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2000 DIGILAW 80 (MAD)

Rabi v. Jasu Leela

2000-01-20

K.G.BALAKRISHNAN, K.GOVINDARAJAN

body2000
Judgment :- K.G. BALAKRISHNAN C.J. 1. The defendant in O.S. No. 5803 of 1983 on the file of the City Civil Court, Madras is the appellant. The first respondent herein filed the original suit alleging that she is the sister of one Mrs. Bellarmin Moses alias Thangam who was the wife of the deceased M.K. Moses who died on 21.8.1979. The plaintiffs sister, Mrs. Bellarmin Moses, i.e., the widow of M.K. Moses also died on 18.1.1982. The deceased M.K. Moses was in possession of the plaint schedule property with the building therein. The appellant alleged that on the death of M.K. Moses, the property devolved on his widow Mrs., Bellarmin Moses and after her death, the plaintiff being the only legal heir, the property devolved on her. The plaintiff further alleged that the appellant/defendant was one of the tenants in the said property and was occupying a portion of the building. The plaintiff alleged that after the death of Mrs. Bellarmin Moses, the defendant claimed that he was the adopted son of the deceased M.K. Moses and Mrs. Ballarmin Moses and thus he inherited the plaint scheduled property a portion of which was in his occupation. The plaintiff filed the suit for a declaration to the effect that she is the legal heir of the deceased Mrs. Bellarmin Moses and that she was entitled to get possession of the plaint schedule property. The appellant/defendant filed a written statement denying the allegations in the plaint. The appellant specifically contended that he had been living with Mrs. Bellarmin Moses and as her son was doing of the duties of a son and he had never been a tenant in the house. The appellant contended that as he lived with the deceased as an adopted son, on the death of Mrs. Bellarmin Moses, he inherited the property. 2. The trial Court framed the issues as to whether the plaintiff was the legal heir of the deceased Mrs. Bellarmin Moses, whether the defendant is the adopted son of the deceased Mrs. Bellarmin Moses and whether the defendant was a tenant of the property. The trial Court held that the plaintiff was not the legal heir of the deceased Mrs. Bellarmin Moses and that the defendant being the adopted son of the deceased, he inherited the property and the plaintiffs suit was dismissed. Aggrieved by the same,. Bellarmin Moses and whether the defendant was a tenant of the property. The trial Court held that the plaintiff was not the legal heir of the deceased Mrs. Bellarmin Moses and that the defendant being the adopted son of the deceased, he inherited the property and the plaintiffs suit was dismissed. Aggrieved by the same,. the plaintiff filed A.S. No. 419 of 1987 and the learned single Judge held that the plaintiff being the sister of the deceased Mrs. Bellarmin Moses, she is the only legal heir of the deceased and even if the defendant is an adopted son, he will not inherit the property of the deceased Mrs. Ballarmin Moses. This finding of the learned single Judge is challenged before us. 3. We heard the appellants counsel. The counsel for the appellant contended that even though the parties are Christian, they belonged to Nadar community and in that community, it is the prevalent custom that the parents would adopt a child as their son and the adopted son is entitled to inherit the property of the parents and according to the appellants counsel, in the instant case, M.K. Moses and Mrs. Bellarmin Moses adopted the appellant and treated him as their natural son and therefore, he is entitled to inherit the property left by the deceased Mrs. Bellarmin. The appellant also relied on an affidavit (marked as Ex.B. 4) alleged to have been filed by Mrs. Bellarmin while the appellant was seeking an employment on compassionate ground on the death of the deceased M.K. Moses. 4. At the outset, we must note that there is no specific plea in the written statement that in the community to which M.K. Moses and Mrs. Bellarmin belonged, there was a custom of adoption. The only plea is that the appellant was treated as their son by M.K. Moses and his wife Mrs. Bellarmin. When there is no basis in the pleading, the plea now advanced before us cannot be accepted. Such a plea was not raised by the appellant before the lower court. 5. The next contention urged by the appellants counsel is that the appellant being an adopted son, is entitled to inherit the property of the deceased Mrs. Bellarmin. Bellarmin. When there is no basis in the pleading, the plea now advanced before us cannot be accepted. Such a plea was not raised by the appellant before the lower court. 5. The next contention urged by the appellants counsel is that the appellant being an adopted son, is entitled to inherit the property of the deceased Mrs. Bellarmin. It was argued that even though there is no personal law of adoption for Christians, following the observation made by the Supreme Court in Lakshmi Kant v. Union of India ( AIR 1984 S.C. 469 ), a Christian can adopt a child and the adopted son can inherit the property. That is a case where the Supreme Court laid down certain guidelines in the matter of inter-country, adoptions. A reference was also made to the Adoption of Children Bill 1980, but Parliament has not passed any Act on this subject. The entire guidelines included in the decision are in respect of inter-country adoptions. It was stated in page 480 regarding the status of the child, that it is essential that in inter-country adoption child is given the same legal status and rights of inheritance, as if the child had been born to the adoptive parents in marriage. But as long as there is no personal law governing the situation, it can only be held that the appellant has no right to inherit the property of the deceased Mrs. Ballarmin Moses, even if it is assumed that he is the adopted son of Mr. M.K. Moses. 6. The counsel relied also on a decision reported in Anthonyswmy v. M.R. Chinaswamy (A.I.R. 1970 S.C. 223). That is a case where a question arose whether the son of the Vanniya Tamil Christians of Chittur Taluk, Kerala who was governed by the Mitakshara School of Hindu Law was found by the doctrine of pious obligation. M.K. Moses. 6. The counsel relied also on a decision reported in Anthonyswmy v. M.R. Chinaswamy (A.I.R. 1970 S.C. 223). That is a case where a question arose whether the son of the Vanniya Tamil Christians of Chittur Taluk, Kerala who was governed by the Mitakshara School of Hindu Law was found by the doctrine of pious obligation. It was held that the doctrine of pious obligation is not merely a religious doctrine but it has passed into the realm of law and the doctrine is a necessary and logical corollary to the doctrine of the right of the son by birth to a share of the ancestral property and both these conceptions are correlated and the liability imposed on the son to pay the debt of his father is not a gratuitous obligation thrust on him by Hindu Law but is a salutary counterbalance to the principle that the son from the moment of his birth acquires along with his father an interest in joint family property and therefore it was held that though the Vannia Tamil Christians of the Chittur Taluk are governed as a matter of custom by the Mitakshara School of Hindu Law, the doctrine of pious obligation is applicable. The said decision is of no assistance to the appellant. 7. Under Section 32 of the Indian Succession Act, the property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules thereinafter contained in the chapter. As per Section 47 where the intestate has left neither lineal descendant nor father nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him. Here the parties are Christians. Under Hindu Law, an adopted son is entitled to inherit the ancestrial property. Such adoptions are governed by either customary law or by the provision contained in the Hindu Adoptions and Maintenance Act, 1956. Under Hindu Succession Act, an adopted son is treated as natural son for the purpose of succession of ancestral property whereas under Indian Succession Act, an adopted son is not treated on par with natural son and he will not inherit the property of the parents by interestate succession. Under Hindu Succession Act, an adopted son is treated as natural son for the purpose of succession of ancestral property whereas under Indian Succession Act, an adopted son is not treated on par with natural son and he will not inherit the property of the parents by interestate succession. It is not seriously contended that the plaintiff is not the sister of the deceased Mrs. Bellarmin Moses. Though at the time of the argument, the counsel for the defendant contended that there is no proof to show that the plaintiff is the sister of the deceased Mrs. Bellarmin Moses, it was not specifically denied by the appellant in his written statement. It may be noted that the plaintiff gave evidence to the effect that she is the sister of Mrs. Bellarmin Moses and produced a certificate issued by the Village Administrative Officer (marked as Ex.A.7) to the effect that she is the daughter of one Rajendra Nadar and that the said Rajendra Nadar has only two daughters, viz., the plaintiff and the deceased Mrs. Bellarmin and the appellant had only made a vague suggestion to the witness that she was not the sister of Mrs. Bellarmin Moses, but no serious contention was raised nor any evidence was let in. 8. Lastly, the appellant contended that the plaintiff has not proved title over this property and the deceased M.K. Moses and his wife never had any title to the property. No such plea was raised in the written statement and the specific plea raised was that he was the adopted son of M.K. Moses and Mrs. Bellarmin Moses arid therefore, he inherited the said property left by them. The plaintiff in his plaint has made a specific averment to the effect that the property belonged to the deceased M.K. Moses and it was devolved on his wife and after her death, the plaintiff inherited the property. In the absence of any plea or evidence to the contra, the learned single Judge was perfectly justified in accepting the contention of the plaintiff. The plaintiff being the only sister of Mrs. Bellarmin Moses, she is the legal heir to inherit the property as per Section 47 of the Indian Succession Act and even if the defendant is the adopted son of the deceased M.K. Moses and Mrs. Bellarmin Moses, he cannot inherit the property left by them. The plaintiff being the only sister of Mrs. Bellarmin Moses, she is the legal heir to inherit the property as per Section 47 of the Indian Succession Act and even if the defendant is the adopted son of the deceased M.K. Moses and Mrs. Bellarmin Moses, he cannot inherit the property left by them. We do not find any reason to interfere with finding of the learned single Judge. Appeal is dismissed. Consequently, C.M.P. No. 354 of 2000 is dismissed.