Madras High Court
Marimuthu vs Pichai Ammal on 15 June, 2010
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15/6/2010
CORAM
THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI
A.S.(MD)No.311 of 1995
Marimuthu ... Appellants/Plaintiff
Vs
1. Pichai Ammal
2. Arumugam
3. Lakshmi
4. Nagajothi (Minor)
5. Mani (Minor)
(respondents 4 and 5 are
represented by 3rd respondent
6. Subbiah Pillai
7. Natarajan ... Respondents/Defendents
(Respondents 4 and 5 brought on record as LRs of deceased 3rd respondent by an
order dated 1.12.1992 in I.A.No.481 of 1992.
*****
PRAYER
The Appeal is filed under Order 41 Rule 1 C.P.C., appeal is preferred against
the judgment and decree in O.S.No.738 of 1992 on the file of the I Additional
Subordinate Court at Madurai dated 10.2.1994.
!For Appellant ... Mr.K. Srinivasan
^For Respondent ... Mr.S. Subbiah
:JUDGMENT
The appeal is preferred against the judgment and decree in O.S.No.738 of 1992 on the file of the I Additional Subordinate Court at Madurai dated 10.2.1994. The plaintiff is the appellant.
2. The suit is filed for partition by metes and bounds of the schedule mentioned properties and allot separate possession of 3/4th share in them to the plaintiff.
3.The brief facts of the case is as follows:
4. The suit property belonged to one Mani alias Karuppana Pillai. The 1st defendant is the wife of the said Mani alias Karuppana Pillai (hereinafter called as Karuppana Pillai). He died issueless. While he was alive, he adopted the plaintiff and there was a ritual of adoption between the adopted parents and the biological parents of the plaintiff. The plaintiff was given in adoption and the said Karuppana Pillai took him as adopted son in an auspicious day in Arulmighu Muthiah Koil at Kochadai. From the date of adoption, the plaintiff was living with the adopted parents. The plaintiff was treated as a member of joint family and he became entitled to the properties along with the adoptive father. Item Nos.1 to 7 originally belonged to one Irulappa Pillai, the cousin of Karuppana Pillai. One Parvathiammal, the 2nd wife of Irulappa Pillai became entitled to the properties and she bequeathed the properties to the said Karuppana Pillai under a Will dated 25.3.80. The rest of the suit properties are self acquired properties of Karuppana Pillai. On the death of Karuppana Pillai, the attitude of the 1st defendant viz., the adopted mother, changed on the ill- advice of her younger brother, who is the 2nd defendant. Even during the lifetime of Karuppana Pillai, the 1st defendant started living away from her husband. In order to confirm the adoption, Karuppana Pillai executed a registered adoption deed on 7.7.1982. Karuppana Pillai died on 3.1.1989 leaving behind the plaintiff and the 1st defendant as his only legal heirs. One Mariyayee filed a suit in O.S.No.311 of 1982 against Karuppana Pillai and others in respect of the joint family properties. On the death of Karuppana Pillai, the 1st defendant was recognised as the legal heir and the plaintiff was not impleaded as party. The 1st defendant colluded with the plaintiff and a decree was passed and the decree is not binding on the plaintiff. One Ganesan filed a suit in O.S.No.685 of 1988 against Karuppana Pillai. On the death of Karuppana Pillai, an application to implead the legal heirs was filed and the 1st defendant opposed impleading the plaintiff as legal heir. However, the petition was allowed. Therefore, the adoption of the plaintiff stood confirmed. The plaintiff is entitled to + share in the joint family property along with his father and after the death of Karuppana Pillai, he is entitled to + share in the + share of the adopted father along with the 1st defendant. Therefore, in total, the plaintiff is entitled to _ share in the suit property. Therefore, the suit is filed for partition.
5. The suit was resisted by the defendants and the 1st defendant as well as the 7th defendant filed a detailed written statement. The sum and substance of the written statement is as follows:
6. The alleged adoption of the plaintiff by Karuppana Pillai was denied. The alleged giving and taking of adoption before the Arulmighu Muthiah Koil at Kochadai was also denied. According to the defendants, there was no adoption of the plaintiff by Karuppana Pillai. The alleged registered adoption deed was also denied. It is stated that the said Karuppana Pillai had borrowed a sum of Rs.5,000/- from the plaintiff's father Raju Pillai in the year 1982 and as security he was insisted to execute a registered mortgage deed and his thumb impression was obtained in blank papers. Therefore, the execution of adoption deed was also denied.
7. According to the 7th defendant, the suit items 1 to 5 originally belonged to one Ramu Pillai and 6 and 7 belonged to Irulappa Pillai. Ramu Pillai had one son viz., Irulappa Pillai and two daughters viz., Pechiammal and Mariyayee. Ramu Pillai died leaving behind his son and two daughters, who inherited item Nos.1 to 5. One of his daughters viz., Pechiammal married to one Sennimalai Pillai and she had two sons viz., one Muthiah and the present 2nd defendant and the daughter is the 1st defendant. Sennimalai died on 17.4.1980 and Muthiah died on 22.5.1986 leaving behind the defendants 3 to 5 as legal heirs. The said Irulappa Pillai appears to have married one Parvathiammal in the year 1950 during the subsistence of his marriage with one Mariammal. Therefore, the said marriage is not valid and the said Parvathiammal had no right or title in the property. Irulappa Pillai died intestate leaving behind his two daughters Pechiammal and Mariyayee and they have inherited item nos.6 and 7 and also his 1/3 share in item Nos.1 to 5. Karuppana Pillai claimed right over the property through Parvathiammal and therefore Pechiammal and Mariyayee filed a suit in O.S.No.501 of 1978 for declaration of title and recovery of possession and the suit was transferred and re-numbered as O.S.No.311 of 1982. When Karuppana Pillai died, the 1st defendant, being the wife, was impleaded and there was a compromise between the parties and a decree was passed, which is final and binding. The defendants 2 to 5 have sold items 1 to 4 and 6 to the 7th defendant under a Sale Deed dated 4.4.1992 for a valuable consideration and the 7th defendant is in possession and enjoyment. The 7th defendant had also purchased item No.7 under a Sale deed dated 21.8.1989 from Mariyayee and defendants 2 to 5. He has also purchased item No.8 from the 1st defendant, who is the wife of Karuppana Pillai and the 7th defendant is in possession and enjoyment of all the properties. Item No.5 is in possession of the defendants 2 to 5 and item Nos.9 and 10 are in possession of the 1st defendant. Therefore, the plaintiff has no right or title in the property. The alleged suit in O.S.No.685 of 1988 is a collusive suit which is not binding. The adoption has to be proved independently. The plaintiff has no right or title in the property.
8. Based on the averments, the learned I Additional Subordinate Court at Madurai framed triable issues and on the basis of oral and documentary evidence, found that the plaintiff has not proved the adoption and therefore, dismissed the suit. Aggrieved by the decree and judgment, the plaintiff has come forward with this appeal.
9. The point for consideration that arises in this appeal is whether the plaintiff is the adoptive son of Karuppana Pillai and the 1st defendant and whether the registered adoption deed dated 7.7.1982 which give rise to a presumption for adoption, was rebutted.
10. The admitted facts are as follows:
11. The suit property item nos:1 to 7 orignally belonged to one Ramu Pillai. Ramu Pillai had one son viz., Irulappa Pillai and two daughters viz., Pechiammal and Mariyayee. Pechiammal married to one Sennimalai Pillai and she had two sons viz., one Muthiah and the present 2nd defendant and the daughter is the 1st defendant, who was married to Karuppana Pillai and the said Karuppanna Pillai and the 1st defendant were issueless. One Parvathiammal appears to have married one Irulappa Pillai in the year 1950 as the 2nd wife and the said Karuppana Pillai seem to have claimed right over the property, which belonged to Ramu Pillai. On the death of the Ramu Pillai, the property was inherited by his son Irulappa Pillai and two daughters viz.,Pechiammal and Mariyayee. The said Mariyayee filed a suit in O.S.No.311 of 1982 against Karuppana Pillai and others in respect of the joint family properties and on the death of Karuppana Pillai, the 1st defendant was recognised as the legal heir and a decree was passed in favour of Mariyayee. One Ganesan filed a suit in O.S.No.685 of 1988 against Karuppana Pillai and on the death of Karuppana Pillai, the plaintiff, being an adoptive son was impleaded as party.
12. The disputed facts are that the plaintiff claims that he is the adoptive son of Karuppana Pillai and all the items of property belong to Karuppanapallai and the plaintiff and on the death of karuppannapillai plaintiff claims _ share along with his adopted mother, the first defendent. On the other hand the defendants dispute the adoption and claims that the properties belong to the defendants 2 to 5, who are the decendents of Ramu Pillai, the father of Irulappa Pillai.
13. Mr.K. Srinivasan, learned counsel for the appellant would submit that the plaintiff has proved by oral and documentary evidences that he was adopted by Karuppana Pillai. The learned counsel pointed out that he was adopted in the year 1970 when he was five years old and the factor of such giving and taking for adoption was stated by the biological parents who were examined as P.Ws.2 and 3. The learned counsel also pointed out that the adoption was spoken by P.W.4, an independent witness, who would also speak about the registered adoption deed which is marked as Ex.A.48. The The learned counsel further pointed out that one Parvathiammal who was the wife of Irulappa Pillai had also executed a Will in 1980 in favour of Karuppana Pillai and the same was spoken by P.W.5, an attesting witness.
14. The learned counsel for the appellant relied on a decision reported in 100 LW 71 (Kanthammal vs Bysani Sriramulu Chetti), wherein, this Court has held as follows:
"16. ...... It is not necessary in all these cases to produce direct evidence of the fact of the adoption; where it took place long ago and where the adopted son has been treated as such by the members of the family and in public transactions, every presumption will be made that every circumstance has taken place which is necessary to account for such a state of things as is proved, or admittedly exists. Devi Prasad vs Triveni Devi, where an adoptive father singed the declaration in the admission form in the school that the boy was his adopted son, it is sufficient proof of adoption and it is binding on the persons claiming through the adopter if the adoption is challenged after a long time Umesh Bhagat v Ramkumari Devi. Where there is a recital of an adoption in a sale deed of less than Rs.100 in value, but more than 30 years old, the presumption of a valid adoption may be drawn Bodda Veeriah vs Aripirala Venkata. To insist upon proof of factum of adoption in such cases would lead to the anomaly that the older the adoption set up the more vulnerable becomes the occupant's position Ramakrishna Pillai vs Thirunarayana Pillai.".
15. Regarding the disputed marriage of Parvathiammal with Irulappa Pillai, the learned counsel for the appellant relied on a decision reported in 1997 (2) LW 459 (Shantinath Ramu Danole and another vs Jambu Ramu Danole and Others), wherein the Apex Court has held as follows:
"7. .... The evidence of general reputation for purpose of proof or disproof of a marriage is admissible. This is apparent from the Illustration given in Section 50 itself of the Evidence Act. A reference may also be made with advantage of a decision of this Court in the case of Dolgovinda vs Nimai Charan AIR 1959 SC 914 wherein it has been held that under Section 50 when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact".
16. The learned counsel for the appellant submits that under Sec.16 of The Hindu Adoptions and Maintenance Act, 1956, whenever any registered document is produced before Court purporting to record an adoption, the Court shall presume that the adoption has been made and to that proposition, the learned counsel relied on a decision reported in 2002(2) CTC 173 (Jai Singh vs Shakuntala), wherein the Apex Court has held as follows:
"14. It is on this factual backdrop, the High Court upon, recording the fact of the presumption being rebuttable, came to a conclusion negating the adoption. On the wake of the aforesaid, we do not see any reason to lend concurrence to the submissions of Mr.Jain that the statutory presumption should give way to all other instances available on record."
17. He has also relied on a decision reported in AIR 1975 Karnataka 79 (Mahadev vs Bainabai) for the same preposition.
18. On the contrary, Mr.S. Subbiah, learned counsel for the respondents submitted that the adoption has to be proved independently by the plaintiff. The learned counsel pointed out that the deed of adoption was not mentioned by the plaintiff or by the witnesses and the evidence let in by the biological parents are not enough and the ceremonies and rites which constitute a valid adoption ought to have been independently proved by the plaintiff.
19. The learned counsel for the respondents further pointed out that the presumption under Sec.16 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter called as "Act), is not available to the plaintiff as the presumption was rebutted by the defendants by letting evidence that the thumb impression of Karuppana Pillai was obtained by the father of the plaintiff terming the deed as mortgage deed.
20. The learned counsel also pointed out that when the presumption is rebuttable, the trial Court was right in holding that the adoption was not proved in accordance with law. The learned counsel also pointed out that the alleged Will executed by Parvathiammal was not produced by the plaintiff. In the absence of any Will, mere oral evidence by an attesting witness is not enough to confer a title for Kauppana Pillai. The learned counsel further pointed out that Item Nos.1 to 5 admittedly belonged to one Irulappa Pillai and the defendants 2 to 5 who are the sisters and sister's children of Irulappa Pillai, inherited the same.
21. Regarding the presumption under section 16 of the Act, the learned counsel relied on a decision reported in AIR 1982 Orissa 114 (Krushna Chandra Sahu and another vs Pradipta Das and Others), wherein the High Court of Orissa has held as follows:
"4.... Therefore, no presumption can be drawn under S.16 of the Act as regards giving in adoption by the natural father. It, therefore, follows that the defendants have failed to establish their claim of adoption. Another staggering feature of the case is that admittedly no consent of Gitarani, the wife of Debendranath was taken for the alleged adoption. S.6 of the Act provides that no adoption shall be valid unless it be made in accordance with the other conditions mentioned in the Chapter. According to the proviso toS.7 of the Act if the person taking the son in adoption has a wife living, he shall not adopt except with the consent of his wife unless the wife 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. In the instant case, it is nobody's case that gitarani has 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. Thus even if there was an adoption it is invalid due to non-compliance with the requirements of the proviso to S.7".
22. The learned counsel also relied on the decision reported in (1999) 5 SCC 673 (Chairman Bihar Rajya Vidyut Board vs Chhathu Ram and Others) for the same preposition.
23. The learned counsel also pointed out that the alleged adoption in the year 1970 was not proved by any independent witnesses. The rituals and rites which constitute a valid adoption was not mentioned by any of the witnesses. The learned counsel further pointed out that the registered adoption deed was executed on 7.7.82 and at the time of execution of such document, the plaintiff was more than 15 years old and under Sec.10 of the Act if he has completed 15 years, the custom and usage for such adoption must be proved.
24. The learned counsel relied on a decision reported in 1989 (2) MLJ 341 (Mahalingam vs Kannayyan and another) , wherein this Court has held as follows:
"5. ... As already noted, one of the four qualifications set out in Section 10 of the Act is that the person, who is to be adopted should not have completed the age of fifteen years. If there should be an exception as contemplated in that clause, certainly, there has got to be a pleading and proof of the same. By having resort to section 16 of the Act, it is not possible to dispense with the said pleading and proof section 16 has no relevance at all with regard to the exception set forth in section 10(iv) of the Act."
25. The learned counsel also relied on a decision reported in 2006 (14) SCALE 27 (Bhimashya and Others vs Smt.Janai @ Janawwa) for the same preposition.
26. The learned counsel also submit that the 1st defendant has not signed in the registered adoption deed and therefore, the registered deed cannot be accepted and relied on the decision reported in AIR 1984 Allahabad 44 (Ram Jagat vs Smt.Kanchandei and another), wherein it is held as follows:
"9. Section 16 of the Act clearly indicates that if the plaintiff sets up an oral adoption in a suit, he has to prove all the conditions of a valid adoption. If however, the adoption is evidenced by a document in writing which is also registered, then a presumption has necessarily to be drawn by the court that the adoption was made in compliance with the provisions of the Act. This is a mandatory requirement. But the presumption would arise only if the document is signed not only by the person adopting the child but also by the person giving the child in adoption. If this condition is not satisfied, the Court will not be bound to rely upon the statutory presumption. The presumption required to be drawn by the provisions of S.16 of the Act is of course a refutable presumption".
27. Heard both sides and perused the materials available on record.
28. The suit is filed for partition claiming that the plaintiff is the adopted son of one Karuppana Pillai and the 1st defendant, who were husband and wife. Since the plaintiff is claiming that he is the adopted son, the factum of adoption has to be proved in the manner known to law.
6. Requisites of a valid adoption :
No adoption shall be valid unless
(i) the person adopting has the capacity, and also the right to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter."
Sec.10 of the Act reads as follows:
"10. Persons who may be adopted: No person shall be capable of being taken in adoption unless the following conditions are fulfilled namely,
(i) he or she is a Hindu
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption:
Sec.11 of the Act reads as follows:
11. Other conditions for a valid adoption: In every adoption, the following conditions must be complied with:
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption);
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is atleast twenty one years older that the person to be adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption:
29. It is well settled that in case of adoption the burden of establishing that there was valid adoption which deflected the ordinary course of succession is on the party who pleads the case of adoption. The factum of adoption, validity and legality are based upon the fact of giving and taking. The plaintiff claims that he was five years old at the time of adoption and it took place in the month of "Ig;grp" 1970. It was pleaded by the plaintiff that he was five years old and the adoption took place in 1970 in an auspicious day at Arulmighu Muthiah Koil at Kochadai. In his evidence he would improve and state that the adoption was effected on 12th of "Ig;grp" at Kochadai. The evidence of P.Ws.2 and 3, who are the biological parents of the plaintiff, cannot be taken into consideration for the adoption. P.W.4 would state that he was present at the time of adoption and he could not say who were all present at the time of adoption.
30. The plaintiff mainly relies on Ex.A.48, a registered deed of adoption.
According to the plaintiff, the presumption has to be drawn under Sec.16 of the Act for an adoption. Sec.16 of The Hindu Adoptions and Maintenance Act, 1956 reads as follows:
"16. Presumption as to registered documents relating to adoption:
whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."
31. Mere production of a registered deed acknowledging the adoption containing recitals regarding giving and taking of adoption are not sufficient to constitute legal adoption in the absence of evidence about the actual giving and taking. If however, the adoption is evidenced by a document in writing which is also registered, then a presumption has necessarily to be drawn by the court that the adoption was made in compliance with the provisions of the Act. This is a mandatory requirement. But the presumption would arise only if it records an adoption made immediately prior to the execution of the document. Though there is any time limit under the provision, a reasonable time evidencing such adoption is required. If the execution of an adoption deed is after a lapse of considerable time, then the earlier giving and taking of adoption has to be proved independently and the mere production of the deed of adoption will not give rise any presumption.
32. According to the plaintiff, he was given in adoption in the year 1970. Except the evidence of P.W.4, there is no other evidence to prove or to speak about the actual giving and taking. Only in the year 1982 i.e., after twelve years, a registered deed Ex.A.48 has been executed evidencing the earlier adoption. The adoptive mother is not a signatory to the said deed. If the earlier adoption in the year 1970 is not proved, then the presumption is only on the date of adoption dated 7.7.82. Admittedly at the time of execution of the deed, the plaintiff was more than 15 years of age. Again the burden is upon the plaintiff to prove that there is a custom and usage for an adoption of a boy who is above 15 years. Sec.10 of the Act restricts the age below 15 years for adoption unless the custom and usage permits.
33. The conduct of the parties after the adoption is also important. The plaintiff must establish that he was living with the adopted parents. Even according to the plaintiff, the 1st defendant was not living with her husband Karuppana Pillai. The presumption under Sec.16 is a rebuttal presumption. While rebutting the presumption the burden on the defendant is not that much heavy and mere preponderance of probability is enough to rebut the presumption. When there is a suspicious circumstances in executing the document after a considerable time and the earlier adoption was proved satisfactorily the presumption under section 16 of the Act can not be drawn. The defendants have taken a definite plea and also let in evidence to the effect that the father of the plaintiff had advanced some money and insisted for execution of a mortgage deed from the said Karuppana Pillai and such execution of a deed was converted into an adoption deed. P.Ws.1 and 2 would admit that there was a money transaction between P.W.2 and Karuppana Pillai and in fact a mortgate deed was also executed. Apart from this, there is no explanation from the plaintiff that why the 1st defendant, the adoptive mother was not a party to the adoption deed. Therefore, mere production of registered adoption deed is not sufficient to prove the adoption and the defendants have rebutted the presumption by their pleadings and their evidence that there is a probability that the Karuppana Pillai was coerced to execute the document.
34. For the reasons stated above, I am of the view that the plaintiff has not proved the adoption.
35. As far as the title of the property is concerned, the claim that one Parvathyammal executed a Will in favour of Karuppana Pillai and he became entitled to the property of Irulappa Pillai does not hold good. Surprisingly, an attesting witness was examined and would state about the execution of such Will, but the will was not produced before the Court. Therefore, as far as item Nos. 1 to 5 are concerned, the said Karuppana Pillai had no right or title. This fact is also fortified by a decree in O.S.No.311 of 1982 which was filed by one of the daughters of Irulappa Pillai.
36. In impleading the plaintiff as the legal heir of Karuppana Pillai in O.S.No.685 of 1988 will not come to the aid of the plaintiff to prove the adoption. As stated earlier, the burden is upon the plaintiff to prove the adoption independently. Therefore, the plaintiff has miserably failed to prove the adoption and he has to fail in a suit of partition claiming a right as an adoptive son of Karuppana Pillai.
37. In the result, the appeal is dismissed and the judgment and decree of the Trial Court in O.S.No.738 of 1992 dated 10.2.1994. is confirmed and No costs.
sr To The I Additional Subordinate Court at Madurai