Madras High Court
V.M. Ramakrishna Mudaliar And Anr. vs Smt. Nagammal Alias Nagabushanammal on 31 August, 1995
Equivalent citations: (1995)2MLJ613
JUDGMENT S.S. Subramani, J.
1. Two plaintiffs have jointly filed this suit for declaring that the plaintiffs alone are the sole and absolute owners of the plaint A Schedule Properties, and for a permanent injunction restraining the defendant, her agents, servants and men from in any way interfering with the plaintiff's peaceful possession and enjoyment of the A Schedule Property either by preventing the plaintiffs from collecting the rents from the tenants in the A Schedule Property or in any other manner whatsoever and for other consequential reliefs.
2. The plaint A Schedule Property is a land measuring 85 x 19 sq.ft. with buildings thereon. The same was acquired on 19.11.1948 by late Saraswathi Ammal, wife of the first plaintiff. It is alleged in the plaint that the said acquisition was really by the funds supplied by the first plaintiff (her husband). Ex.P-7 is the registration copy of the sale deed. The first plaintiff and deceased Saraswathi Ammal had no issues. It is averred that the second plaintiff was adopted by them in the year 1957. It is further averred in the plaint that there was actual giving and taking, from the second plaintiffs natural parents, and ever since the date of adoption, the second plaintiff brought up by the first plaintiff and his deceased wife, and she was also given in marriage by them, in March, 1981. For the purpose of marriage, the defendant, who is the sister of Saraswathi Ammal was also invited. But, within a few days of the marriage, i.e., on 12.4.1981, Saraswathi Ammal died of heart attack. It is alleged that immediately thereafter the defendant put forward a claim over the assets of Saraswathi Ammal as if she is the sole heir of the deceased. It is further averred that when claims and counter claims were made, a Panchayat was convened, and there was a settlement by which 14 sovereigns, 1 gram of gold were given to the defendant so that she may not claim any further right in the property. But, quite against the terms of the Panchayat, the defendant is now interfering in the plaintiff's possession and enjoyment of the properties, and it is said that their rights to collect rents are being interfered with. It is said that the defendant was residing originally with her parents, and after their death, she lived with her brother, one Sambandam, and since her behaviour was not proper, she was sent out of the house by her brother. Naturally, being the elder sister, Saraswathi Ammal gave protection to the defendant. The defendant developed illicit intimacy with one K. Ramachandran and lived with him in Kodambakkam, and through him he-has three daughters. Ramachandran became a drunkard and he was sent put of the house by the defendant with the help of one J. Stalin Mani, a powerful man in A.D.M.K. Party. He began to look after the defendant, and he also performed the marriage of the defendant's daughter Selvil. Through the political influence of Stalin Mani, the defendant is putting forward false claim over the suit property, which belonged to Saraswathi Ammal. Complaint to police was of no avail, and therefore, the suit has been filed.
3. In the written statement filed by the defendant, she said that she is a Muslim, having converted herself to Islam in February, 1981, and after her conversion to Islam, she is known as Nagamma. It is further said that the deceased Saraswathi Ammal married the first plaintiff. But they lived only for a short period, and the first plaintiff left her in the year 1959. It is said that Saraswathi Ammal also became a convert to Islam and changed her name to Fatima Bi, and she married one Sahul Hameed Saheb on 14.2.1968 in accordance with Muslim rites of law. No issues were born in that marriage. The defendant denies the adoption of the second plaintiff. She says that there was no ceremony of giving and taking. Saraswathi Ammal was living only with Sahul Hameed, and the second plaintiff used to visit them every now and then. The defendant would say that the first plaintiff left Saraswathi Ammal and was living separately in Giri Street, Ramakrishna Nagar, Kodambakkam. The marriage of the second plaintiff was not arranged either by the first plaintiff or deceased Saraswathi Ammal. It is said that in 1981, Fathima Bi was not doing well, and she was bed-ridden, and the defendant was looking after her affairs. It is said that on 20.2.1981, Saraswathi Ammal under the auspices of Moulana Moulvi S.M. Ahmed Jallaluddin (Bakari) in Indira Nagar, embraced Islam. The allegation that a betrothal took place in connection with the marriage of the second plaintiff, is also denied. According to her, since Saraswathi Ammal was a Muslim, the line of succession can only be by Mohammedan Law, and if that be so, the plaintiffs are not the legal heirs of the deceased, and the defendant alone will be the legal heir, and the suit has only to be dismissed.
4. Regarding the convening of the Panchayat, she admits that there was a panchayat, but she denies the plaintiff's allegation which prompted the convening of the panchayat. She says that she is entitled to collect the rent as she is the only legal heir of the deceased Saraswathi Ammal.
5. On the above pleadings, the following issues have been framed for trial:
(1) Whether the deceased Saraswathi Ammal was a Hindu or a Muslim at the time of death?
(2) Whether the defendant was a Muslim at the time of the death of Saraswathi Ammal?
(3) Whether the defendant is entitled to the suit property?
(4) Whether the 2nd plaintiff is the adopted daughter of the 1st plaintiff and deceased Saraswathi Ammal?
(5) Whether the plaintiffs are entitled to the declaration and injunction prayed for?
(6) Whether the plaintiffs are entitled to the plaint B Schedule movables?
(7) To what reliefs, are the parties entitled?
6. In this case, the evidence consists of the oral evidence of the second plaintiff as P.W.1. Exs.P-1 to P-15 were marked on the side of the plaintiffs. On the side of the defendant, Exs.D-1 to D-13 were marked. There was no oral evidence on the side of the defendant.
7. Issue No. 1: This issue relates to the question whether the deceased Saraswathi Ammal was a Hindu or a Muslim at the time of her death. This is a material issue in this case, because, the law of succession depends upon the religion which the deceased was professing at the time of her death.
8. Saraswathi Ammal was a Hindu by birth is not disputed. Her marriage with the first plaintiff is also not disputed. In the plaint, it is stated that their marriage took place on 11.9.1940. Her parents were also Hindus is also not a matter in dispute. The case put forward by the defendant is that from 1959, Saraswathi Ammal and her husband (first plaintiff) were living separately, and Saraswathi Ammal embraced Islam and in 1968, she married a Muslim. It is said that even in the subsequent marriage, she had no issues.
9. Once it is admitted that Saraswathi Ammal was a Hindu, the law presumes the continuity of events, and it is for the defendant to prove that Saraswathi Ammal got herself converted into Islam.
10. In 'Principles of Mohammedan Law' by Mulla-Eighteenth Edition - in Chapter 2, the learned Author says:
Any person who professes the Mohammedan religion, that is, acknowledges, (1) that there is but one God, and (2) that Mohammed is His Prophet, is a Mohammedan. Such a person may be a Mohammedan by birth or he may be a Mohammedan by conversion. It is not necessary that he should observe any particular rites or ceremonies, or be an orthodox believer in that religion; no court can test or gauge the sincerity of religious belief. It is sufficient if he profess the Mohammedan religion in the sense that he accepts the unity of God and the prophetic character of Mohammed.
11. In 'Muslim Law' by Tyabji - 4th Edition, the learned author says that a Muslim is a person who professes the faith of Islam (i.e., a belief in the unity of God and the mission of Mohammed as a Prophet or messenger of God) and to such person Muslim law will be applicable. Where a Muslim professes or is alleged to belong to, or to have been converted to, or to have elected to belong to, a particular school or community, the question will be decided with reference to the tents, ways and to the customs, of the particular school or community. The learned Author says, commenting on certain decision of this Court, thus:
In a suit for partition the issue was whether the family to which the parties belonged, consisted of Hindus or Muslims. The court held that they were neither the one nor the other........
The learned author continues to say as follows:
that to be recognised as one or the other under Section 24 of Act VI of 1871, not only must one call oneself a Hindu or Muslim, but must be an orthodox believer in, and must follow and observe that religion. That is to say, their status before the law depends absolutely on their religious belief, and this in the strict sense of the term". This proposition must (semble) refer not to the state of the mind itself, but in so far as that state is externally manifested. For, as Brain, C.J. said in 1478, "It is trite law that the thought of man is not triable, for even the devil himself does not know what the thought of man is"; and another old authority has said, "The intent of man is uncertain and a man should plead such matter as is, or may be, known to the jury." It is difficult therefore to give any force to the ephithet "orthodox" in the ruling cited. The courts will decline to pronounce any particular version of a religion the true or orthodox one. So the Privy Council held that for determining whether the marriage of an alleged convert with a Muslim is valid, the question of conversion must be decided not by an enquiry into the state of mind of the alleged convert, but by an enquiry into the conformity of her acts to an external standard, viz., to the conduct that may reasonably be expected from a person of her alleged religion. The lower court's ruling was held to be liable to exception, inasmuch as no court would test or gauge the sincerity of religious belief. In the cases of an alien in belief embracing Islam, profession, with or without conversion, is necessary and sufficient to remove the bar to marriage arising from unbelief or difference of creed.
Circumcision may be an important test whether a person considers himself, and desires to be recognised as a Muslim - but the question of his religion must be decided with reference to all the tents, beliefs, and customs of the particular school to which he professes to belong; and by testing the allegation in the light of the conduct of the alleged convert, and other circumstances.
The learned author says, commenting on decided cases that 'pretended conversion is not recognised, and the conversion must be honest and bona fide'.
12. In 'Muslim Law' by Kashi Prasad Saksena, Fourth Edition 1963, the learned Author defines a 'Muslim' thus:
Any person who professes Islam, i.e., acknowledges the unity of God and the prophethood of Mohammed is a Muslim. Thus a person may be a Muslim by birth or by conversion, i.e. by religion. His deviation in non-fundamental particulars only will not amount to apostasy. In doubtful cases, circumcision or belief and observance of ceremonial law, may be worth considering, but these are not conclusive proofs, and it is not necessary that one should be an orthodox believer in that religion; no court can test the sincerity of religious belief. The illegitimate son of a Hindu by a Muslim lady, who is brought up as a Hindu and married to a Hindu girl according to Hindu rites, may well be regarded as a Hindu. A Muslim remains so until he renounces Islam. The mere adoption of some Hindu forms of worship does not amount to such a renunciation. In order that the Muslim Law may be applied to a person, he must be an orthodox believer in the Muslim faith. The mere circumstances that he calls himself or is called by others a Muslim is not enough. His only claim to have a special kind of law applied to him is that he follows and observes a particular religion. The expression 'orthodox believer' means a sincere believer in the heart of his hearts; mere orthodoxy in the profession of Islam is sufficient as sincerity of religious belief cannot be tested....................
13. In 'Outlines of Mohammedan Law' - Third Edition (1964), the learned Author Asaf A.A. Fyzee defines 'Muslim' as follows:
If the Mohammedan Law is to be applied to Mohammadans - or strictly, Muslims - the next question that arises is: Who, for the purpose of the administration of justice, is to be considered a Muslim? The courts are entirely unconcerned with theological refinements; the law treats all religions with equality; there is no state religion in the Republic of India. We have to discover if possible some objective tests to answer this question.
A good discussion of the subject is to be found in Aghnides, where he explains that there are atleast three divergent views on the subject: (i) he who believes in Mohammed as a prophet belongs to the Muslim community; or (ii) every person who says 'there is no god but God, and Mohammed is the Prophet of God' is a Muslim; or (iii) al-Baghdadi and other theologians hold that in addition to the belief in God and the Prophet, a number of other beliefs are also necessary. xxx xxx xxx The third question that arises is: What are the tests of a true con version? When can we say that a man has either accepted Islam or rejected it? Islam depends upon belief, but it is well known that 'the thought of man is not triable'. No hard and fast rules can be laid down so far as external tests are concerned. Circumcision is one of the tests, but it is by no means final; particular forms of belief and observance of ceremonial law may also be taken into consideration, but as Lord Macnaghten said, 'No court can test or gauge the sincerity of religious belief.' In order to be treated as a Muslim, a man must profess to be a Muslim, and secondly, the conversion must not be colourable. In the leading case of Skinner v. Orde. one Helen Skinner was married in Christian form to George Skinner. Later, after the death of George Skinner, Helen Skinner cohabited with John Thomas John, a Christian married to a Christian wife who was alive. In order to legalize their union, John and Helen went through the ceremony of conversion to the Mohammedan faith, and the Privy Council held that such a marriage was of doubtful validity. Hence a pretended conversion, for the purpose of eluding the personal law of the parties, will be considered by a fraud upon the law and will not be permitted by the courts.
Thus, the importance of a formal profession remains, for on a valid and proper conversion to Islam, the Mohammedan law is applicable.
In another leading case, Abdul Razack v. Aga Mohammed, Lord Macnaghten, in emphasizing the importance of the profession of Islam, lays down, 'It was a mistake, they said. 10 talk of conversion. No court can test or gauge the sincerity of religious belief. In all cases where, according to Mohammedan Law, unbelief or difference of creed is a bar to marriage with a true believer, it is enough if the alien in religion embraces the Mohammedan faith. Profession with or without conversion is necessary and sufficient to remove the disability.' Therefore it may be said that a formal profession of Islam is sufficient, unless (i) the conversion is a pretended or colourable one, for the purpose of perpetrating a fraud upon the law, or (ii) the whole of the man's conduct and the evidence of surrounding facts is such as to run counter to the presumption of conversion to Islam.
14. In Narantdkath Avullah v. Parakkal Mammu A.I.R. 1923 Mad. 171, the question that came for consideration was, whether Ahamadiyans are Muslims, and whether the remarriage of a Muslim wife after her husband's conversion into Ahamadiyan faith, is bigamy. In the course of discussion, one of the Judges (Krishnan J.) defined 'Muslim' by approving a passage of Mr. Ameer Ali in his book on Mohammedan Law, 4th Edition, Vol. II, at Page 36, as follows:
Any person who professes the religion of Islam, in other words, accepts the unity of God and the prophetic character of Mohammed is a Moslem subject and is subject to the Musalman Law. So long as the individual pronounces the Kalma of Tauhid, the creed of Islam, it is not necessary for him or her to observe any of the rights and ceremonies or to believe in particular doctrines which imply Imam or belief.
XXXX XXXX XXXX Every person who acknowledges the Divine Unity and the messengership of the Arabian Prophet is regarded as within the pale of Islam; nothing more is required.
Their Lordships also approved the passage of Sir Abdul Rahim in his Mohammedan Jurisprudence, page 249, wherein he had stated thus:
The Islamic faith consists in acknowledging the authority of one God the Law-giver and the truth of Mohammed's mission as His Prophet.
15. In Shihabuddin Imbichi Koya Thangal v. K.P. Ahammed Koya . while dealing with a similar question, a learned Judge of the Kerala High Court (V.R. Krishna Iyer, J., as he then was), followed the earlier decision of the Madras High Court reported in Narantakath Avullah v. Parakkal Manimu, A.I.R. 1923 Mad. 171. In paragraph 13 of the judgment, the learned Judge approved the definition for 'Muslim' by Mulla (referred to supra) and held thus:
....Every religion has produced from time to time men of light and learning who have within the limits of the fundamental frame work of each religion contributed spiritually to the upgrading of the human personality. Every such endeavour cannot be dogmatised as hereby and every such movement castigated as an infidel outburst. Catholicity and liberal views are often the anathema of the orthodox but the court is concerned only with civil rights and status and the impact of religion as affecting such status. In so doing, it cannot get entangled in theological meshes but has to go by the essential test of the basis identity of a religious community organised as a Church or a Faith. The bond of union, if I may say so, consists in the identity of its doctrines, creeds, formalities and tests which are its very core and constitute its distinctive existence.......
16. Placing reliance on the above pre-conditions, we have to decide whether the deceased Saraswathi Ammal was a Muslim at the time of her death. There is no oral evidence on the side of the defendant. But certain documents have been put forward to prove that late Saraswathi Ammal got herself converted to Islam. How far those documents support the case of the defendant has to be seen. Ex.D-4 is an affidavit alleged to have been filed by the deceased before the City Civil Court, Madras in O.S. No. 3403 of 1980. It is seen that an affidavit was filed in that case wherein the deceased addressed herself thus:
I, V.R. Saraswathi alias Fathima, wife of late Sahul Hameed, widow Muslim, aged about 46 years, residing at No. 21, (Old No. 5) Kandapppa Mudali Street.........
On the basis of this statement it is said that that is a sworn affidavit by the deceased, and the same has to be accepted. On the basis of the Law declared by various Authors and also case-law, a mere statement by a person that he is a Muslim is not sufficient. The question that has to be considered is, whether he/she believed in one God and recognised Mohammed as the Prophet of God. According to me, this affidavit does not substantiate the said case and there are also other circumstances which disprove the statement contained in Ex.D-4. Similar is the case in respect of Ex.D-5. That is a company application in which the deceased was also a party. The only relevant statement is 'V.R. Saraswathi Ammal alias Fathima'. We cannot attach any importance to the said statement. In the Order passed by this Court, we find only the name of 'V.R. Saraswathi Ammal', who had mortgaged the property to the company in liquidation. The Court does not say that Saraswathi Ammal converted herself to Islam. It does not even recognise her name as Fathima. Ex.D-6 is a paper cutting wherein it is said that the photo of the deceased along with her Muslim husband was printed. We cannot accept Ex.D-6 as a proof of any marriage by the deceased with a Muslim, nor that Ex.D-6 has legally been proved. Ex.D-6, according to me, is inadmissible in evidence, and even if it is admitted without protest, the same cannot be used for any purpose. Law enjoins that a photograph has to be proved by producing the negative, and it is the photograph that is admitted in evidence. Here, Ex.D-6 is not the photograph, but a photograph taken from another photo. Further, the very appearance of Ex.D-6 seems to be suspicious. We find a kind of interpolation or mixing of two photos into one. Again, the identity of the person is not proved by any evidence in this case. This is the only evidence that has been let in by her (defendant) to prove her contention. Exs.D-1 and D-2, even though marked through P.W. 1, they have not been proved in accordance with law. P.W. 1 has pleaded ignorance about these exhibits. Inspite of the same, they were marked through her. Ex.D-3 only supports the case of the plaintiffs. It shows that Saraswathi Ammal is not a Muslim even in 1975, and the second plaintiff was also residing with her.
17. As against the same, the plaintiffs have produced the voters list for the year 1980. Ex.P-10 is the extract from the same. Serial No. 215 pertains to deceased Saraswathi Ammal as daughter of late Jeevarathinam. P.W. 1 speaks about the identity of the persons mentioned in Ex.P-10. It pertains to the occupants of the building at Door No. 21, Ganapathy Lala Lane, which is admittedly the A Schedule Property. Ex.P-11 is a Death Certificate. It is seen that she died at the Government Royapettah Hospital, and at the time of her death, her name was Saraswathi. Exs.P-14 and P-15 are the photographs taken at the time of betrothal. It is seen therefrom that a Hindu Priest was there, and it was at his auspices the betrothal ceremony took place.
18. Ex.P-8 has some importance in this case. The same is a record to show that immediately after the betrothal of the second plaintiff, it is registered with the temple authorities, namely Vadapalani Temple, that a marriage is going to take place on 24.4.1981. A registration fee of Re. 1 has been paid to the temple authorities on 23.3.1981. In the marriage application, both the first plaintiff and deceased Saraswathi Ammal have signed as parents of the second plaintiff. It is attested by the local M.L.A. also. The genuineness of this document is not questioned. Ex.P-8 has been executed by the deceased just a few days before her death. If Saraswathi Ammal had converted herself to Islam, under no circumstances she would have come to the temple to arrange for and conduct the marriage of the second plaintiff. It is also clear from Ex.P-8 that till death she was known only as Saraswathi Ammal and not as Fathima, as alleged by the defendant.
19. P.W.2 also speaks about the happenings after the death of Saraswathi Ammal. On her death, Saraswathi Ammal was cremated according to Hindu rites by the first plaintiff. Neither the defendant nor the socalled Muslim husband of Saraswathi Ammal was even present, or took any steps for her cremation or burial, according to Muslim rites. It is also well-known that if a Muslim dies, the death will be entered in the Mosque Registers, and that would have been best evidence to prove that Saraswathi Ammal died as a Muslim.
20. P.W. 1 speaks about the religion of the deceased. There is no counter evidence in this case. On the basis of documentary evidence filed before this Court, I can only conclude that Saraswathi Ammal died as a Hindu and not as a Muslim. The statement she got converted into a Muslim has not even been attempted to be proved by the defendant in this case. Therefore. Issue No. 1 is found in favour of the plaintiffs.
21. Issue No. 4: Though the suit was filed by two plaintiffs, at the time of recording of evidence, that is, during trial, the first plaintiff was dead. It is also seen that on 31.7.1986, advocate for the first plaintiff made an endorsement in the plaint like this: "Suit is not pressed against the defendant and may be dismissed, as not pressed". It is not signed by the deceased first plaintiff. But any way, there is such an endorsement by the counsel. Naturally, we have to infer that it must be under instructions from the first plaintiff. But, how far the said endorsement affects the case or the legal rights of the second plaintiff, is to be considered. The suit has been filed by both the plaintiffs, claiming themselves to be the legal heirs of deceased Saraswathi Ammal. Both of them claim reliefs as successors to deceased Saraswathi Ammal. The second plaintiff is not represented by the first plaintiff. Therefore, any statement made by the first plaintiff will not be binding on her.
22. In the plaint, it is stated that the second plaintiff was adopted by the first plaintiff and the deceased Saraswathi Ammal in the year 1957. It is also stated that there was the giving and taking, and the second plaintiff was given in adoption by her natural parents and taken by late Saraswathi Ammal in adoption. It has also been averred in the plaint that the second plaintiff was given and also taken in adoption with an intention to transfer her from the family of her birth to the family of adoption. Right from the date of adoption, the second plaintiff was living only with the first plaintiff and his wife. It is also stated that the first plaintiff and his deceased wife arranged for the marriage for the second plaintiff in March, 1981. and the deceased Saraswathi Ammal has signed the marriage application form in Vadapalani Temple.
23. We have the oral evidence of P.W.2 in this case. But she will not be in a position to speak about the factum of adoption or other ingredients of adoption as contemplated under the Hindu Adoptions and Maintenance Act.
24. Section 5 of the Hindu Adoptions and Maintenance Act says that the adoptions will be regulated by this Chapter and all adoptions must be only in accordance with this Act. Any adoption made in contravention to the provisions of this Act will be declared as invalid. Section 6 of this Act declares the requisites of a valid adoption. They are:
(i) the person adopting must have the capacity, and also the right to take in adoption; (ii) the person giving in adoption must have the capacity to do so; (iii) the person adopted must be capable of being taken in adoption: and (iv) the adoption must be made in compliance with the other conditions mentioned in this Chapter. There is no dispute between the parties regarding the requisites under Section 6 of the Act. Section 7 deals with the capacity of a male Hindu to take in adoption. It says that a male Hindu, who is of sound mind and not a minor can take in adoption a boy or a girl. It further says that if he has a wife at the time, he cannot make the adoption except with her consent, and if he has more than one wife the consent of all the wives is necessary. Section 8 contemplates the case of capacity of a female Hindu to take-in adoption. Section 9 deals with persons capable of giving in adoption. Section 10 deals with persons who may be adopted. Section 11 is the most important section, and the entire argument of the learned Counsel for the defendant was with reference to Section 11(6) of the Act.
25. Section 11(vi) of the Act reads thus:
11. Other conditions for a valid adoption: In every adoption, the following conditions must be complied with:
(i) to (v)......
(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.
The argument of the learned Counsel for the defendant was that there is no evidence in this case about the actual taking of the child in adoption. He has argued that the entire burden is on the plaintiffs to show that there was a valid adoption, and, on the basis of the evidence of P.W. 1 alone, a finding cannot be entered regarding the same. It is further argued that the law expects good evidence when natural heirs are being disinherited on the ground of adoption. I perfectly agree with the contention of the learned Counsel for the defendant. We have to see whether the case is put forward by the plaintiffs regarding adoption is probable.
26. Learned counsel for the plaintiffs wanted this Court to infer a case of adoption on the ground that the first plaintiff himself has admitted in the plaint regarding adoption and also on the basis of Ex.P-8 and other documents surrounding the same.
27. Ex.P-8 is a piece of evidence which supports the case of the plaintiffs. I have already slated that, that is an Application Form filed by both the first plaintiff and the deceased Saraswathi Ammal declaring themselves as parents of the second plaintiff. I have already stated that when Ex.P-8 was marked, its genuineness was never challenged and the signatures appearing therein were also not challenged. There is a declaration by the deceased and also the first plaintiff, who is also now dead, stating that the second plaintiff is their daughter. That was a statement made by both of them declaring that the second plaintiff is their daughter and it is made at a time when the litigation was not in contemplation. It is a relevant piece of evidence under Section 32(5) of the Evidence Act. which reads thus:
When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
Taking along with Ex.P-8, w.e have Ex.P-12 which proves the betrothal ceremony of the second plaintiff. In that, the first plaintiff has signed and declared the second plaintiff as his daughter. Ex.P-13 is the invitation for the betrothal. It is dated 20.3.1981, where also the first plaintiff declares the second plaintiff as his daughter. In the electoral roll Ex.P-10, the second plaintiff's name is found as Serial No. 216. Her father's name is mentioned as Ramakrishnan, first plaintiff in this suit. All these documents taken together will show that the second plaintiff was treated as their daughter.
28. In Banwari Lal v. Tirlok Chand and others . the question that came for consideration was, whether a statement in a Will regarding the factum of adoption is a relevant piece of evidence to be considered. Approving the decision reported in Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh A.I.R. 1927 Pat. 61. their Lordships said that a statement made by the testator in the Will about the adoption is certainly a piece of admissible evidence. Their Lordships said that though it may not be conclusive, but that was an important matter to be considered.
29. In The Vishnu Pratap Sugar Works (P) Limited v. The Chief Inspector of Stamps U.P., (1968)1 S.C.W.R. 69, also, a similar question came up for consideration. Their Lordships considered the scope of Section 32(5) of the Evidence Act, and said that, that is a reliable and relevant piece of evidence which could be taken into consideration. The only qualification that was made to invoke Section 32(5) of the Evidence Act was that the statement must be before the question in issue was raised.
30. I have already said that Exs.P-8, P-10, P-12 and P-13 are all documents before the issue was raised, and at a time when the status of the second plaintiff was of importance. When a girl is given in marriage, naturally, her parentage and the background of the family will be declared. It is in these circumstances, those statement were made. Those documents, according to me, are admissions on the part of both the first plaintiff and his deceased wife Saraswathi Ammal that the second plaintiff is their daughter and that she was treated as such.
31. Along with this piece of evidence, the admission of the defendant herself that the second plaintiff was being brought up by Saraswathi Ammal gains importance. The first plaintiff and Saraswathi Ammal had no children is also an admitted fact. Under these circumstances, if they thought of bringing up a child as their own on the basis of an adoption, the same cannot be stated as false.
32. In the plaint, there is a statement by the first plaintiff that the second plaintiff was adopted to his family and all the ceremonies contemplated under Section 11(vi) of the Hindu Adoptions and Maintenance Act had been complied with. The said statement in the plaint is a statement made after the issue in dispute was raised, and hence it may not be relevant under Section 32 of the Evidence Act. But the same is relevant under Section 11 of the Evidence Act, and it is also an admissible evidence. If the second plaintiff says that she has been adopted, it is for the defendant to prove that the adoption is invalid for any of the reasons mentioned in the Statute. She has not cared to enter the box.
33. In Umesh Bhagat v. Smt. Ram Kumari Devi and Ors. , their Lordships took the admission of the adoptive father that he is declaring himself as the parent of the child as admission of the adoption. In this case, we must understand that there was no necessity to make any false declaration. For deceased Saraswathi Ammal, her husband (first plaintiff herein) was the only legal heir, and there was no necessity for them to give any false declaration for the purpose of changing the line of succession. In civil cases, we are concerned only about the probabilities of the case and the decision has to be arrived at on the preponderance of probabilities. When a person declares that a girl is his daughter, brings her up as his daughter, declares before Authorities that she is his daughter and gives her in marriage, there is nothing wrong in assuming that they have adopted that girl as their daughter. Along with this evidence, we have the evidence of P.W.1 also. She says that she has been brought up from her childhood only by the first plaintiff and his wife, and that she was treated as their daughter. There is no evidence contra. In that view of the matter, Issue No. 4 has to be found in favour of the plaintiffs.
34. Issue Nos. 2 and 3: In this case, we are not concerned about the conversion of the defendant as Muslim. Only if Saraswathi Ammal is a Muslim, the question will arise whether the defendant is a legal heir, and whether the defendant is also a Muslim. Once it is found that Saraswathi Ammal died as a Hindu, the question as to the religion of the defendant does not arise for consideration. Saraswathi Ammal was governed by Hindu Succession Act, and she died intestate. Since I have found that the second plaintiff is her adopted daughter, she becomes the legal heir of the deceased and under Section 15 of the Hindu Succession Act, the first plaintiff also becomes Class 1 heir. In that view of the matter, the defendant is not entitled to the suit properties.
35. Issue No. 5: In view of my findings on Issue Nos. 1 and 4, I hold that the second plaintiff is entitled to a declaration that she is the sole heir of the deceased Saraswathi Ammal. It is an admitted fact that the first plaintiff died after the institution of the suit and he left only the second plaintiff as his legal heir. In that view of the matter, the second plaintiff alone becomes the absolute owner of the suit properties. Accordingly, she is entitled to a declaration.
36. The defendant comes to the scene only after 20.3.1981, i. e., few days before the death of Saraswathi Ammal. There is no evidence in this case to show that she is in possession of any of the items in A Schedule. But, from the reply notice, it is clear that she wanted to interfere with the legal rights claimed by the plaintiffs, and in fact, there was some intervention by the Panchayatdars also. So, there was some reason for the apprehension on the part of the plaintiffs that the defendant will interfere with their rights. It is also in evidence and there are also allegations in the plaint that the defendant attempted to collect rents from the tenants. In that view of the matter, the plaintiff is also entitled to get an injunction as prayed for in the suit.
37. Issue No. 6: There is no evidence regarding the movables sought to be recovered from the defendant or regarding the other movables scheduled in the plaint. Hence, in so far as B Schedule items are concerned, the suit is only to be dismissed.
38. Issue No. 7: In the result, I hold that the second plaintiff is the sole legal heir of deceased Saraswathi Ammal and the first plaintiff, and she is entitled to a declaration that the suit property belongs to her absolutely. She is also entitled to get a decree for injunction, prohibiting the defendant, her agents, servants and men from in any way interfering with her right of peaceful possession and enjoyment of the A Schedule Property and also from collecting rents from the tenants in A Schedule Property.
39. Insofar as the B Schedule Property is concerned, the suit is dismissed but without costs. Taking into consideration the contentions raised by the defendant, I feel that this is a fit case where the plaintiff should be awarded, her costs, allowing her to realise the same from the defendant and also her assets.
40. I have already declared the status of the second plaintiff as the adopted daughter of the deceased Saraswathi Ammal and the first plaintiff, and I have also declared that the defendant has no right over the plaint mentioned property. Pending suit, the deceased first plaintiff was appointed as Receiver and he continued in that capacity till he died on 18.11.1987. But thereafter none was appointed as Receiver.
41. It is represented on behalf of the plaintiffs at the time of arguments that after the death of the first plaintiff, the defendant is interfering with her possession, and moreover, it is said that the defendant is collecting rents. In view of the political influence she (defendant) has, the second plaintiff is not in a position to prevent her from committing these unlawful acts. This is countered by the learned Counsel for the defendant by saying that the defendant is in absolute possession of the A Schedule property ever since the death of her sister Saraswathi Ammal.
42. In view of the conflicting claims put forward by either parties, I am of the view that this is a fit case where a Receiver must allow to continue. This Court already appointed a Receiver in Application No. 3004 of 1981, after considering the rival claims. Since now I have passed a decree in favour of the second plaintiff, it is better that an advocate- Receiver is appointed in the place of the deceased first plaintiff. That will be for the protection of the property and also the person of the second plaintiff. Since the second plaintiff is residing away and since she says that she is not able to protect herself from the atrocities of the defendant, an advocate- Receiver is appointed. Thiru Manimaran, Advocate, High Court, Madras is appointed Receiver, who shall take possession of the A Schedule Property forthwith and report the matter before this Court on or before 11.9.1995. In the meanwhile, the second plaintiff is directed to deposit a sum of Rs. 1,000 (Rupees one thousand only) towards the initial remuneration of the Advocate- Receiver. The remuneration of the Receiver will be decided later. Call on 12.9.1995.