideration in adverse possession law
11. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham made the following reference:
Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.
14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.
21. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Govt. of India in the following terms: (SCC p.785, para 11)
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
22. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.
32. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p.1256, para 5)
Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.” (emphasis supplied)
A mere perusal of the above precedent would spotlight and indicate that ouster and adverse possession cannot be presumed in the absence of proper pleadings and proof. As such, the aforesaid decision of the Honourable Apex Court would clearly operate as against the contention as put forth on the side of D26 that Angamuthu and Mayandi were ousted from enjoying the suit properties.
34. ‘Blending’ is a concept, which is recognised under the Hindu Law. I would like to extract hereunder the concept ‘blending’ as found set out in MAYNE’S HINDU LAW (16TH EDITION) AT PAGE NOs.733, 734 and 735.
“What amounts to blending:
…………In the case of Periakaruppan Chetty Vs. Arunachalam Chetty ((1927) 50 Mad 582) where a father built a house of considerable value on a site worth a few rupees and afterwards adopted a son and both lived in the same house, it was held that the superstructure did not become joint family property. Separate property does not cease to be such and become joint family property by any physical act but the acquirer’s own volition and intention to surrender his exclusive rights. A house constructed by a son with his own funds on a vacant site belonging to the mother was held to be property of the son who constructed it (Koshinath Vs. Pranash (AIR 1978 Cal 509). Where the manager of a Mitakshara joint family mixes the income of the joint family with the income of his separate property or pays both the incomes into the same account in a bank, it will not be sufficient evidence of an intention to alter the character of the separate property, if he maintains separate accounts of both the incomes. In Nutbehari Das Vs. Nanilal Das (41 CWN 613: AIR 1937 PC 61 : (1937) 2 MLJ 114), a Dayabhaga case, where the rule as to blending is the same as in a Mitakshara family (Rajanikanta Pal Vs. Jaga Mohan Pal (1923) 50 IA 173 : 50 Cal 439 : ILR (1977) 4 Bom 880), the Judicial Committee, approving the judgment of Reilly, J., in Periakaruppan Chettty’s case, observed that even in the case of a karta mixing his own moneys with family moneys, the mere fact of a common till or common bank account need of itself effect any blending so long as accounts are kept. In Narayanaswami Vs. Ratnasabapathi ((1937) 2 MLJ 906), the Madras High Court went a step further and held that as the onus is upon the person who claims that the separate property has become joint family property by blending the incomes of the two properties, the fact that no accounts were kept will not raise any presumption in favour of blending; for the reasonable presumption to make in favour of any person having income at his absolute disposal is, that he intended to reserve to himself that power of disposal. The rule as to a trustee mixing his own funds with the funds of a cestui que trust does not furnish a true analogy (Narayanaswami Vs. Ratnasabapathi (1937) 2 MLJ 906). The mere fact that the properties were not separately entered by the coparcener in the books of account or that he did not maintain a separate account of the earnings from these properties would not deprive the properties of their character of self-acquired properties (Narayanan (KV) Vs. Ranganathan AIR 1976 SC 1715). The burden of showing that separate incomes have been blended is upon him who seeks to characterise the income as joint (Gosway Maharaj Vs. Commr. Of Income-tax (Guj) (1964) 54 ITR 664). Where a member of a Hindu undivided family, who was the Managing Director of a company, directed the company that the income of remuneration and fees payable to him be credited to the account of the Hindu undivided family in the books of the company, it was held that such direction, or entry in pursuance thereof did not manifest an intention not to treat it as his separate property ((1980) 17 Cur Tax Rep 95). It is difficult to see how by mixing the income derived from a separate property such as a house or a landed estate or a specific investment with the income of ancestral property, the corpus of the self-acquisition which is easily distinguishable, becomes incorporated into the joint family property. The intention to benefit the family by spending the income of the separate property for family purposes cannot be converted into an intention to transfer the property itself to the joint family, for that is what it amounts to, as was pointed out by the Privy Council in Hurpershad’s case (Hurpershad Vs. Sheo Dayal (1876) 3 IA 259, 277.). To say that there is a duty to keep an account of the income of his separate property is to say that a man cannot spend his separate income for family purposes except at his peril. Where however no accounts are kept, of the joint income, the inference may in a proper case be made that what is claimed as self-acquisition was really made at the expense of the joint family.
Page No.729
301.Property thrown into common stock:-Thirdly, property which was originally self-acquired, may become joint family property, if it has been voluntarily thrown by the owner into the joint stock, with the intention of abandoning all separate claims upon it (Shiba Prasad Vs. Prayag Kumari (1932) 59 IA 331:59 Cal 1399). This doctrine has been repeatedly recognised by the Privy Council. Perhaps, the strongest case was one, where the owner had actually obtained a statutory title to the property under the Oudh Talukdars Act 1 of 1869. He was held by his conduct to have restored it to the condition of ancestral property (Hurpurshad Vs. Sheo Dayal (1876) 3 IA 259:Shankar Baksh Vs. Hardeo Baksh (1889) 16 IA 71:16 Cal397). The question whether he had done so or not, is entirely one of fact, to be decided in the light of all the circumstances of the case (Lal Bahadur Vs. Kanhaya Lal (1907) 34 IA 65: 29 All 244: Suraj Narain Vs. Ratan Lal (1917) 44 IA 201: 40 All 159: Radha Kant Lal Vs. Nazma (1918) 45 Cal 733 PC:22 CWN 649:35 MLJ 99: Narayana Raju Vs. Chamaraju AUIR 1968 SC 1276: Harnam Singh Vs. Mohan Lal AIR 1970 J&K 181 (183)). but a clear intentiion to waive his separate rights must be established and wuill not be inferred from acts which may have been done merely from kindness or affection (Lala Muddun Gopal Vs. Khikhinda Koer (1891) 18 IA 9, 18 Cal 341.)”
35. The above extract would clearly exemplify and demonstrate that ‘blending’ should be proved by cogent evidence otherwise a self-acquired property of a coparcener or a member of a joint family would not automatically become the joint family property or coparcenary property, as the case may be.
36. Almost it has now become a run of the mill proposition of law that a coparcener or a member of a joint family can retain his self-acquired property, unless ‘blending’ is proved by the other coparceners.
37. Here, Singaravelu, after acquiring the suit properties from Veerammal, enjoyed them, and no doubt, his sons and his grandsons also are there and simply because there are three or four generation of legal heirs, there is no presumption that the properties automatically are to be treated as joint family properties, unless there is blending.
38. Here, there is no such evidence available on record and both the Courts below also have not pointed out any evidence relating to ‘blending’ or having brought the suit properties into the common hotchpot of the joint family. Hence, I am of the considered view that the first appellate Court without au fait with law upset the findings of the trial Court without cogent reasons. In fact, the first appellate Court in paragraph No.18 observed thus:
“18. Per contra the 1st respondent’s counsel urged before this Court through the averments of the plaintiff as well as the documents Exs.A5 and A7 clearly proved that the suit property is the ancestral property and the plaintiff is entitled to 11/12th share. The trial Court findings does not require any interference. On the other hand once the property is admitted as ancestral property then the burden is on the defendant that the property is not a joint family property. From the evidence of the defendant side as well as the defendant documents they have not proved that the property is solely enjoyed by Shanmugasundaram alone. On the other hand clear admission of the property originally belong to Singaravelu and Singaravelu had three sons viz., Shanmugasundaram, Angamuthu and Mayandi. Defendants 2 to 7 are the L.Rs of Angamuthu Pillai and Mayandi Pillai as admitted they have share in the suit property hence the trial Court findings does not require interference and the appeal has to be dismissed.
19. On perusal of the trial Court judgement as well as the depositions of both sides along with the arguements of the appellants as well as the respondent’s counsel it is admitted that originally the property belong to Singaravelu even though no document was filed on what date Singaravelu died. But both sides admitted Singaravelu died in the year 1928. Likewise the said Singaravelu had three sons viz., Shanmugasundaram, Angamuthu Pillai and Mayandi Pillai is not disputed. As far as the Lrs of Angamuthu Pillai and Mayandi Pillai even though no disputed, the plaintiff side except Exs.A5 and A6, none of the documents filed to show that Angamuthu Pillai and Mayandi pillai were enjoying the property as a joint family property. Exs.A5 and A6, release deed that too registered on 18.11.89 and 2.12.89. . . . . .”
39. Absolutely, as correctly pointed by the learned Senior counsel for the plaintiff, there is no basis for the findings given by the first appellate Court. The first appellate Court never considered that the original owner of the suit property was Veerammal and from her Singaravelu inherited the properties. The learned appellate Judge virtually misdirected himself by construing as though Singaravelu and his three sons constituted a Hindu joint family and they treated the suit properties as joint family properties, and accordingly, decided the lis, warranting interference in second appeal. As such, the first appellate Court’s assessment of the evidence in this regard was not proper and the trial Court in its judgement even referred to the contentions of D24, D25 and D26 to the effect that there was oral partition of the suit properties and in that the plaintiff and D1 got the suit properties partitioned, and the trial Court, correctly held that in the absence of any evidence, their contentions cannot be countenanced and upheld.
40. Ex.B1 also was correctly understood by the trial Court and such unilateral document executed by Shanmugasundaram would not deprive the other co-sharers of their rights. The trial Court also rejected the contentions on the side of D1 and D26 that the plaintiff became Sanyasi and that he was not entitled to any share, by giving the finding that such contentions were not fortified by any evidence.
41. The trial Court, rendered the finding based on the evidence that the plaintiff-Rathinasabapathy was living with his wife and he did not renounce the family or worldly life, as contended on the side of D1 and D26. Hence, I am of the considered view that the first appellate Court was not justified in holding that the suit properties are the Hindu joint family properties and based on that the first appellate Court was not justified in approaching the matter and allotting shares ultimately. Accordingly, that much portion of the first appellate Court’s judgement requires interference in second appeal.
42. Inasmuch as the suit properties are found to be not Hindu joint family properties and that Singaravelu’s sons, namely, Angamuthu , Mayandi, Shanmugasundaram are all entitled to 1/3rd share each, consequent upon the death of Singaravelu, the fact of the plaintiff having got released in his favour from the heirs of Angamuthu and Mayandi and also from the heirs of plaintiff’s brother Singaravel and his sister-D4-Sivagamasundariammal cannot be found fault with. If at all the properties are held to be Hindu joint family properties, it could be held that such relinquishment in favour of the plaintiff by other co-sharers would enure to the benefit of all others. But, in this case it has been held that the suit properties are not the Hindu joint family properties and hence, the relinquishment of the shares, as per relinquishment deeds Ex.A5 dated 18.11.1989 and Ex.A6 dated 2.12.1989 would enure to the benefit of the plaintiff and it would not enure to the benefit of D1.
43. Accordingly, substantial question of law (i) is answered to the effect that the first appellate Court is wrong in construing the suit properties as the Hindu joint family properties and in allotting half share in favour of the plaintiff and half share in favour of D1 and his heirs.
Substantial Questions of law (ii) and (iii)
44. Drawing the attention of this Court to the various Exhibits B2-the SSLC certificate of D26, Ex.B5-the original marriage invitation of D26, Ex.B8 dated 21.3.1975, and Ex.B9-the community certificate dated 11.6.1975 issued by the Tahsildar and also Ex.B6-the CD, the learned counsel for D26/Cross objector would appropriately and appositely point out that throwing to winds those clinching evidence, both the Courts below simply held that there was no adoption of D26 by the plaintiff. He would also highlight the point that when the question of proving adoption comes after several decades, there would not be any clinching direct evidence available, but from the circumstances the Court has to infer the factum of adoption.
45. The learned Senior counsel for the plaintiff, by inviting the attention of this Court to the deposition of D.W.2-the mother of D26, would point out that there was no consistency in the case of D26 as well as in the deposition of the mother of D26, namely, D.W.2. In one breathe according to him, they would say that when D26, who was born in the year 1957, was at the age of 4 he was adopted by Rathinasabapathy, whereas, in another breathe they would admit that Rathinasabapathy got married during the year 1961 and he gave birth to two children and both died subsequently. As such, the question of adopting D26 by Rathinasabapathy, while he was four years old can never be imagined, even by phantasmegorical thoughts.
46. Whereas, the learned counsel for D26 would contend that the plaintiff himself, at the time of the marriage of D26, in the presence of all dignitaries, at the marriage assembly acknowledged and declared the bride groom-D26 as his adopted son and that actually lends support to the documentary evidence produced in the form of Ex.B2-the SSLC certificate of D26, Ex.B5-the original marriage invitation of D26, Ex.B8 dated 21.3.1975, and Ex.B9-the community certificate dated 11.6.1975 issued by the Tahsildar
47. It would be too late in the day on the part of the plaintiff to question about the ceremonies performed at the time of adoption. An adoption deed is not a sine quo non for proving adoption. Performance of ‘Dhatha homam’ is also not a must. Hence, it has to be found out from the available evidence as to how the plaintiff treated D26. Witnesses might lie but the circumstances would not lie.
48. During hearing on 9.3.2011 between 2.15 p.m. and 2.30 p.m., Ex.B6-the CD was displayed before me in the open Court with the help of laptop and at that time, the learned counsel for the plaintiff and defendants were all present and in that the plaintiff- Rathinasabapathy, in his speech referred the bridegroom, who was Gajaganapathy, as his ‘sweegara puthiran’.
49. Ex.B5-the marriage invitation of D26 is having significance of its own, coupled with Ex.B6-the CD. If Ex.B5-the marriage invitation alone is relied on then at least, the plaintiff could contend that such printed matter was fabricated very easily. But in concinnity with and inconsonance with such invitation, the plaintiff acknowledged, in the presence of all, at the marriage assembly that D26 is his adopted son, and in such a case, the Court cannot turn its face away from reality and throw the baby along with the bath water. Simply by picking holes in the deposition of D.W.2, the plaintiff cannot get over his own admission as well as the other clinching documents available on record, which are clearly demonstrating the factum of adoption of D26 by the plaintiff. In the S.S.L.C.book of D.26, no doubt, biological father-D1 signed and he got it specified in that S.S.L.C.Book that D26 happened to be the son of the plaintiff and it cannot simply be ignored or belittled or brushed aside by saying that out of mere love and affection for Rathinasabapathy, D1, his elder brother simply referred him as father of his own son.
50. I do not think that anywhere in this part of the country, an elder brother would get his younger brother’s name recorded in the S.S.L.C.book of the son of the former, as the father of such son. As such, those documents and evidence and the probabilities were not properly appreciated by both the Courts below.
51. I would like to point out that the trial Court was wrong in holding that in Ex.B6-the CD there was no reference to the plaintiff’s declaration about the status of D26 and that only the dignitaries had spoken so at the marriage assembly, when in fact, the plaintiff himself, at the time of the marriage of D26, in the presence of all dignitaries, at the marriage assembly acknowledged and declared the bride groom-D26 as his adopted son. The maxim ‘Quod fieri non debet, factum valet’ What ought not to be done, when done, is valid, is also squarely applicable in the facts and circumstances of this case. It is therefore clear that P.W.1-the plaintiff and his relatives, his community people and dignitaries affirmed the factum of the said adoption.
52. In this context I hard back to the decision of the Honourable Apex Court reported in AIR 1970 SUPREME COURT 1286 L.DEBI PRASAD (DEAD) BY L.RS.V. SMT.TRIBENI DEVI AND OTHERS, certain excerpts from it would run thus:
“9. …..that in the case of Hindoo, long recognition as an adopted son, raised even a stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family. In Rup Narain v. Mst. Gopal Devi, (1909) 36 Ind App. 103 (PC), the Judicial Committee observed that in the absence of direct evidence much value had to be attached to the fact that the alleged adopted son had without controversy succeeded to his adoptive father’s estate and enjoyed till his death and that documents during his life and after his death were framed upon the basis of the adoption. A Division Bench of the Orissa High Court in Balinki Padhano v. Gopalkrishna Padhano, AIR 1964 Orissa 117; held that in the case of an ancient adoption evidence showing that the boy was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming. We are in agreement with the views expressed in the decisions referred to above.
10. In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well”.
53. No doubt, during the year 1956 the Hindu Adoptions and Maintenance Act had already came into vogue. I would like to extract hereunder Section 8 of of the Act.
“Sec.8. CAPACITY OF A FEMALE HINDU TO TAKE IN ADOPTION Any female Hindu –
(a) who is of sound mind,
(b) who is not a minor, and
(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind,
has the capacity to take a son or daughter in adoption.
Objects and Reasons This clause has been amended so as to make it clear that the expression ‘unmarried female” also includes a female whose marriage has been dissolved or whose husband is dead or has renounced the world or has ceased to be a Hindu or is of unsound mind.
54. Accordingly, if viewed, there is nothing to indicate that the said adoption here is not in accordance with that Act. There is evidence to show that D1 and his wife jointly gave in adoption-their biological son-D26 to Rathinasabapathy-the plaintiff, who took on adoption D26 with the consent of the plaintiff’s wife, and it cannot also be simply stated it is only the ipse dixit of D26 and his mother D.W.2 in the wake of B2-the SSLC certificate of D26, Ex.B5-the original marriage invitation of D26, Ex.B8 dated 21.3.1975, Ex.B9-the community certificate dated 11.6.1975 issued by the Tahsildar and Ex.B6-the CD.
55. I am fully aware of the fact that normally in second appeals, the findings of fact would not be interfered with, but here there is total perversity and illegality committed by both the Courts below in rendering the findings ignoring the real facts before them.
56. It was sought to be canvassed on the side of the plaintiff that D.W.2 the mother of D26 stated that D26 happened to be his foster son. When close relationship exists between the plaintiff and D1, the physical nearness of D26 with his biological mother would not run counter to the theory of adoption. Normally after adoption there should be detachment from the biological family on the part of the adopted son and he should be taken into the fold of the adoptive parents. In this case, the adoptive father is none but the younger brother of D1 and they were living in one and the same house. In such a case, simply because D.W.2 deposed that she had also stayed in the same place with D26, would not run against the theory of adoption. Precisely there is nothing to indicate that such adoption was invalid on the alleged ground that P.W.1 had a biological son at the time of adoption of D26. In fact the deposition of D.W.2 would not in any way support the contention of the plaintiff.
57. In view of the ratiocination adhered to above, I am of the view that the cross-appeal filed by D26 should be allowed, setting aside the findings of both the Courts below and the substantial question of law (ii) is answered in favour of D26 and as against the plaintiff.
58. Since D26 is stated to be the adopted son of Rathinasabapathy, in the share of 1/12 allotted to D1, D26 is not entitled to any share, in other words, the other legal heirs of D1 would get the benefit of D1’s 1/12 share. To that effect, the trial Court’s judgement and decree shall stand modified. Accordingly, the preliminary decree shall follow.
59. In the result, the second appeal and the cross appeal are disposed of to the extent indicated as under:
(i) The first appellate Court is wrong in construing the suit properties as the Hindu joint family properties and in allotting half share in favour of the plaintiff and half share in favour of D1 and his heirs.
(ii) The cross-appeal filed by D26 stands allowed, setting aside the findings of both the Courts below by holding that D26 is the adopted son of the plaintiff.
(iii) Since D26 is held to be the adopted son of the plaintiff/Rathinasabapathy, in the share of 1/12 allotted to D1, D26 is not entitled to any share, in other words, the other legal heirs of D1 would get the benefit of D1’s 1/12 share. To that effect, the trial Court’s judgement and decree shall stand modified. Accordingly, the preliminary decree shall follow.
However, there is no order as to costs.
60. During the pendency of the second appeal, it appears, there was some violation of the order of this Court dated 9.10.2009 passed in M.P.No.1 of 2008, on the part of D26. Whereupon, M.Ps.2 and 3 of 2009 came to be filed by R9 and 16, so as to get an advocate commissioner appointed to note down the physical features of the plaint schedule property and also seeking permission to prosecute R2 in this petition/D26 for having made false statement in the counter affidavit filed in M.P.No.1 of 2008.
61. Whereupon, this Court appointed an Advocate Commissioner with the mission to visit the suit property and note the physical features etc., and file his report. The Advocate Commissioner visited the suit property and submitted his report with photos, which would ex facie and prima facie exemplify that the original old building in the suit property was found demolished and a new construction was raised thereon.
61. The learned advocates for the plaintiff, D9 and D16 would submit that in a portion of the suit property, there was a temple and that also was demolished by D26, violating the said order dated 9.10.2009, and furthermore, while filing counter affidavit, D26 simply stated that for the purpose of repair, a portion of the old building was renovated, but the Commissioner, who visited the suit property clearly stated that the entire old building was demolished and a new building emerged there in the suit property.
62. Whereas, the learned counsel for D26 would submit that earlier there was no temple at all and in the description of the suit property in the plaint also no temple is found referred to, and since the building became a dilapidated one it was renovated.
63. The learned counsel for D26 would further submit that absolutely there is no intention on the part of D26 to commit perjury or give false statement, but because the building was in a dilapidated and dangerous condition and it was down at heel, D26 undertook some repair work. Whereas, the learned advocates for D9, D16 and the plaintiff would submit that the Advocate Commissioner’s observation would go against the stand of D26 because D26 consciously demolished the entire building and raised a new construction itself and he did not utter out the truth but he perjured before this Court.
64. The pertinent point arises is as to whether in this case, it could be held that D26 committed perjury or not.
65. No doubt, it is obvious and axiomatic from the available records that pending second appeal, D26 demolished and raised a new structure in the suit property and since it occurred during the pendency of the litigation, he cannot lay any claim over the newly constructed building and he cannot also claim the money spent by him for such new construction. During the final decree proceedings, while partitioning, the trial Court shall effect partition, ignoring any benefit in favour of D26 relating to the new building raised by D26.
66 Relating to mensrea is concerned, according to the learned counsel for the petitioners, in the counter affidavit filed by D26 in M.P.No.1 of 2008, he deliberately uttered out falsehood. Whereas, the learned counsel for D26 would submit that D26 only expressed his inability to live in that dilapidated building and in the process of carrying out repair, since the building got collapsed, he was constrained to raise a new building it and even though all details are not found set out in the counter, yet it would not amount to perjury.
67. When parties, who are close relatives, are fighting at arms length, certainly bad blood started running in their relationship. In the long longevity of the litigation, normally changes are sprouting. In unmistakable terms, I would point out that whatever might be the circumstances, the act of D26 should be condemned, as he ought to have obtained permission from this Court for carrying out such repair work or for raising the new building. Hence, as aforesaid, D26 would not be entitled to claim any money which had spent for raising that new building and he is not entitled to any compensation also. As already ordered supra, D26 is having no share also in the new building or the plot over which the new building stands and both the plot and the new building thereon shall be partitioned and 11/12th share shall be allotted to the plaintiff and the remaining 1/12th share shall be allotted to the legal heirs of D1, excluding D26 as he is the adopted son of the plaintiff.
68. Regarding perjury is concerned, I am of the considered view that out of some over enthusiasm when counter affidavit was filed in an embellished way by truncating certain facts, D26 appears to have stated so and this Court, therefore need not give any permission for prosecuting D26 on that ground. My remarks supra as against D26 and the decision as against D26 that he is not entitled to any claim relating to the new building or the money spent by him for raising it would sufficiently meet the ends of justice and that too, in view of the maxim ‘Poena sunt restringendae’- Punishments should be restrained. The fact also remains that D26 is not entitled to any share in the entire suit property, which includes the said newly raised building also.
With the above observation all the miscellaneous petitions are closed.
Msk
To
1. The VI Additional Judge, City Civil Court, Chennai
2. The XIII Assistant Judge, City Civil Court,
Chennai