Madras High Court
R. Meenakshi Ammal vs Velusamy, Karuppanna Thevar, ... on 18 July, 2002
Equivalent citations: AIR2003MAD35, (2002)3MLJ305, AIR 2003 MADRAS 35, (2002) 3 MAD LJ 305
Author: Prabha Sridevan
Bench: Prabha Sridevan
JUDGMENT Prabha Sridevan, J.
1. The appellant and the first respondent are brother and sister. The first respondent claims to have been given in adoption to his maternal aunt. The appellant's case is that there was no such adoption. This in brief is the crux of the dispute.
2. The history of the case starts with one Seenia Pillai who had two daughters, Kanneyee Ammal and Pechi Ammal. Kanneyee Ammal was married to Karuppiah Pillai and Pechi Ammal was married to Subba Pillai alias Palaniya Pillai. Pechi Ammal had no issues. Kanneyee Ammal had two children who are the appellant and the first respondent. Karuppiah Pillai died in 1936; Kanneyee Ammal died in 1937. The first respondent claims that the adoption took place sometime in 1935 or 1936. Subba Pillai died in 1952 and Pechi Ammal died on 09-02-1977. It is clear from the materials on record that the first respondent was brought up by the aunt Pechi Ammal and naturally so, since he was about 7 years old when his parents died and the appellant was about one or two years old at that time. But the fact that they brought them up will not be a proof of adoption. In 1978, the appellant filed this suit claiming partition of the property belonging to Seenia Pillai which had devolved on his two daughters.
3. In the written statement, the first respondent claimed to have been given in adoption in or about 1935 by his natural parents to Subba Pillai @ Palania Pillai and Pechi Ammal. According to him, Pechi Ammal also brought up the appellant since she was an orphan and had met her marriage expenses by selling certain properties.
4. The suit properties are five in number. According to the first respondent item No.1 of the suit property was incorrectly described in the plaint and out of the entire extent of six acres and six cents, a portion had been sold to the second respondent(now deceased) and his wife and the remaining two acres is in the possession of the second respondent as a cultivating tenant and that the patta for the said lands are in the name of the first respondent. Item No.2 of the suit property was said to have been taken over by the Government and therefore, not liable to partition. Item No.3 of the suit property was alleged to have been sold by the first respondent and the adoptive mother Pechi Ammal to one Mani, years ago. Item No.4 had been sold to meet the marriage expenses of the first respondent's daughters. Finally, item No.5 did not belong to the family of Seenia Pillai, but only belong to Subba Pillai. Therefore, the appellant was not entitled to claim any right. The defendants 6 to 10 are the purchasers pending litigation.
5. A reply statement was filed by the appellant where the adoption was denied as also the exclusive claim made by the first respondent to the property. The Trial Court dismissed the suit and held that the adoption was valid.
6. Mr. M.Sathyanarayanan, learned counsel for the appellant would submit that the adoption has not been proved in accordance with law. He pointed out to the discrepancies in the oral evidence of D.W.1, the first respondent and D.W.2, the second respondent, who claims to have been the witnesses to the adoption. According to D.W.2, the adoption took place in 1935 at Item No.4 of the suit property and according to D.W.1 the adoption took place in 1935 in item No.5 of the suit property. It was submitted that when the pleadings are silent regarding the attendant circumstances of adoption and when no mention is made of the persons who witnessed the adoption,it is not open to the respondent to set up a case as though the second respondent was present at the time of adoption. In any event, the second respondent and his wife had been given valuable property i.e. item No.1 of the suit schedule property, and hence it was submitted that he was an interested witness and no weightage can be attached to his evidence. Exs-B34 and B35 are sale deeds executed by Kanneyee Ammal in which the first respondent is described as her son. In fact one of the sale deeds is in favour of Subba Pillai, the alleged adoptive father of the first respondent. These two sale deeds are just one year after the so-called adoption and therefore, it would prove that there was no adoption. On the other hand, the documents relied on by the first respondent to show his adoption are all much later and even there a description as a son might have been loosely used. After Kanneyee Ammal's death in 1937 the children had no one to turn to except Pechi Ammal and her husband and therefore, it can very well be true that he was brought up as if he was their own child. Unless the adoption is proved, the suit cannot be dismissed.
7. It was further submitted that if there is no proof of adoption then Pechi Ammal's property will devolve equally on the appellant and the first respondent. The heirs of Seenia Pillai were only his two daughters. After Seenia Pillai's death Pechi Ammal had been dealing with the property. Upon the death of Pechi Ammal, the estate should go to the heirs of her father as per S. 15(2) of the Hindu Succession Act. The heirs of the father as on 19-07-1977 were also the same two children, namely the appellant and the first respondent. Therefore, the suit should be decreed as prayed for.
8. The learned counsel relied on the following judgments:
(1)V. Ravichandran Vs. R. Ramesh Jayaram (1999 I MLJ 223), where the Division Bench of this Court had dealt with a case of adoption. This ofcourse is subsequent to the Hindu Adoption and Maintenance Act. The Division Bench held that if the essentials of the valid adoption is absent then the adoption is not proved.
(2)Bhagat Ram Vs. Teja Singh (1999 (2) L.W. 520 = 2002 I CTC 178) and (3)Sundarathammal Vs. Rathinathammal (2001 I L.W. 557) In the decisions referred to above as (2) and (3), the rule of succession in the case of a Hindu family as per S. 15(2) of the Succession Act had been dealt with.
9. Mr. P.T.S. Narendravasan, learned counsel for the respondent would submit that the adoption has been proved in accordance with law. The witness D.W.1, the first respondent had spoken about it and more importantly D.W.2, who is an old man had clearly stated that he was given in adoption by the natural parents and taken in adoption. The fact that there are discrepancies in the house numbers should be seen against the background that the witness is speaking of an event that took place fifty years ago. The counsel referred to several sale deeds in which the first respondent has been described as the @RtPfhu g[j;jpud;@ of Pechi Ammal. Therefore, the adoption must be held to be proved. Even if the adoption is not proved, the suit must fail because the appellant has not shown that the suit properties belong to Seenia Pillai. It was submitted that she had not denied that the properties had been sold to meet her marriage expenses. It was submitted that Pechi Ammal was without an issue and so was likely to have adopted the first respondent pious belief that the son would perform the oblations. Therefore, the Trial Court rightly believed that he was taken in adoption.
10. Item No.1 of the suit property was not available for division since a portion was sold to the second respondent and the balance was in his possession as cultivating tenant. The second item of the suit property was taken over by the Government which is admitted by P.W.1. Item No.3 has been sold for the necessary expenses namely the marriage expenses of the appellant as well as the medical expenses of the natural mother of the first respondent. Item No.4 belonged to Seenia Pillai's brother Ramasamy Pillai and had been gifted to Pechi Ammal and therefore, the appellant cannot claim a share. Item No.5 belongs to Subba Pillai which was admitted by the appellant and therefore, not available for partition. It was submitted that there is no error in the decision of the Trial Court and it should be confirmed.
11. Regardless of the truth and validity of adoption, the Trial Court had failed to take note of the fact that Seenia Pillai's estate had devolved on his two daughters and in any event, the appellant will have a share in the same. If the adoption is proved then the appellant is solely entitled to her mother Kanneyee Ammal's share which should be half of the estate of Seenia Pillai and the other half will be taken by first respondent as the heir to Pechi Ammal's share. If the adoption is not proved then whether the estate of Seenia Pilla was enjoyed by Pechi Ammal or Kanneyee Ammal, the only heirs are the first respondent and the appellant in which case also, she will be entitled to half of the share. So in any event the appellant will get a half share in the properties belonging to her grandfather Seenia Pillai.
12. With regard to the factum of adoption, the appreciation of evidence of witnesses speaking of the adoption has been dealt with both in the Division Bench judgment of this Court as well as the judgments relied on by the learned counsel for the respondent in Voleti Venkata Rama Rao Vs. Kasapragada Bhaskararao , the learned Division Bench of the Andhra Pradesh held as follows:
"Where an adoption, perfectly suitable in all respects and acted upon for a long period of nearly 50 years, is questioned, every allowance for the absence of direct evidence to prove such fact must be favourably entertained. And a strong presumption must be made in favour of the validity of adoption, where the long delay is not satisfactorily explained."
In this case, D.W.2 is 80 years old, when he gave the evidence. The discrepancy is with regard to the place where the adoption took place. According to D.W.2, it was Door No.2, which is item No.4 of the suit property, whereas according to D.W.1, the first respondent himself it took place at Door No.14, which is item No.5 of the suit property. If the adoption is perfectly suitable in "all respects" and it was acted upon for a long period, then every allowance for the absence of direct evidence to prove such fact must be favourably entertained.
13. It is no doubt true that D.W.2 talks of a priest performing the homam, offering butter and ghee in the sacrificial fire and that Kanneyee Ammal and Karuppiah Pillai gave the son in adoption saying that he was no longer their son and that from that day henceforth he was the son of Pechi Ammal and Palania Pillai. It may be understandable that D.W.1, himself does not know of the month and year of adoption since he was very young then. But, D.W.2 also does not know when the adoption took place. His evidence is, @Rkhh; 50 tU&';fSf;F Kd; jj;J vLj;jpUf;fyhk;/ ve;j khjk; vd;W Fwpg;gpl;L Tw KoahJ/ ve;j tU&j;jpy; ntYr;rhkpia jj;J vLj;jhh;fs; vd;W Fwpg;gpl;L Tw KoahJ@/ Therefore, there is no evidence regarding the day, month or year of adoption. Whereas in the case before the Andhra Pradesh High Court, the D.W.2, who spoke of the adoption was the priest, who presided over the adoption and he had clearly stated that it took place in the month of Vysyakah and in the year Krodhi.
14. In the case on hand, the first respondent had not stated that D.W.2 was present at the time of adoption. D.W.2, belongs to a different community whereas his pleadings are to the effect his adoption was well-known to all the family members and 'pangalis' of the natural family as well as the adoptive family. There are no pleadings to the effect that people in the same village had been invited and they were all present at the ceremony. Therefore, in the absence of any pleadings regarding the presence of D.W.2, and the vagueness of D.W.2's evidence regarding the date of adoption and the door numbers and that he is interested in supporting the adoption because he had obtained a sale deed from the first respondent and Pechi Ammal, cannot be the sole basis for proof of adoption.
15. 1999 I MLJ 223(cited supra) stands on a solely different footing because in that case the person claiming to have been adopted belonged to one community and the person alleged to be the adoptive parents belonged to a totally different community and the Division Bench dealt with a number of judgments of the Supreme Court and other High Courts in which principles relating to adoption had been laid down and the learned Judges observed that, "the evidence to prove the ceremony of giving and taking, should be such that it is free from all suspicions of fraud and so consistent and probable as to give no occasion for doubting its truth."
In that case also there was no registered document pertaining to the adoption and the Division Bench warned that the Court must be very cautious to guard persons against being ensnared by unscrupulous persons who indulge in grabbing the properties. In that case, the so-called adopted son was a son of a servant-maid and therefore, the criticism might have been harsh.
16. In this case, the first respondent is the nephew and therefore, a likely candidate for adoption. Still, when he claims adoption and exclusive right to property, his evidence should free from all suspicion. The evidence of D.W.1, the first respondent is also not very consistent in this regard. In his chief examination, he had stated that because his parents wished, he was given in adoption and that he was about 6 or 7 years and he remembers all the details clearly. In his chief examination, he mentions the presence of D.W.2, though not in the pleadings. Two persons are referred to as having been present on that date, who are still alive and they are D.W.2 and one Ramasamy Pillai. Ramasamy Pillai was not examined and while D.W.2, spoke of the homam, the priest and the offering of ghee to the sacrificial fire, D.W.1, merely says that he was handedover to the adoptive parents and they gave milk to him.
17. Karuppiah Pillai's date of death was 26-12-1936 as per Ex-B1, one year after adoption. But Ex-B1 shows that there is no death entry in the register and it has been issued only on the strength of the particulars given by the application. So in the absence of any other proof regarding the date of birth of Karuppiah Pillai we do not know if he died on 26-12-1930 or earlier. On the other hand, the date of death of Kanneyee Ammal is 18-08-1938 vide Ex-B2 an extract of the the original records. In the cross examination, D.W.1 had stated that he was not taken in adoption in 1935 but only in 1936. Then he changed his mind and said that he was taken in adoption only in 1935 and it was a mistake to say that he was taken in adoption in 1936. It is clear that there is no written or photographic evidence to speak of the adoption and he had subsequently stated that, @vd;id RtPfhuk; vLj;j rkaj;jpy; me;j 1935 Mz;L vd;fpw tpguk; vdf;F bjhpahJ/ RtPfhuj;jpw;F 4 my;yJ 5 Mz;Lfs; fHpj;J ngr;rpak;khs; brhd;d tptuj;jpd; nghpy; 1935k; Mz;oy; RtPfhuk; vLj;j tpguk; vdf;F bjhpa te;jJ/@ At the time of the so-called adoption ceremony Kanneyee Ammal was said to have been seven months pregnant with the appellant. So on that date the first respondent was not only the only son, but also the only child. The likelihood of the first respondent being given in adoption in these circumstances must be tested.
18. N.R. Raghavachariar's Hindu Law, 8th edition, paragraph 137 deals with adoption of an only son:
"An adoption of an only son is not null and void under the Hindu Law and the text of Vasishta prohibiting it is only directory and not mandatory."
19. A reference was made in the above text to Mariammal Vs. Govindammal((1984)97 L.W. 490)and Raghavamma Vs. Chenchamma (AIR 1964 SC 138) wherein it was held that though there is no prohibition in law of adoption of an only son the circumstance that the adoptee is the only son of his natural father has always been weighed as a circumstance against the adoption.
20. Two more pieces of evidence demonstrate that in fact there was no adoption at all.
(a) Ex-A34 is dated 21-11-1936. This is a mortgage deed executed by Kanneyee Ammal on behalf of herself and her minor son Velusamy and by Palania Pillai in favour of one Kaveri Ammal. D.W.1, categorically states that the adoption was in 1935. If so there was no reason why the natural mother should have referred to the first respondent as her son when the other co-executant is the so-called adoptive father. Therefore, atleast as on 21-11-1936 there was no adoption.
(b) Next is Ex-A35 which is executed by one Palania Pillai in 1935 after the death of Kanneyee Ammal and the recitals read as follows:
@i& fz;zhap mk;khs; fhy";brd;W tpl;ljhYk; i& fz;zhap mk;khspd; kfs; ikdh; ntYr;rhkp ikduha; ,Ug;gjhYk; i& ikdhpd; ed;ikf;fhft[k; jh';fs; ,jd; K:ykha; i& $h/ fhnthp mk;khSf;F mry; fz;l Mjut[fs; rfpjk; thg!; th';fpf; bfhz;oUf;fpw tifapy; vd; gw;whdJ /// @ Therefore, even after the death of Kanneyee Ammal, Palania Pillai has referred to the first respondent as her minor son and not as his adopted son. There could not have been any adoption thereafter because as per the Ancient Hindu Law, an orphan cannot be adopted and in any case, the first respondent claims to have been given in adoption by his parents to Pechi Ammal and Palania Pillai.
21. Ofcourse, there are other documents in which Palania Pillai has referred to the first respondent as his son and also as his @RtPfuu g[j;jpud;@. But this cannot have a greater evidentiary value than Ex-A34 and Ex-A35 which are almost contemporaneous to the alleged adoptions. Pechi Ammal and her husband, who were issueless, in all probability took care and treated the first respondent and his sister as their own children. In Ex-B3, there is reference to the first respondent as Pechi Ammal's son and both of them have sold the properties to D.W.2. This document is dated 11-06-1956 about six days before the Hindu Succession Act came into force. Therefore, it is quite understandable that D.W.2, took the precaution of binding the interest of the first respondent also while obtaining the sale deed. In 1966, for the first time under Ex-B4, there is reference to the first respondent as the adopted son of Pechi Ammal but when there is no other evidence to show that there was an adoption it is not possible to accept the case of the first respondent merely because he was described as such in Ex-B4.
22. The law of adoption is now governed wholly by the Hindu Adoptions and Maintenance Act, 1956. The adoption in the present case is one that is alleged to have been made on a date that is prior to that and therefore, only the earlier Hindu Law governs it. N.R. Raghavachariar's Hindu Law states that the whole Sanskrit Law of Adoption is evolved from two texts and a metaphor. The texts are those of Manu and Vasishta and the metaphor is that of Saunaka. Manu says:
"He whom his father or mother gives to another as his son, provided that the donee has no issue, if the boy be of the same class, and affectionately disposed, is considered as a son given, the gift being confirmed by pouring water." (Manu, ix, S.168).
Vasishta's text is "A son formed of sexual fluids and of blood, proceeds from his father and mother as an effect from its cause. Both parents have power to sell, or to desert him. But let no man give, or accept, an only son, since he must remain to raise up a progeny for the obsequies of ancestors".
Under the Hindu Law it is also essential for the validity of an adoption that the child should be given to the adopter by the father or if dead, by the mother. No other person has the right nor can the same be delegated to any other. The effect of adoption is a complete severance of the child adopted from the natural family in which he was born and complete substitution into the adopter's family as if he were born in it. It is as if he is new born in the family of his adoptive father.
23. There are many decisions pertaining to adoption prior to 1956 in which it is laid down that the only essential feature of the adoption is not the sacrificial fire or the homa, but the act of giving in adoption and taking in adoption. No doubt, D.W.2 speaks of this. As already stated it is not possible to accept that the adoption has been proved merely from this statement. The appellant had produced a marriage invitation in which she has been referred to as the daughter which is denied by the first respondent as a false document and that, in their community, wedding invitations were not printed. Even if this document is not taken into account, since these two children had been left alone by the parents as orphan, it is quite likely that Pechi Ammal and her husband brought up the two children, of Kanneyee Ammal and Karuppiah Pillai as their own.
24. There is no documentary evidence of adoption. There is no photographic evidence of adoption. No one knows about the date, month or year of adoption. There is discrepancy regarding the place at which the adoption took place. In those circumstances, it is difficult to believe that an only child was given in adoption.
25. As held in para No.11 supra, whether there is adoption or no adoption, the appellant is entitled to a half share in Seenia Pillai's properties. The case of the first respondent is that one of the property was sold to celebrate the marriage of the appellant and this is not really denied by the appellant. We must consider which items of the suit properties are available for partition.
(a) As regards item No.1, the first respondent would state that this was sold to celebrate his daughter's marriage to D.W.2 and his wife and the remaining portion is in the possession of D.W.2 as a cultivating tenant.
(b) As regards the second item of the suit property, the case of the respondent is that the Government took away the property as it was Ayyanar Maniam. P.W.1 would say that there is proof that it belongs to Seenia Pillai. But no such evidence is produced. Therefore, it must be held that item No.2 of the suit property is not available for partition.
(c) As regards item No.3 of the suit property, according to the appellant it is an extent of 1.07 acres. Whereas according to the first respondent, it is only 50 cents. In the written statement the first respondent would plead that this item is 50 cents and not 1.07 cents and it is already been sold by Pechi Ammal and Subba Pillai @ Palania Pillai to Mani of Seegupatti Village, Ex-B4. In his evidence as D.W.1, the first respondent had stated that Pechi Ammal had fallen down and broken her leg and she had to be given treatment and at that time item No.3 of the suit property was sold to Mani's wife. Though P.W.1 denies that it was sold, she has admitted that Pechi Ammal was not well and that she had to take treatment for one month in the hospital and three months thereafter as outpatient, and that this incident took place 15 years ago. She however, denies that there was a necessity to sell the property for her treatment. Though she has denied that suggestion that she had not asked the first respondent regarding the sale of this property only because she knew that it was used for the mother's medical expenses she admits that this property is only 50 cents. The evidence of D.W.1 and the admission of P.W.1 regarding the mother's illness clearly shows that the suit property was sold prior laying to the suit for partition and for necessary expenses. Therefore, it must be held that this property is also not available for partition.
(d) As regards item No.4, the case of the first respondent is that it was ancestral property of Seenia Pillai, allotted to Ramasamy Pillai, brother of Seenia Pillai and it was gifted to Pechi Ammal. There is no evidence regarding that. But there are documentary evidence to show that Pechi Ammal has dealt with it as the exclusive owner and hence this is liable for partition.
(e) Item No.5 belonged to Subba Pillai @ Palania Pillai and therefore, the appellant cannot claim any share in this.
26. There are references in the exhibits to item Nos.1 and 4 as though they were either inherited from Seenia Pillai or they belonged to Pechi Ammal either as a gift from Ramasamy Pillai or by otherwise. Pechi Ammal died inte state, so succession to her estate in governed by S.15(2) of the Indian Succession Act and any property that Pechi Ammal had inherited from her parents' line will go to the heirs of the father. In this case, they are the grandchildren of her father through the other daughter Kanneyee Ammal. Therefore, whatever right or title the first respondent has, the appellant also equally has.
27. In these circumstances, the judgment and decree of the Trial Court is set aside, and the appeal is allowed insofar as item Nos.1 and 4 are concerned and the appellant shall be entitled to half share in these two items of property. The dismissal with regard to other items are confirmed. No costs.