THATHAKUTTY v. KITTAMUTHU — 1982 DIGILAW 272 (KER)

Judgment :- 1. Kunjappu and That were man and wife governed by the Hindu Mitakshara Law of inheritance. As they had no issue, Kunjappu adopted the first defendant Kittamuthu to be his son when he was just three years old To fulfil his desire to have a daughter, be later on adopted the plaintiff Thathakutty, whom her father pw. 2 Chinnappu was pleased to give him in adoption, when she was thirteen. Kunjappu and Thatha are no more. The plaintiff filed O S. No. 102 of 1975 on the file of the Subordinate Judge of Palghat for partition of the plaint schedule properties into two equal shares, and to have one such share allotted to her. The trial court having, by its judgment dated 11-11-1976. dismissed the suit, the plaintiff has preferred this appeal, 2. The plaint schedule properties belonged to Kunjappu. That the 1st defendant is the adopted son of Kunjappu is beyond dispute. If the plaintiff is an adopted daughter of Kunjappu, as contended by her, undoubtedly she would be entitled to one-halt of the plaint schedule properties as one of the two legal heirs of deceased Kunjappu. The first defendant, however, contended both the factum and validity of the adoption set up by the plaintiff. Defendants 2 to 4 (respondents 2 to 4), who claimed equities in the event of partition, also supported the 1st defendant. 3. The plaintiff's case is that she was adopted by Kunjappu in the year 1957. It has been the endeavour of the Ist defendant to establish that Kunjappu had died in or before 195S, and as such the adoption in the year 1957, as stated by the plaintiff, could not have taken place. For the sake of argument we would assume, without deciding, that the plaintiff was treated as a daughter by Kunjappu as spoken to by pw1 (the plaintiff) and pw. 2 Chinnappu, particularly in the light of the fact that as dw.1 the 1st defendant himself bad in his oral evidence admitted the fact of adoption in a qualified sense, by saying that she was adopted, though not by Kunjappu. by Thatha. 2 Chinnappu, particularly in the light of the fact that as dw.1 the 1st defendant himself bad in his oral evidence admitted the fact of adoption in a qualified sense, by saying that she was adopted, though not by Kunjappu. by Thatha. Even then, we are of the opinion that in the eye of law the purported adoption is invalid and non est in view of the fact that it did not take place in compliance with the provisions of S 11(ii) of the Hindu Adoptions and Maintenance Act (Act LXXVIII of 1956) (for short 'the Adoption Act') for. as evidenced by Ext. B-10 extract from the School Admission Register, the 1st defendant bad a daughter by name Pankajam, born on 2-12-1952, living on 21-5-1958, rendering the purported adoption of the plaintiff in the year 1957 by the 1st defendant's adoptive father Kunjappu null and void. After the commencement of the Adoption Act, no adoption made in contravention of the provisions of that Act would be valid, as S.5 lays down: "No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of this provision shall be void"; and S.6 provides, inter alia, that no adoption shall be valid unless the person adopting has the capacity, and also the right, to take in adoption. S.11(ii) mandates: 11. In every adoption, the following conditions must be complied with: (i) (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;" Ext B-10 establishes that Kittamuthu. C., the 1st defendant, had a daughter by name Pankajam. born on 2-12-1952, and admitted to the Sree Krishna School, Nalleppilly, on 21-5-1958. The alleged adoption in 1957 of the plaintiff Thathakutty by Kunjappu. at a time when the child Pankajam born to bis son, the 1st defendant Kittamuthu, was alive, was opposed to the provisions of the Adoption Act; and was therefore void, conferring no right at all on the adopted daughter (the plaintiff). 4. Based on the recitals in Exts. The alleged adoption in 1957 of the plaintiff Thathakutty by Kunjappu. at a time when the child Pankajam born to bis son, the 1st defendant Kittamuthu, was alive, was opposed to the provisions of the Adoption Act; and was therefore void, conferring no right at all on the adopted daughter (the plaintiff). 4. Based on the recitals in Exts. A-3 and A-4 the appellant-plaintiff had put forward a case that the Ist defendant was estopped from questioning the validity of the adoption of the plaintiff by Kunjappu. The argument was that in Ext. A-3 partition deed dated 21-3-1970 entered into among the plaintiff, the 1st defendant and Kunjappu's widow Thatha, and in Ext. A-4 gift deed dated 18-3-1973, executed by the plaintiff in favour of the 1st defendant, the plaintiff was described as the adopted daughter of Kunjappu, and as such the 1st defendant who had accepted the partition and the gift evidenced by the two documents, was estopped from taking the stand that the plaintiff was not the adopted daughter and, therefore, one of the legal heirs of deceased Kunjappu. It was strongly urged that her position having been changed to her disadvantage by reason of the adoption, the person who adopted her or anybody claiming right to bis estate, could not disown the obligations arising out of such adoption after the passage of certain number of years. In support of this contention reliance was placed on the decision of the Privy Council in Dharam Kunwar v. Balwant Singh (ILR. 34 Allahabad 398) and that of the Madras High Court in Parasuramayya v. Venkataramayya (AIR. 1927 Madras 777) and Veera Raghava Reddi v. Kamalamma (63 Law Weekly 952). The doctrine of estoppel laid down and the observations made in the first two decisions mentioned above would not, however, advance the case of the appellant-plaintiff here, inasmuch as they were all cases which arose before the commencement of the Adoption Act. As for the last of the decisions cited, it could not be said that it supports absolutely the plea of estoppel raised by the appellant-plaintiff. As for the last of the decisions cited, it could not be said that it supports absolutely the plea of estoppel raised by the appellant-plaintiff. It has been observed by Viswanatha Sastri J. in that decision as follows:- "With reference to admissions made by one of the parties to a suit, as in this case, the party making the admission is at liberty to prove that such admissions were mistaken or were untrue and is not estopped or concluded by them unless another person has been induced by them to alter his condition." Adoption among Hindus is now governed by the Adoption Act Any adoption which does not comply with the conditions laid down in S.11 of the Adoption Act would be invalid, particularly so in view of the further fact that S.5(1) of the Act lays down that "no adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of this provision shall be void". It is further provided by clause (i) of S.6 of the Act that no adoption shall be valid unless the person adopting has the capacity, and also the right, to take in adoption. By reason of the provisions contained in subsection (ii) of S.11 of the Act, the adoptive father is not competent to adopt a daughter if a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) was living at the time of adoption It is, therefore, perfectly clear that in the light of the evidence provided by Ext.B-10 which speaks about the 1st defendant having had a daughter by name Pankajam living in the year 1957, in which year the plaintiff is stated to have been adopted by Kunjappu, he had not the right to take the plaintiff in adoption. There could be no estoppel against a statute. It is settled law that the doctrine of estoppel could not be applied against an act of legislature. The principle of estoppel could not be invoked to evade the plain provisions of a statute; nor could the court enforce an alleged right based on the doctrine of estoppel opposed to the provisions of a statute. It is settled law that the doctrine of estoppel could not be applied against an act of legislature. The principle of estoppel could not be invoked to evade the plain provisions of a statute; nor could the court enforce an alleged right based on the doctrine of estoppel opposed to the provisions of a statute. Moreover, estoppel under S.115 of the Indian Evidence Act, which merely is a rule of evidence based on equitable principles, would come into play only when it has been shown that by the declaration or representation of one person the other was induced to act to his prejudice. The principle on which the law of estoppel rests is that it would be most inequitable and unjust to allow a person to repudiate the fact of his former admission to cause loss and injury to the person who acted on it. It is for the plaintiff to establish that there bad been a change in her position and she bad suffered or would suffer damage or injury if a plea of estoppel is not upheld. In this case it has not been shown that there was misrepresentation by Kunjappu and that by acting on his representation, the plaintiff has suffered damage or injury. To safeguard the interests of persons who were purported to have been adopted, but whose adoption was ultimately found to be invalid, the Parliament has made the provisions contained in S.5(2) of the Adoption Act which reads as follows: "(2) An adoption which is void shall neither create any rights in the adoptive family in favour Of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth." This position, therefore, is that the plaintiff would revert to her original position in the family from which she is stated to have been adopted. We are, therefore, satisfied that there is absolutely no merit in the plea of estoppel raised by the counsel for the appellant. 5. It was then contended by Sri P. N. K. Achan, the counsel for the appellant-plaintiff, that the Ist defendant had no right to question the validity of the adoption in respect of the plaintiff which took place in the year 1957 in a suit which was filed in the year 1975. 5. It was then contended by Sri P. N. K. Achan, the counsel for the appellant-plaintiff, that the Ist defendant had no right to question the validity of the adoption in respect of the plaintiff which took place in the year 1957 in a suit which was filed in the year 1975. We do not think this contention purported to be based on Art.57 of the Limitation Act, 1963, is correct. Art.57 provides: Table:#1 The contention of the counsel is that at least from the date of Ext. A-3, viz , 21-3-1970, if not earlier, the 1st defendant should be presumed to have been aware of the adoption of the plaintiff as a daughter by Kunjappu and, therefore, he was precluded from questioning the validity of the adoption unless he bad brought a suit within three years from the date of Ext. A 3 for a declaration that the adoption was not valid. For one thing, this is not a case brought by the 1st defendant for a declaration that the adoption in respect of the plaintiff was invalid or that it never took place. It is for the plaintiff to allege and prove the factum and validity of the adoption; and if she fails to do that she has only to be nonsuited. That the purported adoption was ab initio invalid, being opposed to the statute, could always be put forward by the 1st defendant as a defence in an action based on the purported adoption. There could be no doubt, on the facts proved, that the purported adoption in respect of the plaintiff was null and void, it being opposed to the provisions of the Adoption Act; and therefore that adoption does not either confer on her any right with respect to the family to which she was purported to have been adopted or deprive her of any right which she was having in her natural family. Therefore, the plaintiff is not entitled to succeed on the plea based on Art.57 of the Limitation Act also. 6. Lastly, Sri Achan made a fervent appeal to remand the matter to the trial court on the plea that the plaintiff was really taken by surprise by the turn of events at the last moment. Therefore, the plaintiff is not entitled to succeed on the plea based on Art.57 of the Limitation Act also. 6. Lastly, Sri Achan made a fervent appeal to remand the matter to the trial court on the plea that the plaintiff was really taken by surprise by the turn of events at the last moment. dw.I was examined in court, and it was thereafter, on 8-10-1976, the additional written statement in which the new contention relating to the bar under S.11 of the Adoption Act was raised; and the suit itself was disposed of on 11-11-1976; the plaintiff had no opportunity to make up her mind in regard to the specific defence to be put forward, and the evidence to be adduced in support of the possible plea that could be raised. We find that on 28-10-76 the plaintiff had filed the replication to meet the contentions raised in the additional written statement filed by the 1st defendant. Further, there is nothing on record to show that any request for adjournment of the case for letting in any further evidence, either oral or documentary, was made by the plaintiff. There is no indication as to how the plaintiff would get over the bar created by S.11 of the Adoption Act. We are, therefore, not convinced that any useful purpose could be served even from the point of view of the plaintiff, if a remand is ordered. The result, therefore, is that the appeal fails and is dismissed, however, in the circumstances of the case, without any order as to costs.