Madras High Court
Mahalingam vs Kannayyan And Anr. on 19 April, 1989
Equivalent citations: (1989)2MLJ341
JUDGMENT Nainar Sundaram, J.
1. In this second appeal, the scramble is for the property which originally belonged to one Lakshmana Pillai. Lakshmana Pillai had a first wife by name Parvathammal. He also had a second wife by name Marudambal Achi. We are not concerned with the second wife Lakshmana Pillai had no male issues. He had two daughters. Sam-poornam and Amirthavalli. The plaintiff in the suit is the son of Sampoornam. The first defendant in the suit is the son of Amirthavali. The second defendant is the father of the first-defendant. On 11-6-1934 Lakshmana Pillai executed a deed of settlement as per the original of Ex.A.1.giving the suit property to his first wife Parvathammal for her life and delineating the devolution to his heirs after the lifetime of Para-vathammal. On 8-6-1964 Lakshmana Pillai took in adoption the plaintiff, as we could see from Ex.A.2. Lakshmana Pillai died thereafter. On 18-6-1976, as per Ex.B.1, Paravathammal executed a Will giving the suit-property to the first-defendant. Paravathammal died in July, 1976. The second-defendant would claim that he is a cultivating tenant of the suit-property. The plaintiff laid the suit for recovery of possession and for mesne profits. The defendants would contest the suit stating that the adoption was not true and even otherwise it was not valid and as per the Will of Parvathammal the first-defendant must get at the suit property absolutely.
2. The first Court, finding that the plaintiff at the time of the adoption as per Ex.A. 2 was 21 years old, discountenanced the validity of the said adoption. The first Court also discredited the Will relied on by the first-defendant as not valid in the eye of law for the reason that Parvathammal had only a life estate and that came to an end with her life and that no right devolved on the first-defendant as per the Will Ex.B.1. The first Court repelled the case of the second defendant that he is a cultivating tenant of the suit property. The suit of the plaintiff was dismissed. The plaintiff preferred an appeal to the lower Appellate Court. It must be noted here that the defendants did not canvass any of the findings rendered by the first Court against them by way of any cross-Objection. The lower Appellate Court upheld the validity of the adoption on the ground there ought to have been a custom in the community to which the parties belong, permitting adopting of the person, who has completed the age of fifteen years. However, on the basis of the finding rendered by the first Court that as per the terms of the original of Ex.A.1. Parvathammal had only a life-estate and after her lifetime all the heirs of Lakshmana Pillai are entitled to get the suit-property and since all the heirs of Lakshmana Pillai are not before Court, the suit must fail on the ground of nonjoinder of parties, dismissed the appeal and thereby maintaining the dismissal of the suit by the first Court. This Second appeal is directed against the judgment and decree of the lower Appellate Court.
3. It is true that at the time of the admission of the second appeal, questions were formulated by this Court with regard to the propriety of the lower Appellate court in non-suiting the plaintiff on the simple ground of nonjoinder of parties. The defendants/respondents herein have preferred a Memorandum of Cross-Objection, questioning the finding of the lower Appellate Court, advancing a case of custom and usage in the community, permitting adoption of a person, who has completed the age of fifteen years.
4. Mr. A.S. Vijayaraghavan, learned Counsel for the plaintiff/appellant in the second appeal, would submit that the reasoning of the lower Appellate Court that there ought to have been a custom and usage in the community to which the parties belong, permitting adoption of a person, even though he has completed the age of fifteen years, must be accepted and once that is accepted, it would be not in order to throw out the suit on the simple ground of nonjoinder of parties as did by the lower Appellate Court and on the other hand, an opportunity ought to have been afforded by the lower Appellate Court to implead the necessary parties, and then give the plaintiff the appropriate reliefs. As against this, Mr. N. Vanchinathan, learned Counsel appearing for the first-defendant/first-respondent in the second appeal, would submit that in the plaint there was no plea of custom or usage applicable to the parties, which permitted persons who have completed the age of fifteen years being taken in adoption and equally so there is no evidence in the case and the lower Appellate Court committed an error in advancing a case not founded on the pleadings and on the evidence on record. Mr. A.S. Vijayaraghavan, learned Counsel for the plaintiff/appellant herein would submit that when there is a registered document evidenceing the factum of adoption, as per Section 16 of the Hindu Adoptions and Maintenance Act 78 of 1956, hereinafter referred to as the Act, the Court has to presume that the adoption has been made in compliance with the provisions of the Act, unless and until it is disproved and in the instant case, the, first-defendant has not ventured to disprove or rebut this legal presumption.
5. Section 10 of the Act sets out four qualifications for a person being validly taken in adoption and it runs as follows:
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.
We are, for the purpose of this case, concerned with Clause (iv). It says that the person to be adopted should not have completed the age of fifteen years. It also sets out an exception to the required qualification. The exception is, if 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, such a person could be validly adopted. section 16 of the Act reads as follows:
When ever 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.
The implication of Section 16 of the Act is: If there is any document purporting to record an adoption made and it is signed by the person giving and the person taking the child in adoption, and that document is registered under any law for the time being in force and it is produced before any Court, the Court shall presume that the adoption has been made in compliance with the provisions of the Act, unless and until it is disproved. When Section 16 speaks about compliance with the provisions of the Act, it has reference to the general requirements under the Act with regard to a valid adoption. The general requirements take in what has been laid down in Section 10, Clause (iv) thereof sets down the requirement regarding the age of the person to be adopted as fifteen years. If the conditions as per Section 16 are satisfied, there could be a presumption also as to the satisfaction of the requirement of the age being fifteen years. But when the admitted position is that the age of the person adopted was over fifteen years, then it could only come under the exception, and the validity of such adoption could be upheld only when the custom or usage applicable to parties permitting the adoption of a person over the age of fifteen years is proved and established. The simple reason is, with regard to an exception, there could not be a presumption, legal or otherwise. Exception is a departure from the normal and general requirements. An exception takes the case from the purview of general requirements. An exception must be proved and it cannot be presumed. When an exception is engrafted in the main part of the provision to the effect that on satisfaction of certain conditions, the general requirements need not be invoked, the onus in regard to such exceptional conditions is on the person who pleads them. An exception must be strictly construed. The presumption under Section 16 does not cover the case of an exception to the general requirements of the provisions of the Act. That is how, Section 16 must be construed. Otherwise, it will lead to anomalous results. Even if there is no satisfaction of the general requirement regarding age, Court will be called upon to presume the exception. This could not be the intendment of the legal presumption under Section 16. There must be plea and proof of the exception under custom or usage spoken to in Clause (iv) of Section 10. Unless that is made out, the exception cannot rule. There could not be a presumption of such custom or usage. Even by a bare reading of Section 16, it is not possible to spell out a theory that it dispenses with pleading and proof in the case of an exception under Section 10(iv) of the Act. 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.
6. In the present case, the pleading with regard to custom or usage prevalent in the community of the parties permitting adoption of persons, who have completed the age of fifteen years, is totally lacking. Equally so, evidence is lacking. The lower Appellate Court committed an error in advancing a new case for the plaintiff when it upheld the validity of the adoption on the ground of custom and usage. In this view, I am obliged to countenance the cross-objection put forth by the defendants/respondents herein. Accordingly, the Memorandum of Cross-Objection preferred by the defendants/respondents herein, is allowed, setting aside the finding of the Lower Appellate Court that the adoption of the plaintiff by Lakshmana Pillai could be sustained on the ground of custom or usage, even though at the time of adoption the plaintiff was of the age of twenty-one years. If the plaintiff's adoption could not be upheld, he is not a heir at all to Lakshmana Pillai. The other question of nonjoinder of parties would not arise at all. The plaintiff must fail since he could not come anywhere into the picture claiming any right in the suit-property. As per the terms of Ex.A. 4, as found by the first Court, which finding has not been disturbed by the Lower Appellate Court, the suit-property must devolve on the heirs of Lakshmana Pillai and it is for them to seek and enforce their rights. Accordingly, this second appeal is dismissed. Parties being close relatives, I direct them to bear their costs throughout.