Madras High Court
R.Vasu vs Munna @ Selva Kumar on 16 March, 2022
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A.No.1257 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 04.02.2022
PRONOUNCED ON : 16.03.2022
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.1257 of 2019
and C.M.P.No.27251 of 2019
1.R.Vasu
2.R.Srinivasan
3.R.Elumalai
4.Rani
5.Jayachandran
6.J.Prakash
7.Kousalya
8.Dilli @ Geetha
9.Jayanthi ...Appellants
Vs.
Munna @ Selva Kumar ...Respondent
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https://www.mhc.tn.gov.in/judis
S.A.No.1257 of 2019
Prayer:- Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree in A.S.No.43 of 2019
dated 30.07.2019, on the file of the learned XV Additional Judge, City
Civil Court, Chennai reversing the judgment and decree in O.S.No.6140
of 2013 dated 27.09.2018 on the file of the learned I Assistant Judge,
Chennai.
For Appellants : Mr.K.P.Ashok
For Respondent : Mr.V.Raghavachari for
M/s.R.Jayaprakash
JUDGMENT
This Second Appeal is filed against the judgment of the learned XV Additional Judge, City Civil Court, Chennai in A.S.No.43 of 2019, reversing the judgment of the learned I Assistant Judge, City Civil Court, Chennai in O.S.No.6140 of 2013.
2.Appellants/plaintiffs filed the suit for declaration of title that they are an absolute owners of the superstructure, described as 'B' schedule and for direction to the respondent/defendant to vacate and 2/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 handover the 'B' schedule property; permanent injunction restraining the respondent/defendant, his men, agents, servants or anyone from any way deal with the property described in the schedule namely Old door No.319, New door No.136, Avvai Shanmugam salai, Royapettah, Chennai - 14 measuring 540 sqft., either by way of putting up any temporary or permanent structure or alienating the same in any manner; to direct the respondent/defendant to pay Rs.6,000/- every month for damage, use and occupation of the suit property.
3.Appellants are the absolute owners of the property bearing old No.319, new No.136,Avvai Shanmugam salai, Royapettah, Chennai – 14, by way of succession from late P.G.Raman. P.G.Raman, obtained the property by adoption from his grand father Manickam pillai. Manickam pillai was having leasehold right over the land of Arulmigu Arunachaleswara Thirukoil. During the lifetime of Manickam pillai, his daughter filed suit against him and P.G.Raman for declaring that adoption deed is illegal and not binding upon her. The suit was dismissed. After dismissal of the suit, P.G.Raman is the absolute owner 3/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 of the suit property and he was in possession and enjoyment of the suit property. After the death of Manickam pillai, P.G.Raman effected mutations in his name in the property tax card, water tax card and electricity card. He leased the portions to various tenants and collecting rents from them. P.G.Raman died intestate leaving behind appellants as surviving legal heirs. Appellants leased out the premises to third parties including the respondent. In or about March 2003, respondent purchased movable machineries from appellant's earlier tenant Sundaram and occupied a welding shop and residential portion and become a tenant. Initially, he had not paid any amount towards rent or advance. After, appellants gave complaint to the police, he agreed to pay monthly rent at Rs.2,500/- for shop and Rs.3,500/- for residential portion, exclusive of electricity charges. He paid advance of Rs.25,000/- towards non- residential building and Rs.35,000/- towards residential building. Respondent paid rents for both the premises till 2005 and after July 2005, he has not paid rent. The rental arrears for residential portion is Rs.1,26,000/- from July 2008 to November 2011 and the rental arrears for non-residential portion is Rs.97,500/- for the same period. After 4/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 adjusting security deposit of Rs.25,000/-, respondent is liable to pay Rs.72,500/- for non residential premises. A notice dated 14.09.2011, was issued to the respondent. After receiving the notice, respondent caused nuisance around the tenanted premises and to the neighbours of the appellants. Appellants requested him vacate the building, but respondent has not vacated. Therefore, the suit for the reliefs aforesaid.
4.The case of the respondent is that, the averments in this suit and the pleadings in R.C.P.Nos.127 and 128 of 2012 are contradictory. The suit property land belongs to Arulmigu Arunachaleswar temple. The temple gave leasehold right to Manickam pillai. Appellants, respondent and his siblings are the descendants of common ancestor Manickam pillai. Manickam pillai had daughter Jaya and she was married to Govindan. Five sons and three daughters were born to them. They were P.G.Raman, P.G.Ranganathan, P.G.Perumal, P.G.Shanmugam, Chinnaponnu, Krishnaveni and Dhanakotti. Appellants are the legal heirs of P.G.Raman and respondent and his siblings are the legal heirs of P.G.Ranganathan. They are cousin brothers and sisters. From Manickam 5/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 pillai's time, his succeeding legal heirs pertaining to respondent have been living in the suit property generation by generation. Respondent and his siblings never paid advance or rent and they were not tenants in the property. There never existed the relationship of landlord and tenant as alleged in the plaint. The claim that Manickam pillai's daughter filed the suit against P.G.Raman for declaration that adoption deed is illegal and it was dismissed is not known to the respondent. P.G.Raman was never in possession and enjoyment of the suit property, but, P.G.Ranganathan was in absolute possession and enjoyment of the suit property and after his death in 1988, the respondent is in possession and enjoyment of the suit property. R.C.O.P.Nos.127 and 128 of 2012 filed by the appellants were dismissed on the ground that there was no relationship of landlord and tenant existed. This is vexatious suit and liable to be dismissed.
5.The Trial Court framed the following issues,
i)Whether the plaintiff is the owner of the superstructure? 6/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019
ii)Whether the defendant is trying to put up structures in the suit property unlawfully?
iii)Whether plaintiff is entitled for declaration and injunction?
iv)Whether defendant is liable to pay Rs.6,000/- for use and occupation?
v)To what other reliefs?
6.During the course of trial, PW1 was examined and Ex.A1 to A17 were marked on the side of the appellants. DW1 was examined and Ex.B1 to B19 were marked on the side of the respondent.
7.The Trial Court on going through the oral and documentary evidence found in favour of the appellants and decreed the suit. In appeal filed by the respondent, the First Appellate Court reversed the finding of the trial Court and allowed the appeal. Therefore, appellants have filed this Second Appeal.
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8.At the time of admission of this Second Appeal, the following substantial questions of law were framed for consideration,
i)Whether the plaintiffs/appellants are the owners of the suit property as per Ex.A1 settlement deed in favour of the plaintiff's father?
ii)Whether the property mentioned in Ex.A1 is the same as the suit property and whether the said settlement deed is a proper and valid document conferring the ownership rights on the said P.G.Raman being the adoptive son of Manickam Pillai?
9.Learned counsel for the appellants submitted that the adoption of P.G.Raman, father of appellants 1, 2, 3, 7 and 8 and the settlement of the suit property along with other property were considered in the suit in O.S.No.1231 of 1967. In the said suit, there was a specific finding with regard to adoption deed executed by Manickam pillai for adopting P.G.Raman and P.G.Raman was found to be in possession and enjoyment of the properties covered under the adoption. Cousins are only tenants in the 'B' schedule property. They have not paid the rents and therefore, eviction petitions were filed. The learned Rent Controller directed the 8/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 appellants to approach the Civil Court. Therefore, the suit is filed. There is no appeal against the judgment in O.S.No.1231 of 1967 and it has become final. This judgment binds the respondent as well. The respondent has not denied or disputed Ex.A1 adoption deed in the written statement. Respondent had only said that, he is not aware of the adoption deed. There is no dispute with regard to the identification of the suit property. The finding of the First Appellate Court stating that there is dispute with regard to identification of the suit property and that the judgment in O.S.No.1231 of 1967 will not bind the respondent are not correct. Appellants have produced oral and documentary evidence to show that they are in possession of the suit property. On the other hand, there is no specific case by the respondent as to the basis on which the respondent claims title to the property. Documents produced by the respondent to show their possession in the property had come into existence after the dispute started between the parties. Therefore, they cannot be relied. The First Appellate Court without properly considering the oral and documentary evidence, reversed the well considered judgment of the trial Court and therefore, learned counsel for the 9/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 appellants prayed for setting aside the judgment of the First Appellate Court and for restoring the judgment of the trial Court.
10.Per contra, learned counsel for the respondent submitted that the alleged adoption claimed by P.G.Raman is not in accordance with law. The original adoption deed dated 12.06.1940, is not produced. No evidence was produced with regard to the proof of adoption especially to show that adoption was made following the procedure established by law. When the adoption is not proved, appellants cannot claim exclusive right to the suit property on the basis of the alleged adoption. Appellants/Plaintiffs 1, 2, 3, 7 & 8 are the legal heirs of P.G.Raman. Respondent is son of P.G.Ranganathan, who is brother of P.G.Raman. Respondent and his siblings are enjoying the suit property by generations to generations as legal heirs of Manickam pillai. There never existed their relationship of landlord and tenant between the appellants and respondent. Therefore, R.C.P.Nos.127 and 128 of 2012 filed by the appellants were dismissed. Again appellants filed the suit claiming that the respondent is tenant under them and that is impermissible in law. The 10/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 suit in O.S.No.1231 of 1967 was filed for the relief of partition. The issue as to whether Manickam pillai adopted P.G.Raman as his son was not a main issue before that suit. Therefore, the judgment in O.S.No.1231 of 1967 will not bind the respondent. There is no specific pleading in the plaint that the judgment in O.S.No.1231 of 1967 will operate as res-judicata against the respondent. There cannot be an unilateral adoption. Ex.A1 seems to be a document of unilateral adoption. Respondent or his siblings are not parties to the suit in O.S.No.1231 of 1967. Therefore, they are entitled to challenge Ex.A1 adoption deed. There is no proof filed by the appellants to show that the respondent was paying rent to the appellants. The First Appellate Court had on re-appreciation of the evidence, reversed the finding of the trial Court and rightly dismissed the suit. Therefore, the learned counsel for the respondent prayed for confirming the judgment of the First Appellate Court and for the dismissal of this Second Appeal.
11.In reply, learned counsel for the appellants submitted that original of Ex.A1 adoption deed is available. It is a very old document 11/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 and in brittled condition. That is the reason why the certified copy of the Ex.A1 along with typed version was produced before the Court. The respondent challenged Ex.A1 adoption deed when his parents, especially his father P.G.Ranganathan had not challenged Ex.A1 adoption deed. It is not open to the respondent to challenge the Ex.A1 adoption deed. The issue with regard to the question of law can be taken up at any time. When it is already decided in O.S.No.1231 of 1967 that, P.G.Raman was the adopted son of Manickam pillai and he was in possession and enjoyment of the property, the respondent cannot take plea against that finding.
12.Considered the submissions of the learned counsel appearing for the parties and perused the records.
13.This suit is filed only for the superstructure in Old door No.319, New door No.136, Avvai Shanmugam salai, Royapettah, Chennai – 14 specified as 'B' schedule property. Both the parties admit that the land belongs to Arulmigu Arunachaleswara Thirukoil. It is also 12/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 admitted by the parties that Manickam pillai, who is the grand father of P.G.Raman, P.G.Ranganathan, P.G.Perumal, P.G.Shanmugam and Chinnaponnu, Krishnaveni and Dhanakotti took lease of land and constructed the building. Though the details of legal heirs of Manickam pillai, it is not given in the plaint, these details are available in the written statement filed by the respondent. Appellants claims that, Manickam Pillai adopted his daughter Chinnamal's son P.G.Raman as his son through Ex.A1 adoption deed and therefore, appellants as the legal heirs of the deceased P.G.Raman are entitled to the suit property absolutely. Whereas, the case of the respondent is that appellants, respondent and his siblings, the legal heirs of P.G.Ranganathan, are cousin brothers and sisters. They are in possession and enjoyment of the suit property as the legal heirs of Manickam pillai for generations and there had never been a relationship of landlord and tenant between appellants and respondent.
14.Admittedly, R.C.O.P.Nos.127 and 128 of 2012 were dismissed on 20.09.2013. These R.C.O.P.'s were dismissed mainly on the ground 13/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 that there is question of title involved between the parties, no evidence produced by the appellants to show that respondent became tenant under them from 2003 onwards. On the other hand, the documents produced by the respondent show that his family is continuously living in the property, even prior to 1988. On these reasons, the learned Rent Controller found that there is no relationship of landlord and tenant exist between appellants and respondent and dismissed the petition. Copy of order in R.C.O.P.Nos.127 and 128 of 2012 is produced as Ex.A8. Even in this suit, the appellants claim that, respondent purchased the movables machineries from appellant's tenant one Sundaram and occupied the welding shop and residential portion and became tenant for residential and non-residential portion. They claim that till July 2005, respondent paid rent and thereafter, did not pay the rent.
15.Appellants claim title to the suit property on the basis of the Ex.A1 adoption deed. Respondent claims title to the suit property as a legal heir of Manickam pillai. It is necessary to find out whether the Ex.A1 adoption deed is a true and valid document and on the basis of 14/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 Ex.A1 appellants can claim title to the suit property. Learned counsel for the respondent pressed into service the judgments reported in AIR 1964 SC 136 Addagada Raghavamma and Another Vs. Addagada Chenchamma and another and 2017 SCC Online Mad 261 K.M.Subramaniam Vs. Parvathiammal (died) and 8 others as to the essential requirements of a valid adoption and its proof.
It is pertinent to refer to the judgment reported in AIR 1964 SC 136 Addagada Raghavamma and Another Vs. Addagada Chenchamma and another and 2017 SCC Online Mad 261 K.M.Subramaniam Vs. Parvathiammal (died) and 8 others, as to the essential requirements for the proof of adoption.
13.We shall first take the question of adoption.
14.It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. Here, the appellant alleges in the plaint that Venkayya: the son of Chimpirayya, was taken in adoption by her husband, Pitchayya. The first defendant, the widow of Venkayya, denies in her written- statement that her husband was adopted by Pitchayya. On 15/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 the said pleadings the following issue was framed : "Whether the adoption of Venkayya is true and valid."
..................The reason for the adoption, according to her, was that he was sick and was afraid that he would die. She graphically describes that Alivelamma, the wife of Chimpirayya, gave her son in adoption to the accompaniment of "mantrams and tantrams", that one Subbayya of Upputur was the prohit who officiated in the ceremony. In the cross-examination she says that Pitchayya did not die suddenly of an attack of fever but was suffering from dropsy for about a month and also even earlier; she admits that for important functions like marriage and adoption in their family they would invite the village officers and other important people of the village, but no such officers or important people were invited when Venakayya was taken in adoption. This witness was 60 years old in 1961 and therefore she would have been about 15 years at the time of the alleged adoption. Assuming for a moment that Pitchayya was suffering from dropsy, there is no reason why no important persons were invited for the function. If her evidence were true, Pitchayya took part in the alleged ceremony and it cannot therefore be suggested that he was so ill that all the formalities had to be dispensed with. Indeed, if he was ill and if the adoption was made without inviting the 16/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 important people, that should have been the very reason why the village officers would have been invited and a document to evidence it executed. P. W. 2 is the appellant Raghavamma. She says that there was a ceremony of adoption officiated by the prohit Subbayya and that her brother-in-law and his wife gave the boy to her and her husband in adoption. She also deposes that her father and his brothers were present at the adoption. In the cross- examination she says that her husband lived for about 3 months after the adoption. She admits that no document was executed and that though there were accounts, no entries relating to the expenses of the adoption were entered therein. While P.W. I says that Pitchayya lived for one month after the adoption, P. W. 2 says that he lived for about 3 months thereafter. Neither in the pleadings nor in the evidence the date of adoption is given. The evidence of P. W. I is vague and appears to be improvised and the evidence of P. W. 2 discloses the improbabilities inherent in such an adoption. They also contradict each other on material circumstances. The Courts below have disbelieved their evidence. 17/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 In the judgment reported in 2017 SCC Online Mad 261 K.M.Subramaniam Vs. Parvathiammal (died) and 8 others, is observed as follows,
20.........While considering the degree of proof required for adoption, the Hon'ble Supreme Court in A.Ragawamma and another v. A.Chenchamma and another reported in AIR 1964 SC 136 has observed as follows:
“It is well settled that a person, who seeks to displace the natural succession of the properties by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity.”
21. On the facts of the said case, the Hon'ble Supreme Court found that parties therein relied upon the conduct of the parties subsequent to the alleged adoption and filed a number of documents to support their respective cases. After analyzing the documents that were produced, the Hon'ble Supreme Court found that they contained contradictory description. In fact, the Hon'ble Supreme Court found that while the alleged adopted son is namely Venkayya, had described himself as son of his natural father, whenever third parties executed the documents, he was described as adopted son of Pichaiya. He had also filed suits some times as 18/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 adopted son of Pichayya and some time as the son of Chimpirayya.
22. Considering the evidence where there had been documents containing contradictory descriptions regarding the status of the alleged adopted son, the Hon'ble Supreme Court came to the conclusion that it would not be appropriate for the Courts to infer an adoption when there are conflicting descriptions.
23. The Hon'ble Supreme Court had again reiterated in Daulatrao Jairamji vs. Harishchandra and others reported in AIR 1972 SC 2446, the burden of proof of adoption is on the person, who claims adoption.
24. If we analyse the evidence on record, in light of the observations of the Hon'ble Supreme Court referred to above, we find that the case of adoption put forth by the respondent should not have been accepted by the Trial Court. The reasons are not far to seek. The case of the 1st defendant in his written statement is that the adoption took place during the month of Avani 1960. Admittedly the 2nd plaintiff was born in the year 1940. Therefore, he was nearly 20 years old on the date of the alleged adoption. After coming into force of Hindu Adoption and Maintenance Act, a child above the age of 15 cannot be adopted, unless such adoption is shown to be according to the custom or usage of 19/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 community to which the parties belonged to, in view of prohibition contained under Section 10(iv) of the Hindu Adoptions and Maintenance Act 1956. In the case on hand, custom or usage in the community to which the parties belong to has neither been pleaded nor proved.
16.Ex.A1 adoption deed came into existence on 12.06.1940, that is prior to the enactment of the Hindu Adoptions and Maintenance Act, 1956. Therefore, this case is governed by old law prevailing in 1940 to determine whether Ex.A1 adoption deed is a valid document. Section 30 of the Hindu Adoptions and Maintenance Act, 1956, saves adoption made before commencement of this Act. The validity of any adoption and effect of any such adoption shall have to be determined as if, this Act is not passed. As per the law, prevailing then, that is, prior to enactment of the Hindu Adoptions and Maintenance Act, 1956, as per the commentries in Mulla and Hindu Law, the requirements of a valid adoption are that, 20/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 445: Requirements of a valid adoption:-No adoption is valid unless:
i)the person adopting is lawfully capable of take in adoption;
ii)the person giving in adoption is lawfully capable of giving in adoption;
iii)the person adopted is lawfully capable of being taken in adoption.
iv)the adoption is completed by an actual giving and taking and
v)the ceremony called “Datta Homam” has been performed. It is however, doubtful, whether the datta homam ceremony is essential in all cases for the validity of adoption.
446:Who may adopt:-
Every male may adopt, provided he is otherwise competent to do so (§ 447). A wife can also adopt to her husband, but no other female can adopt to any other male; thus, a mother cannot adopt to her son, nor a sister to her brother. 447:Adoption by male:-
(1) Subject to the provisions of any law for the time being in force, every male Hindu, who is of sound mind, and has attained the age of discretion, even though he may be a minor, may lawfully take a son in adoption, provided he has 21/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 no son, grandson, or great-grandson, natural or adopted, living at the time of adoption.
471:Who may give in adoption:-
The only person who can lawfully give a boy in adoption are his father and his mother.
472:-Right of Father:-
The primary right to give in adoption is that of the father. 473:-Right of Mother:-
The mother cannot give her son in adoption, while the father is alive and capable of consenting, without his permission.
477:-Who may be adopted:-
Subject to the following rules, any person who is a Hindu, may be taken or given in adoption:
i)the person to be adopted must be a male.
ii)he must belong to the same caste as his adopting father.
iii)he must not be a boy, whose mother the adopting father could not have legally married; but this rule had been restricted in many cases to the daughter's son, sister's son, and mother's sister's son.
iii) A)deaf and dumb person cannot be adopted. A person who had become a Sanyasi, but has renounced the order, can be taken in adoption.22/47
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iv) there is a difference of opinion between the schools as to the age when a boy may be adopted:
v)it has been held in Madras, Mysore, Nagpur and Allahabad that the adoption of a married person is not valid even among sudras. The adoption of an illegitimate son of a Sudra is not valid.
485:Ceremonies relating to adoption:-
1)The ceremonies relating to an adoption are:
(a) the physical act of giving and receiving, with intent to transfer the boy from one family into another (§ 486);
(b) the datta homam, i.e., oblations of clarified butter to fire (§ 487); and
(c) other minor ceremonies, such as putresti jag (sacrifice for male issue).
(2) The physical act of giving and receiving is essential to the validity of an adoption (§ 486).
As to datta homam, it is not settled whether its performance is essential to the validity of an adoption in every case (§ 487).
As to the other ceremonies, their performance is not necessary to the validity of an adoption.
(3) No religious ceremonies, not even datta homam, are necessary in the case of Sudras; nor are religious ceremonies necessary amongst Jains or in the Punjab. 23/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019
17.From the commentaries above extracted, we come to know the requirements of a valid adoption, who may adopt, adoption by male, who may give in adoption, right of father in giving adoption, who may be adopted and ceremonies relating to adoption. A male Hindu, who is of a sound mind and attained an age of discretion, may adopt. Father has primary right to give in adoption. No religious ceremonies, not even datta homam, are necessary in the case of Sudras; nor are religious ceremonies necessary amongst Jains or in the Punjab. Giving and receiving is only requirement for a valid adoption. In this background, prior to the enactment of the Hindu Adoptions and Maintenance Act, 1956, we have to appreciate Ex.A1 Adoption deed.
18.Before that, there are certain technical objections made with regard to admissibility of the Ex.A1 adoption deed. It is submitted by the learned counsel for the respondent that Ex.A1 adoption deed is not an original adoption deed and the registration copy is not readable. Without following the procedure for marking the secondary evidence Ex.A1 was 24/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 marked and therefore, it is inadmissible in evidence and on that basis, appellants cannot claim right in the suit property. In this regard, learned counsel for the appellant pressed into service, the judgments reported in 1997 2 L.W. 128 in The Food Corporation of India, represented by its District Manager, 21 Spur Tank Road, Madras – 600031 Vs. K.Duraipandian and 3 others and 2012 3 MWN (Civil) 536, Pappannan and four others and Kolandasamy.
With regard to the admissibility of secondary evidence, judgment reported in 1997 2 L.W. 128 Food Corporation of India vs. K.Duraipandian, it is observed that,
13. The documents filed and marked in a case have to be admissible and even if it is admissible, they have to be proved in accordance with the provisions of the Indian Evidence Act so that the documents can be taken as evidence. It cannot be denied that Exs. P-16 to P-19 are the statements prepared on the basis of some other documents and so now we have to examine whether Exs. P-16 to P-19 would come under the scope of Sec. 63 of the Evidence Act. Sec. 63 runs as follows:— 25/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 “Secondary evidence:— Secondary evidence means and includes-
(1) Certified copies given under the provisions herein after contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.”
16. Section 65 of the Indian Evidence Act deals with the manner of proof. A secondary evidence can be admitted and relied on only in the cases mentioned in Section 65 of the Act. If the originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence, those documents cannot be admitted and relied on. The protection is given in Section 65 of the Indian Evidence Act to the person who in spite of best efforts are unable due to circumstances beyond their control to place before the Court the primary evidence. It is not the case of the plaintiff that the original consists of numerous 26/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 records which cannot be conveniently be examined in Court. As mentioned earlier, P.W 1 admits that originals/primary documents are available.
18. While dealing with the admissibility of photostat copies the Supreme Court in the case reported in 1975 S.C 1748 (Ashok v. Madhavlal), has held as follows:— “It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circusmtances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances that the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.” 27/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 On defective document in the judgment reported in 2012 3 MWN (Civil) 536, Pappannan and four others and Kolandasamy, it is observed that,
18.............Once a document, which is basically defective has been wrongly entertained and if it is against law, at any stage, its admissibility can be questioned. The First Appellate Court, having chosen to reverse the judgment and decree of the Trial Court should have dealt with all these aspects point by point.
19.No doubt that Ex.A1 is the xerox copy of the registration certificate of the adoption deed dated 12.06.1940, along with a typed version. The reason, according to the learned counsel for the appellants, for non production of original is that the original adoption deed is old and is in brittled condition and therefore, it could not be produced and it is very much available in their hand. It is also submitted that, appellants are ready to produce the original adoption deed. The xerox copy produced is also not readable for the reason that the letters are not visible because the print is very dark in colour. The registration copy, it seems, was obtained on 18.07.2012. Contents of this adoption deed, in brief, 28/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 from the typed version, are as follows:
“This adoption deed was executed between Manickam pillai and Govinda pillai. Govinda pillai is the father of P.G.Raman, P.G.Ranganathan and others. He is husband of Manickam pillai's daughter Chinnamal. It is recited in this adoption deed that, Manickam pillai has no male heirs. After his death and death of his wife Pattammal, last rites and religious ceremonies have to be performed as per hindu custom. Therefore, he requested Govinda pillai to give sixteen years old Raman, among his four sons, as the adopted son of Manickam pillai.
Govinda pillai accepted this request. Therefore, through this document Manickam pillai adopted Raman ''rh];jpNcwe;jkha;'' as his adopted son.
It is also recited that, Raman has to take control of the properties after his death and his wife Pattamal”.
20.There are witnesses to these documents. Since, this document had come into existence on 12.06.1940, it appears that none of the witnesses were examined in the Court. It is clear from this document that P.G.Raman, son of Govinda pillai was adopted as a son of Manickam 29/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 pillai. It is claimed that Manickam pillai adopted P.G.Raman, as his son '''rh];jpNcwe;jkha;''.
21.Subsequently, one of the daughters of Manickam pillai, Sithammal filed suit in O.S.No.1231 of 1967 against 1)P.G.Raman,
2)Chinnamal, mother of P.G.Raman and P.G.Ranganathan and others,
3)Pattamal, wife/concubine of Manickam pillai 4)Albert Daniel and
5)Balakrishna pillai for the relief of declaration that she is entitled half share in the plaint schedule property and that alienation in favour of defendants 4 and 5 is not binding on her. She filed the suit claiming that Manickam pillai executed settlement deed in respect of his properties on 21.12.1934 in her favour and her sister Chinamal. P.G.Raman, claimed in that suit that the settlement deed executed by Manickam pillai had not acted upon and not come into force. On the other hand, Manickam pillai settled the properties in his favour and he was in possession and enjoyment of the suit properties. Issues with regard to the settlement deed dated 21.12.1934, settlement of the properties to the first defendant and whether first defendant was in possession and enjoyment of the 30/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 properties, since 1952, among other issues, were framed.
22.The trial Court in that suit on going through the oral and documentary evidence found that, though Ex.B1 settlement deed dated 21.12.1934 was executed by Manickam pillai in favour of Sithamal and Chinamal, it has not come into force, not acted upon, not handed over to the beneficiaries. Settlement deed was produced by the first defendant's custody. The evidence of Sithamal is that, she did not know anything about Ex.B1 except that her father executed it and her admission is that first defendant had been enjoying the suit properties. The trial Court in O.S.No.1231 of 1967, found that Ex.B1 was only sham and nominal document and it was not acted upon. On the other hand, it was specifically found that after revoking the Ex.B1 settlement deed, Manickam pillai had executed Ex.B3 deed of adoption, adopting the respondent/first defendant, who was his grand son, that is son of second defendant and settled the properties in his favour. It was also found that first defendant (P.G.Raman) had been in possession and enjoyment of the properties covered under Ex.B3 deed of adoption (Ex.A1 in this case). It 31/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 is clear from this judgment in suit between predecessors in title of the parties herein, namely, P.G.Raman, his mother Chinnamal and
3)Pattamal, wife/concubine of Manickam pillai and two others, the validity of Ex.A1 adoption deed had come into question. After analysing the evidence, the Court found that Ex.A1 adoption deed was executed by Manickam pillai and in pursuance of the adoption deed, P.G.Raman was in possession and enjoyment of the properties covered under the adoption deed. A part of which is the suit property in this suit. Though, P.G.Ranganathan is not a party to the suit in O.S.No.1231 of 1967, his mother Chinnamal was a party to this suit. It appears that, she has not denied or disputed adoption and settlement of the properties through Ex.A1 adoption deed. Thus, it is not open to the respondent as the legal heirs of Chinnamal to challenge the Ex.A1 adoption deed, especially when Ex.A1 adoption deed is not challenged by his father P.G.Ranganathan, or any of his other siblings.
23.Though a plea of res-judicata is not specifically taken in the plaint, this legal plea can taken even in the Second Appeal. Learned 32/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 counsel for the respondent relied on the following judgments on the principles of res-judicata, 1.1976 4 Supreme Court Cases 780 Syed Mohd. Salie Labbai (Dead) by LRs and others Vs. Mohd.Hanifa (Dead) by Lrs and others, 2. 2009 10 Supreme Court Cases 273 Ramchandra Dagdu Sonavane (Dead) By LRs. And others Vs. Vithu Hira Mahar (Dead) By LRs, While considering the principles of Res-Judicata, in the judgment reported in 1976 4 Supreme Court Cases 780 Syed Mohd. Salie Labbai (Dead) by LRs and others Vs. Mohd.Hanifa (Dead) by Lrs and others, it is observed that,
8.In the instant case according to the plaintiffs / respondents the identity of the subject-matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. Unfortunately however in this case 33/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 the pleadings of the suits instituted by the parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment. We would also like to note what the High Court has said on the question of res judicata. The High Court found that although the litigation between the parties lasted for a pretty long time it was never decided whether all or any of the suit properties constituted a public trust. Both the parties appear to have taken extreme stands but even despite the fact that the previous judgments contained an incidental finding that the mosque was a public property and so was the burial ground, the effect of these findings was nullified in 1939 when the High Court held that even if the properties in dispute were the exclusive properties of the Labbais, this expression was not meant to indicate that they were their private properties. This, in our opinion, clearly shows that the public charcter of the wakf or of the mosque was never in issue. The High Court on this point found as follows:
"We are, therefore, of the view, that the issue as to whether the properties constituted a public trust having been never raised and decided between the parties in any of the prior suits, O.S. No. 9 of 1956 on that question was not barred by 34/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 res judicata. The finding of the Court below in this regard is affirmed."
The Trial Court had also negatived the plea of res judicata taken by the defendants.
In the judgment reported in 2009 10 Supreme Court Cases 273 Ramchandra Dagdu Sonavane (Dead) By LRs. And others Vs. Vithu Hira Mahar (Dead) By LRs, it is observed that,
53)The learned senior counsel Sri Naphade by placing reliance on the observation made by this court in the case of Syed Mohd Salie Labbai (Dead) by LRS vs. Mohd. Hanifa (Dead) by LRS [(1976) 4 SCC 780], that the best method to decide the question of is first to determine the case of parties as put forward in their respective pleadings of their previous suits and then to find out as to what had been decided by the judgments which operate as res-judicata. It is the contention of the learned senior counsel that the pleadings of the suit of 1953 was not available to the civil court while deciding the second suit of 1979 and, therefore, the High Court was justified in holding that the finding of the civil court in the second suit of 1979 and the appellate court against that order regarding res-judicata cannot be upheld.
35/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019
54)In Syed Mohd's case, this court has stated that before a plea of res- judicata can be given effect the four conditions requires to be proved. They are, that the litigating parties must be the same; that the subject matter of the suit also must be identical; that the matter must be finally decided between the parties; and that the suit must be decided by a court of competent jurisdiction. This court while analyzing those conditions as matter of fact found that the parties had not even filed the pleading of the suits instituted by them. In that factual scenario, this court has to observe that the pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment.
55)It is true that if an earlier judgment has to operate as res-judicata in the subsequent proceedings, then all the necessary facts including pleadings of the earlier litigation must be placed on record in the subsequent proceedings. In the judgment and decree in O.S. No. 2353 of 1979, the trial Judge in extenso has referred to the pleadings of the parties in the earlier suit with reference to the copy of the judgment and decree passed in O.S. No.104 of 1953 which was produced by the appellants along with the other documents and it is only thereafter has observed that the issue regarding adoption of Vithu was one of the issues framed in the 1953 suit and the court after referring to the pleadings 36/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 of both the parties and the evidence adduced has specifically answered the issue by holding that Vithu has failed to prove that he is adopted son of the deceased Watandar. Therefore, we cannot accept the contention of learned senior counsel Sri Shekhar Naphade.
56)In fact, the High Court, while deciding on this issue had observed that the pleadings of the parties in O.S. No.104 of 1953 were not available before the civil court in the subsequent suit and, therefore, there is non-compliance of mandatory and basic requirements, as laid down by this Court in the case of Syed Mohd. In our view, this reasoning of the High Court is fallacious and we cannot agree. In our view, each one of the conditions necessary to satisfy the test as to the applicability of Section 11 of Civil Procedure Code is satisfied.
24.Already the judgment in O.S.No.1231 of 1967 was marked before the trial Court. Both the Courts have also considered this judgment and the First Appellate Court wrongly decided that judgment in Ex.A17 is only a obiter dictum and the judgment is not relevant for the purpose of this case. This finding is apparently wrong for the reason that specific issues had been framed with regard to documents, that is, Ex.B1 settlement deed dated 21.12.1934 and Ex.B3 deed of adoption 37/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 dated 12.06.1940 and the Court came to the conclusion that Ex.B1 had not come into force. On the other hand, it was found that Ex.B3 had come into force and on the basis of this document. P.G.Raman was in possession and enjoyment of the suit properties. Therefore, the finding of the First Appellate Court in this regard is contrary to the evidence and therefore, liable to be set aside and accordingly set aside.
25.It is true that no witness was examined to prove Ex.A1 adoption deed. This adoption had taken place in 1940. In case of such old adoption, strict proof of the performance of the ceremonies may not be available. An adoption, acquiesced in and recognized for number of years by the person making the adoption and a long course of recognition on the part of the persons who be expected to know the fact and who were best acquainted with the circumstances, can give rise to the inference that the conditions relating to the adoptions were fulfilled. “Datta Homam” is not necessary for adoption of daughter's son. It is so held in the judgment reported in AIR 1940 Mad 98 Saminatha Iyer and another Vs. Vageesan that “Datta Homam” is not necessary for the 38/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 adoption of daughter's son.
26.In the case before hand, except the respondent, it seems, adoption of P.G.Raman by Manickam pillai is not challenged by others. Even, in the written statement of the respondent it has not been specifically denied that there was no adoption of P.G.Raman by Manickam pillai. It was just said that respondent did not know the alleged adoption and appellants are put to strict proof of the adoption. It is also claimed that, he did not know about the suit in O.S.No.1231 of 1967 and the appellants have to prove this suit. As already stated, in the judgment in O.S.No.1231 of 1967 it had already been found that the adoption of P.G.Raman by Manickam pillai was valid and therefore, he was in possession and enjoyment of the suit property. This finding certainly acts as res judicata against the respondent and therefore, it is not open to the respondent to challenge the Ex.A1 adoption. Ex.A1 adoption is proved through Ex.A17 judgment. In this view of the matter, this Court finds that the aforesaid judgments produced by the respondent for the proposition with regard to proof of adoption, res judicata and 39/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 other aspects are not applicable to the facts and circumstances of this case.
27.With regard to the production of secondary evidence without proper and adequate reason for producing it, in the form of Ex.A1, this objection should have been taken at the earliest possible opportunity, that is before the trial Court. That was not taken. It is now not open to the respondent to take this objection, especially in the light of the judgment in O.S.No.1231 of 1967 with regard to Ex.A1 adoption deed.
28.Feeble attempt was made with regard to identification of the property. The judgment reported in 2014 SCC Online Mad 8975 K.S.Pururaras Vs. P.N.V.Easwaran, is pressed into service in this regard, In the judgment reported in 2014 SCC Online Mad 8975 K.S.Pururaras Vs. P.N.V.Easwaran, it is observed that,
7. What Rule 3 of Order VII of the Code of Civil Procedure, 40/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 envisages is where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
8. A conjoint reading of Order VII, Rule 3 and Order XX, Rule 9 of the Code, makes it clear that in a suit relating to immovable property, the plaint must disclose the identity of the said property without any ambiguity. The identification may either be by boundaries or by numbers of revenue records or settlement or survey records.
9. In Bandhu Das vs. Uttam Charan Pttanaik {AIR 2007 Orissa 24 : 2006 (2) Orissa L.R. 80}, in a suit for declaration of title, there was complete absence of description of suit property. Neither a measurement in relation to settlement map was given nor sketch map was drawn to scale. Even no boundaries or extent of the suit land was mentioned. It was held by the Orissa High Court that the suit was incompetent for want of proper description and sufficient identification of the suit land.
29.It is not in dispute that parties to the suit are fighting for the 41/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 suit property and this is the only property they are fighting for. Therefore, there is no question of doubt in identification of property.
30.Learned counsel for the appellants pressed into service the judgment reported in 2010 4 Supreme Court Cases 728 Oswal Fats and Oils Limited Vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and others, as to the necessity to approach the Court with clean hands.
It is observed that,
20. It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has 42/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 the right but a duty to deny relief to such person. There is no doubt that a party approaching the Court must come with clean hands.
31.Appellants claim respondent as a tenant. It was rightly found by the learned Rent Controller that appellants have not established that the respondent was a tenant under them. Even, in this case, there is no positive evidence produced to show that respondent had attorned tenancy with the appellants and paid rents. Respondent has not established a better title than the appellant. Therefore, the respondent can only be considered as a trespasser when he has no legal right to continue in possession. The trespasser's possession can be protected only till a lawful proceeding is taken for eviction. Now, the present suit is filed for declaration of appellant's right in superstructure of 'B' schedule property, for vacating the respondent from 'B' schedule property and for permanent injunction. In view of the discussions held above, this Court finds that the appellants are entitled as a legal heirs of P.G.Raman to the suit property in pursuance of Ex.A1 adoption deed and therefore, they are 43/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 entitled for the relief of declaration, possession and injunction and damages for use and occupation as prayed for in the plaint. When the trial Court has properly analyzed the evidence and decree the suit, First Appellate Court without properly appreciating the evidence, especially judgment in O.S.No.1231 of 1967, had wrongly reversed the judgment of the Trial Court and dismissed the suit. That has to be necessarily set aside and accordingly set aside.
32.For the reasons aforesaid, this Court answers in affirmative in favour of the appellants for both the substantial questions of law.
33.In fine, the judgment of the learned XV Additional Judge, City Civil Court, Chennai in A.S.No.43 of 2019 is set aside and the judgment of the trial Court in O.S.No.6140 of 2013 dated 27.09.2018 passed by the learned I Assistant Judge, City Civil Court, Chennai is restored and the suit is decreed as prayed for by the appellants/plaintiffs. Consequently, this Second Appeal is allowed with the costs of the 44/47 https://www.mhc.tn.gov.in/judis S.A.No.1257 of 2019 appellants. Connected miscellaneous petition is closed.
Ep 16.03.2022
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
1.The XV Additional Judge,
City Civil Court,
Chennai.
2.The I Assistant Judge,
Chennai.
3. The Section Officer,
VR Section,
High Court of Madras.
45/47
https://www.mhc.tn.gov.in/judis
S.A.No.1257 of 2019
G.CHANDRASEKHARAN.J,
Ep
46/47
https://www.mhc.tn.gov.in/judis
S.A.No.1257 of 2019
S.A.No.1257 of 2019
and C.M.P.No.27251 of 2019
16.03.2022
47/47
https://www.mhc.tn.gov.in/judis