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2012 DIGILAW 1659 (MAD)

Kaliammal v. K. Mayilsamy

2012-03-30

R.S.RAMANATHAN

body2012
COMMON JUDGMENT 1. Defendants 3, 6 and 7 in O.S.No.53 of 2001 on the file of the III Additional Sub Judge, Coimbatore are the appellants. 2. The first respondent herein filed the suit for partition of his 4/6 share in the suit properties. The suit was decreed and the appeal filed in A.S.No.55 of 2006 filed by the defendants and the cross objection filed by the first respondent were dismissed. Aggrieved by the same, this second appeal is filed by defendants 3, 6 and 7. The first respondent also filed cross objection No.143 of 2011 against the dismissal of the cross objection filed by him in A.S.No.55 of 2011. 3. The case of the first respondent was that the suit properties were the ancestral properties of one Krishnan Chettiar and Pappammal was his wife who was the first defendant in the suit and they had a daughter by name Saraswathi and defendants 2 to 7 are the legal heirs of Saraswathi. The first defendant and the plaintiff/first respondent's mother Muthammal were sisters and the first respondent herein was taken in adoption by Krishnan Chettiar and Pappammal when the first respondent/plaintiff was three months old and he was treated as adopted son of Krishnan Chettiar and Pappammal and therefore, he is entitled to half share in the suit properties and after the death of Krishnan Chettiar, he is entitled to 1/6 share alongwith the defendants and the first defendant was entitled to 1/6 share and defendants 2 to 7 together are entitled to 1/6 share and after the death of the first defendant, he became entitled to 1/12 share and therefore, the first respondent/plaintiff is entitled to 1/2 + 1/6 + 1/12 = 9/12 share and the suit was filed for that. 4. The first defendant Pappammal filed statement disputing the claim of the first respondent/plaintiff herein as the adopted son of Krishnan Chettiar and Pappammal and denied that the plaintiff/first respondent was the adopted son and therefore, he is not entitled to any share in the properties of Krishnan Chettiar and Krishnan Chettiar, during his life time, settled his properties in favour of his daughter Saraswathi and therefore, the plaintiff/first respondent cannot claim any right over the properties and therefore, he is not entitled to the relief of partition. 5. 5. The plaintiff/first respondent examined five witnesses to prove his case of adoption and marked 41 documents as Exhibits and the appellant examined three witnesses and marked 17 Exhibits. The Trial Court, on the basis of Ex.A8, registered Will dated 24.6.1975 and various documents wherein the first respondent/plaintiff was described as son of Krishnan Chettiar and also having regard to the evidence of PW3, held that the plaintiff/first respondent proved that he was the adopted son of Krishnan Chettiar and therefore, he is entitled to claim share in the suit properties. Further, the Trial Court upheld the settlement deeds executed by Krishnan Chettiar in favour of his daughter and held that after the execution of the settlement deed in respect of those properties, the plaintiff cannot claim any share and therefore, the plaintiff/first respondent is entitled to claim only half share in the property. 6. In the first appeal in A.S.No.55 of 2006, the first respondent filed cross objection and contended that the settlement deeds, Exs.B6 and B7 were not proved and during the life time of Krishnan Chettiar, he was not in sound state of mind and therefore, Saraswathi, daughter of Krishnan Chettiar cannot claim any right over those properties and therefore, Krishnan Chettiar died intestate in respect of his half share in the property and the half share of Krishnan Chettiar devolved on the plaintiff/first respondent, his widow Pappammal viz., the first defendant and the legal heirs of his daughter Saraswathi and therefore, he is entitled to 3/4 share in the property. The lower appellate court confirmed the findings of the Trial Court holding that the first respondent/plaintiff proved that he was the adopted son of Krishnan Chettiar and Krishnan Chettiar executed settlement deed in favour of Saraswathi Ammal and therefore, the daughter of Saraswathi Ammal got half share in the properties and therefore, the plaintiff/respondent is entitled to only 1/2 share and confirmed the judgment and decree and dismissed the first appeal and cross objection. The appellants also filed I.A.No.314 of 2010 in A.S.No.55 of 2006 to receive three documents as additional evidence and that application was dismissed. Aggrieved by the same, the second appeal is filed by defendants 3, 6 and 7 and cross objections are filed by the plaintiff. 7. The first respondent/plaintiff also filed M.P.No.2 of 2011 under Order 41 Rule 27 to receive additional documents. 8. Mr. Aggrieved by the same, the second appeal is filed by defendants 3, 6 and 7 and cross objections are filed by the plaintiff. 7. The first respondent/plaintiff also filed M.P.No.2 of 2011 under Order 41 Rule 27 to receive additional documents. 8. Mr. R.T. Duraisamy, learned counsel for the appellants submitted that the courts below, without properly appreciating the law laid down by the Honourable Supreme Court and our High Court regarding the proof for adoption, erred in holding that the first respondent was the adopted son of Krishnan Chettiar. According the learned counsel for the appellant, there was no pleading regarding the ceremonies that took place at the time of adoption and how the adoption had taken place and in the absence of pleadings regarding the manner in which the adoption took place, the courts below ought not to have accepted the evidence of PW3 and ought to have held that adoption was not proved by the first respondent. He further submitted that the various entries in the Secondary School Leaving Certificate, College Certificates and other records would not prove the adoption unless the first respondent/plaintiff proved the adoption in the manner known to law and having regard to Ex.B1 and additional evidence filed in the first appeal, the court below ought to have held that the first respondent was never treated as the adopted son of Krishnan Chettiar and he was treated as the son in his natural family. He further submitted that the courts below erred in relying upon Ex.A8 the Will alleged to have been executed by the grandmother Veerammal to hold that the adoption was proved and accepted by the family. He also submitted that the present suit filed by the first respondent is also barred by the provisions of Order 9 Rule 9 of the Code of Civil Procedure and admittedly, the first respondent has filed O.S.No.1048 of 1989 against Krishnan Chettiar and Saraswathi and that suit was allowed to be dismissed for not taking steps and therefore, the suit on the very same cause of action filed by the first respondent is not maintainable. He relied upon the decisions reported in KISHORI LAL v. MT.CHALTIBAI ( AIR 1959 SC 504 ), V.RAVICHANDRAN v. R.RAMESH JAYARAM AND OTHERS (1998-3-LW 822), NILIMA MUKHERJEE v. KANTA BHUSAN GHOSH ( (2001) 6 SCC 660 ) and LALITHA v. PARAMESWARI & 4 OTHERS (2001-2-LW 403). 9. He relied upon the decisions reported in KISHORI LAL v. MT.CHALTIBAI ( AIR 1959 SC 504 ), V.RAVICHANDRAN v. R.RAMESH JAYARAM AND OTHERS (1998-3-LW 822), NILIMA MUKHERJEE v. KANTA BHUSAN GHOSH ( (2001) 6 SCC 660 ) and LALITHA v. PARAMESWARI & 4 OTHERS (2001-2-LW 403). 9. On the other hand, Mr. S. V. Jayaraman, learned Senior Counsel appearing for the first respondent submitted that it was the specific case of the first respondent that adoption took place when he was three months old and the ceremonies of adoption was spoken to by PW3, who is none other than the cousin of the first respondent/plaintiff and PW2 also gave evidence regarding the adoption and PW2 proved the Will, Ex.A8 executed by Veerammal and in that Will, Veerammal, maternal grandmother mentioned that the first respondent was the grandson through her daughter Pappammal and she bequeathed her properties to the first respondent as the grandson through Pappammal and Krishnan Chettiar and also in favour of the granddaughter Saraswathi and it was admitted by the appellants that the properties mentioned in the Will were divided by Saraswathi and the first respondent and that would prove that adoption was accepted by the family members. He further submitted that having regard to the lapse of time, one cannot expect a party to lead evidence regarding the manner in which adoption had taken place and having regard to the evidence of PW3 and the various Exhibits filed by the first respondent wherein the first respondent was described as the son of Krishnan Chettiar, the courts below have rightly held that the adoption was proved by the first respondent and he relied upon the judgment in L.DEBI PRASAD v. SMT.TRIBENI DEVI AND OTHERS ( 1970(1) SCC 677 ) in support of his contention. 10. 10. The learned Senior Counsel further submitted that admittedly the properties are the ancestral properties in the hands of Krishnan Chettiar and that was proved by Ex.A1 and A2 the decree passed in O.S.No.64 of 1949 and the earlier partition deed between Krishnan Chettiar and his brothers dated 3.10.1992 and therefore the properties are the ancestral properties and when the first respondent/plaintiff was adopted, he became the co-parcener alongwith the father and therefore, he became entitled to half share and admittedly, Krishnan Chettiar was entitled to half share and he could not have executed Exs.B6 and B7 in respect of the entire estate in favour of his daughter Saraswathi and those settlement deeds are not valid and in that case, Krishnan Chettiar was deemed to have died intestate and his half share devolved upon the first respondent, his adoptive mother Pappammal and the legal heir of Saraswathi and each of them is entitled to 1/6 share and after the death of Pappammal, her 1/6 share devolved upon the first respondent and the legal heirs of Saraswathi Ammal and therefore, the first respondent became entitled to 3/4 share and that was not properly appreciated and the courts below erred in holding that Exs.B6 and B7 were validly executed and therefore, the plaintiff/first respondent cannot claim any share in the properties of Krishnan Chettiar's half share and therefore, the first respondent is entitled to 3/6 share and not 3/4 share. The learned Senior Counsel also submitted that the additional documents filed by the first respondent may also be considered in evidence as those documents also would prove that the first respondent was treated as adopted son of Krishnan Chettiar and described as adopted son of Krishnan Chettiar in various documents. The learned Senior Counsel further submitted that the suit is not barred under Order 9 Rule 9 and relied upon the judgment in BALAMANI v. S.BALASUDARAM ( (2009) 4 MLJ 218 ) and the judgment in DILO RANA v. KUNJ BEHARI PRASAD (AIR (35) 1948 PATNA 244). 11. On the basis of the submissions made by the learned counsel for both the parties, the following substantial questions of law arise for consideration:- "1. Whether the courts below were right in holding that the first respondent proved that he was validly adopted by Krishnan Chettiar in the absence of any pleading and proof about the same and also having regard to ex.B1. 2. Whether the courts below were right in holding that the first respondent proved that he was validly adopted by Krishnan Chettiar in the absence of any pleading and proof about the same and also having regard to ex.B1. 2. Whether the suit filed by he first respondent is barred under Order 9 Rule 9 of the Code of Civil Procedure." 12. It is the specific case of the first respondent that when he was three months old, he was given in adoption by his natural parents to Krishnan Chettiar and Pappammal and thereafter, he was living with Krishnan Chettiar and Pappammal. His education was taken care of by his adoptive father and in his Secondary School Leaving Certificate, Krishnan Chettiar signed as his father and the other documents viz., Exs.A9 to A35 various educational certificates, community certificate, driving licence, patta would all prove that he was described as the son of Krishnan Chettiar and therefore, he is entitled to claim share in the properties of Krishnan Chettiar. The relationship between the parties is admitted. Pappammal wife of Krishnan Chettiar and the natural mother of the first respondent viz., Muthammal were sisters. Their brother was Palani Chettiar and his son is PW3. As per the Secondary School Leaving Certificate, Ex.A3, the first respondent was born on 11.6.1954 and in that, he was described as the son of Krishnan Chettiar and Krishnan Chettiar singed as his parent. It is the crucial document to be considered and according to me, the other Exhibits viz., Exs.A9 to A35 are all on the basis of the entries in Ex.A3 Secondary School Leaving Certificate and those documents will not prove the factum of adoption unless the first respondent is able to prove that Ex.A3 will prove adoption and adoption can be infered through Ex.A3. In other words, except Ex.A3, all other documents were based on the entries in Ex.A3 and only in Ex.A3, Krishnan Chettiar signed as father of the first respondent and therefore, we will have to see whether the plaintiff/first respondent proved the adoption by producing Ex.A3. 13. To appreciate that, we shall see the law laid down by the Honourable Supreme Court and our High Court regarding the proof of adoption. 13. To appreciate that, we shall see the law laid down by the Honourable Supreme Court and our High Court regarding the proof of adoption. In the judgment reported in AIR 1959 SC 504 , it has been held as follows:- "As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth. ... The performance of funeral rites will not sustain an adoption unless it clearly appears that the adoption itself was performed under circumstances as would render it perfectly valid. For the performance of these rites frequently varies according to the circumstances of each case and the view and the usage of different families. The evidence given in the case may show that in the absence of the son, junior relations like a younger brother or a younger nephew performs the obsequial ceremonies. ... So also, the performance of the marriage of the son alleged to have been taken in adoption itself does not prove adoption, which is otherwise disproved. As a circumstance supporting the inference of adoption set up by such a son it is wholly neutral." 14. In the decision reported in 1970(1) SCC 677 ) "It is true, as observed by this Court in Addagada Raghayamma and anr. v. Addagada Chenchamma and anr. ( (1964) 2 SCR 933 ) that it is well settled that a person, who seeks to displace the natural succession to property by alleging an adoption, must discharge the burden that lies upon him by proof of the factum of adoption and its validity. Again as held by this Court in Lakshman Singh Kothari v. Smt. Rup Kanwar ( (1962) 1 SCR 477 ) that in order that an adoption may be valid under the Hindu law, there must be a formal ceremony of giving and taking. This is true of the regenerate castes as well as of the Sudras. Although no particular form is prescribed for the ceremony, the law requires that the natural parent should hand over the adoptive boy and the adoptive parent must receive him, the nature of the ceremony varying according to the circumstances. This is true of the regenerate castes as well as of the Sudras. Although no particular form is prescribed for the ceremony, the law requires that the natural parent should hand over the adoptive boy and the adoptive parent must receive him, the nature of the ceremony varying according to the circumstances. In the course of the judgment Subba Rao J. (as he then was), who spoke for the Court, quoted with approval the following observations of Gopalchandra Sarkar in his book on Hindu Law, 8th Edn.; "The ceremonies of giving and taking are absolutely necessary in all cases. These ceremonies must be accompanied by the actual delivery of the child; symbolical or constructive delivery by the mere parol expression of intention on the part of the giver and the taker without the presence of the boy is not sufficient. Nor are deeds of gift and acceptance executed and registered in anticipation of the intended adoption nor acknowledgment, sufficient by themselves to constitute legal adoption, in the absence of actual gift and acceptance accompanied by actual delivery; a formal ceremony being essential for that purpose." 8. That is also the view expressed in Mayne's Hindu Law wherein it is observed that the giving and receiving are absolutely necessary to the validity of an adoption; they are the operative part of the ceremony, being that part of it which transfers the boy from one family to another; but the Hindu law does not require that there shall be any particular form so far as giving and acceptance are concerned; for a valid, adoption all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, and that the boy shall be handed over and taken for this purpose." 15. In the same judgment, the Honourable Supreme Court held as follows:- "9. There is no doubt that the burden of proving satisfactorily that he was given by his natural father and received by Gopal Das as his adoptive son is on Shyam Behari Lal. In the same judgment, the Honourable Supreme Court held as follows:- "9. There is no doubt that the burden of proving satisfactorily that he was given by his natural father and received by Gopal Das as his adoptive son is on Shyam Behari Lal. But as observed by the Judicial Committee of the Privy Council in Rajendrao Nath Holder v. Jogendro Nath Banerjee and ors.(14, Moor's Indian Appeals p.67); that although the person who pleads that he had been adopted is bound to prove his title as adopted son, as a fact yet from the long period during which he had been received as an adopted son, every allowance for the absence of evidence to prove such fact was to be favourably entertained, and that the case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerable time, and afterwards impeached by a party, who had a right to question the legitimacy, where the defendant, in order to defend his status, is allowed to invoke against the claimant every presumption which arises from long recognition of his legitimacy by members of his family; that in the case of a Hindu, long recognition as an adopted son, raised even a stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family. In Rup Narain and anr. v. Mst. Gopal Devi and ors. (36 IA 103), the Judicial Committee observed, that in the absence of direct evidence much value has to be attached to the fact that the alleged adopted son had without controversy succeeded to his adoptive father's estate and enjoyed till his death and that documents during his life and after his death were framed upon the basis of the adoption. A Division Bench of the Orissa High Court in Balinki Padhano and anr. v. Gopalkrishna Padhano and ors(AIR 1964 ORISSA 117); held that in the case of an ancient adoption evidence showing that the boy was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming. We are in agreement with the views expressed in the decisions referred to above. 10. We are in agreement with the views expressed in the decisions referred to above. 10. In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well." 16. In the judgment in RAHASA PANDIANI v. GOKULANANDA PANDA ( AIR 1987 SC 962 ), it was held as follows:- "In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a Will, there have been spurious claims about adoption having taken place. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a Will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach." 17. In the judgment reported in 2001-2-LW 403, a Division Bench of our court has held as follows:- "The mere fact that in the invitation card, printed for the puberty function, celebration of the marriage of the plaintiff and the school certificate, in which, the name of Kuppusamy Naicker finds a place, as the father of the plaintiff, would not establish that the plaintiff was adopted by Kuppusamy Naicker ..." 18. In the judgment reported in 1998-3-LW 822, a Division Bench of this court has held as follows:- "22. As held by the Apex court, the oral evidence of the witnesses deposing about the ceremony of adoption shall be trustworthy and there should be details of the events in ceremony ending with the usual feast following it. In the ceremony it is very much essential that the natural parent shall give the child in adoption and the adoptive parent shall declare in the presence of the relatives and friends, who attended the ceremony that they accepted the child in adoption. As stated earlier, the object of their declaration in the midst of members of both the families is to secure due publicity. If no such ceremony is performed, then the intention of the parties cannot be gathered. 23. Moreover, when there is no registered document pertaining to adoption under Section 16 of the Act, then the court has to be very cautious and extremely alert to guard the persons against being ensnared by the unscrupulous persons who indulge in grabbing the properties. If no such ceremony is performed, then the intention of the parties cannot be gathered. 23. Moreover, when there is no registered document pertaining to adoption under Section 16 of the Act, then the court has to be very cautious and extremely alert to guard the persons against being ensnared by the unscrupulous persons who indulge in grabbing the properties. Further, as held by the Apex Court, the plaintiff has to show a heavy duty to prove the ceremony of adoption, in the absence of any registered document to explain to the satisfaction of the conscience of the court regarding such an adoption by producing accounts to show that there were expenses incurred due to the ceremony of adoption and by examining the Priest who performed the ceremony. 24. In the instant case, there is no registered document nor details of the ceremony mentioned in the plaint. Even in the Court, PW1 would not give any details of the declaration of the giving and taking of her son in adoption. Besides this, the accounts showing the expenditure for the ceremony were not produced and the Priest who was said to have performed the ceremony was not examined." 19. In the judgment in M.RAMACHANDRAN v. M.M.CHANDRASEKAR ( 2010 (3) MLJ 830 , a Division Bench relied upon the decision in Raghavamma v. Chenchamma ( AIR 1964 SC 136 ) wherein it has been held that "It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. ... Though there is no legal prohibition, it is well known that ordinarily an only son is neither given nor taken in adoption. ... Unless there were compelling and extraordinary circumstances which necessitated dispensing with all formalities, it is unthinkable that in a village there could have been an adoption made in such an affluent family without pomp and show" 20. In the same decision, the Division Bench of this court has referred to the decision in Pentakota Satyanarayana Vs. Pentakota Seetharatnam) (2005 (5) CTC 207) as under:- "The importance of the proof of adoption is spelt out in 2005 (5) CTC 207(Pentakota Satyanarayana Vs. In the same decision, the Division Bench of this court has referred to the decision in Pentakota Satyanarayana Vs. Pentakota Seetharatnam) (2005 (5) CTC 207) as under:- "The importance of the proof of adoption is spelt out in 2005 (5) CTC 207(Pentakota Satyanarayana Vs. Pentakota Seetharatnam) where the Supreme Court has referred to the heavy onus that lies on the person who sets up a case of adoption to prove the factum of adoption and since the person seeks to exclude the natural line of succession to property by alleging adoption. Therefore, the duty of the Court while considering the question whether an adoption is genuine or not appears to be akin to that which is cast upon a Court while dealing with Wills. The Supreme Court observed that just as a propounder of a Will is obliged to dispel the cloud of suspicion, there is a burden on the person who claims to have been adopted to dispel the cloud of suspicion. The factum of adoption must be established to the satisfaction of the conscience of the Court by the party contending that there was such an adoption." 21. Therefore, on the basis of the principles laid down by the Honourable Supreme Court and our High Court, we will have to see whether the first respondent plaintiff has proved adoption. As stated supra, both the courts relied upon the evidence of PW3 who spoke about the adoption and the ceremonies attached with adoption. Ex.A8 is the Will executed by Veerammal the maternal grandmother and Ex.A3 is the Secondary School Leaving Certificate to hold that the first respondent was the adopted son of Krishnan Chettiar. As per Ex.A3, the first respondent was born on 11.6.1954 and according to me, he was given in adoption when he was three months old and therefore, the adoption must have taken place in or about September or October 1954 and at that time, Hindu Adoption and Maintenance Act, 1956 was not enacted and therefore, we are governed by the old Hindu Law. As per the old Hindu Law, these are the valid requirements for adoption(vide Mulla "Principles of Hindu Law" 17th Edn.):- "448. Requirements of a valid Adoption No adoption is valid unless: (1) The person adopting is lawfully capable of taking in adoption. (2) The person giving in adoption is lawfully capable of giving in adoption. As per the old Hindu Law, these are the valid requirements for adoption(vide Mulla "Principles of Hindu Law" 17th Edn.):- "448. Requirements of a valid Adoption No adoption is valid unless: (1) The person adopting is lawfully capable of taking in adoption. (2) The person giving in adoption is lawfully capable of giving in adoption. (3) The person adopted is lawfully capable of being taken in adoption. (4) The adoption is completed by an actual giving and taking; and (5) The ceremony called datta homam (oblation to fire) has been performed. It is however, doubtful, whether the datta homam ceremony is essential in all cases for the validity of adoption." 22. In the above section, it has been held that performance of datta homam is not one of the essential ingredients to prove adoption and the adoption must be proved by adducing evidence that there was giving and taking by natural parents and adoptive parents and both of them are capable of giving the child and taking the child in adoption. As stated supra, the plaint is silent about the ceremonies conducted at the time of adoption and even the basic requirement that the natural parents of the first respondent gave the first respondent in adoption to the adoptive father viz., Krishnan Chettiar and Pappammal and that was also accepted by Krishnan Chettiar and Pappammal were also not pleaded. The allegation in para 4 only says that Krishnan Chettiar adopted him and he took all the care and with respect to life and education towards the plaintiff as his son and he was given in adoption to late Krishnan Chettiar and the first defendant when he was three months old. Therefore, there was no pleading regarding giving and taking which is one of the essential requirements to prove adoption. 23. Further prior to the filing of the suit the plaintiff issued a notice Ex.A5 dated 3.11.1989 and even in that notice, it was not stated that the plaintiff was given in adoption and accepted by the adoptive parents. The plaint as well as notice proceeded on the basis that the plaintiff was the adopted son and the Secondary School Leaving Certificate and other educational records would prove that the plaintiff was the adoptive son of Krishnan Chettiar and therefore, the adoption has been proved. The plaint as well as notice proceeded on the basis that the plaintiff was the adopted son and the Secondary School Leaving Certificate and other educational records would prove that the plaintiff was the adoptive son of Krishnan Chettiar and therefore, the adoption has been proved. PW3 was examined to prove the adoption and admittedly, he is the cousin of PW1 the plaintiff. PW3, is the son of Palani Chettiar who was the brother of Muthammal and Pappammal. Muthammal was the natural mother and Pappammal was the adoptive mother of the plaintiff. It is further admitted by PW3 that at the time of adoption, except himself and the maternal grandmother Veerammal, no relatives were present. He further deposed that the adoption took place in the Kuladeivam temple Kamatchiamman and he also spoke about the ceremonies that were observed at the time of adoption and according to his evidence, the first respondent/plaintiff was taken by the natural mother Muthammal and gave it to priest and the first respondent was placed at the feet of the deity and thereafter, the first respondent was given to the natural parents and after reciting some mantras, the natural parents gave the first respondent to the adoptive parents informing that they were giving their son in adoption and it was conducted in the presence of maternal grandmother and himself and except them, no relatives were present. Though PW3 has spoken about the ceremonies that took place at the time of adoption, no proof was adduced that in the community to which the parties belong, such ceremonies were performed during adoption and those ceremonies were done or performed by the two families. In this case, the judgment of the Honourable Supreme Court referred to above would be relevant. 24. As held by the Honourable Supreme Court in AIR 1987 SC 962 , the adoption must be proved to the satisfaction and conscience of the court by the party contending that there was such an adoption and the above ceremonies had taken place in the presence of relatives to make it public that a person has been taken in adoption. In this case, even according to PW3, except the maternal grandmother Veerammal and himself, nobody attended the adoption. The other circumstances relied upon by the courts below and by the learned Senior Counsel for the first respondent is the Will Ex.A8 executed by Veerammal, the maternal grandmother. In this case, even according to PW3, except the maternal grandmother Veerammal and himself, nobody attended the adoption. The other circumstances relied upon by the courts below and by the learned Senior Counsel for the first respondent is the Will Ex.A8 executed by Veerammal, the maternal grandmother. It is seen from Ex.A4, the xerox copy of the Will dated 24.6.1975 that the words were inserted in the Will and originally when the Will was written, the properties given to Pappammal would go to her daughter and thereafter, the words were inserted in the documents and as rightly pointed out by the learned Senior Counsel that the insertion was done even prior to the execution and it is evident from the certified copy of the Will marked as Ex.A8. Therefore, it was held by the courts below that in the Will, Veerammal accepted that the first respondent was the son of Pappammal and therefore, it has been proved that Pappammal was the adoptive mother and the first respondent was the adoptive son. 25. To disprove this, the appellants filed a document viz., registered partition deed dated 16.3.1987 as additional evidence in the first appeal and that the document was rejected by the lower appellate court without assigning any proper reason. According to me, when the additional evidence was adduced in the first appeal or the second appeal and proper reasons were stated by the parties for not adducing such evidence before trial, and when those documents are necessary to arrive at a just conclusion, the court is bound to receive the additional evidence. The document dated 16.3.1987 which was filed as additional evidence is a partition deed among the children of Veerammal maternal grandmother, mother of Muthammal and Pappammal. The partition deed was between Palani Chettiar, PW3 Nanju Chettiar, the son of Palani Chettiar and Muthammal, her son Arumugam, Krishnasamy Chettiar and Pappamal and Saraswathi and others. In the said document, while describing the first respondent, it is stated that he is the son of Muthammal wife of Subi Chettiar and foster son of Krishnan Chettiar and Pappammal. The specific words are. This partition was effected in respect of the properties left by Muthammal as per the Will Ex.A8. In the said document, while describing the first respondent, it is stated that he is the son of Muthammal wife of Subi Chettiar and foster son of Krishnan Chettiar and Pappammal. The specific words are. This partition was effected in respect of the properties left by Muthammal as per the Will Ex.A8. Therefore, even though in Ex.A8, it was stated that the first respondent was the son of Pappammal, when Veerammal's properties were divided, the first respondent and his mother asserted that he is the son of Subi Chettiar and Muthammal and foster son of Krishnan Chettiar and not the adopted son of Krishnan Chettiar. This document ought to have been considered by the lower appellate court and ought to have been received in evidence which would prove that the first respondent was not the adoptive son of Krishnan Chettiar. 26. Further, Ex.B1 is the partition among the father and sons of Subi Chettiar. Admittedly, the first respondent was the natural son of Subi Chettiar and according to the case of the first respondent, he was given in adoption in the year 1954. Therefore, under the old Hindu Law, when a person was given in adoption, he severed all his connection with his natural family and he became a co-parcener in the adoptive family and he cannot claim any share in the properties belonging to his natural family. Therefore, after the alleged adoption, the first respondent cannot claim any share in his natural family. But, Ex.B1, the partition deed would clearly show that he was given the properties in the natural family and in that document, he is described as the son of Subi Chettiar and not as adopted son of Krishnan Chettiar. Ex.B1 document is dated 7.7.1985 and it is a partition deed and the parties are Subi Chettiar, his sons, Kuppusamy, Palanisamy, Arumugam, Krishnansamy, Mayilsamy and Rajendran. It is further stated that all of them are belonging to a Hindu co-parcenery property and they are enjoying the property in common and as difference arose between them, they agreed to divide the properties as stated in the partition deed. It is further stated that all of them are belonging to a Hindu co-parcenery property and they are enjoying the property in common and as difference arose between them, they agreed to divide the properties as stated in the partition deed. If really the first respondent was given in adoption, he cannot claim any right in the properties of his natural father and Ex.B1 was marked during the cross examination of PW1, the first respondent and no explanation was given by the first respondent about the recitals in Ex.B1 wherein he is described as the son of Subi Chettiar and he has not given any explanation how he got a share in the properties belonging to his natural family when he was given in adoption to Krishnan Chettiar. 27. Further, admittedly, Krishnan Chettiar and Pappammal had a daughter by name Saraswathi. It was stated that as they had no male issues, they wanted to adopt the first respondent as their adopted son. In the year 1954, Krishnan Chettiar and Pappammal were not old enough and there was no reason to suspect in the year 1954 that they would not beget any male issues. No evidence was adduced to that effect. Therefore, when Krishnan Chettiar and Pappammal had a daughter and they were young enough to beget another child, there was no reason for Krishnan Chettiar to adopt the first respondent as his adopted son. As held by the Honourable Supreme Court, the factum of adoption must be proved beyond suspicion as it destroys the line of succession and in this case, having regard to Ex.B1 and the additional document viz., partition deed dated 16.3.1987 between the parties, and having regard to the absence of pleadings regarding ceremonies of adoption, in my opinion, the first respondent has not discharged the burden that he was voluntarily given in adoption to Krishnan Chettiar and Pappammal. 28. Though in Ex.A3, the Secondary School Leaving Certificate, it is stated that Krishnan Chettiar is the father of the first respondent and Krishnan Chettiar signed as father, the same will not prove the adoption and that can be used as a corroborative evidence when adoption has been proved by the first respondent to the satisfaction of the court. 28. Though in Ex.A3, the Secondary School Leaving Certificate, it is stated that Krishnan Chettiar is the father of the first respondent and Krishnan Chettiar signed as father, the same will not prove the adoption and that can be used as a corroborative evidence when adoption has been proved by the first respondent to the satisfaction of the court. Similarly, the other Exhibits filed viz., Exs.A9 to A35 would also not prove adoption as all those documents were based on the entries in Ex.A3 and in those documents, Krishnan Chettiar was not a party and the entries therein were made on the basis of the information given in Ex.A3 and based on those documents, one cannot presume that the first respondent was the adoptive son of Krishnan Chettiar. 29. Further, the conduct of the parties would also play a role in deciding whether the first respondent was given in adoption. In the year 1987, Krishnan Chettiar executed the settlement deeds in favour of his daughter Saraswathi and in those settlement deeds, he stated clearly that she was his only daughter and he had no other issues. No explanation has been given by the first respondent why Krishnan Chettiar executed settlement deeds in favour of his daughter stating that she was the only child born to him and it has not been stated that there was misunderstanding between him and Krishnan Chettiar and therefore, those documents were executed by Krishnan Chettiar. No reason was stated by the first respondent for the execution of the documents by Krishnan Chettiar in favour of his daughter. In the year 1989, the first respondent filed the suit in O.S.No.1048 of 1989 under Ex.A7 and in that suit, Krishnan Chettiar and Saraswathi were the defendants and that suit was allowed to be dismissed for default and the first respondent kept quiet for nearly 12 years and filed the present suit only in 2001. In the year 1989, the first respondent filed the suit in O.S.No.1048 of 1989 under Ex.A7 and in that suit, Krishnan Chettiar and Saraswathi were the defendants and that suit was allowed to be dismissed for default and the first respondent kept quiet for nearly 12 years and filed the present suit only in 2001. No explanation had been given by the first respondent for not filing the suit immediately after the filing of the suit in O.S.No.1048 of 1989 and only reason that can be gathered from the conduct of the first respondent was that he waited for the death of Krishnan Chettiar and Pappammal and accordingly after the death of Pappammal, he filed the present suit and therefore, he waited for their death so that those persons cannot come and give evidence against him and therefore, he did not file the suit immediately after the dismissal of the suit filed by him in O.S.No.1048 of 1989. 30. Further, the other competent witnesses to speak about the adoption are his natural parents and natural brothers and none of them were examined and though his natural mother died before the filing of the suit, there was no evidence that natural father also died and yet, his natural brothers are alive and none of them were examined to prove the adoption. Admittedly, the first respondent was the eighth child in the family and therefore, his elder brothers and sisters would be the proper persons to speak about the adoption and none of them were examined. PW3, who was examined to speak about the adoption, is the cousin of the first respondent and he also admitted in evidence that his cousin was given in marriage to the first respondent and therefore, he has more interest in the first respondent than the children of Saraswathi who were the appellants herein and therefore, the evidence of PW3 can be termed only as an interested witness and in the absence of any other witness, and in the absence of pleading, the courts below ought not to have held that the first respondent has proved the adoption. 31. 31. According to me, having regard to the principles laid down by the Honourable Supreme Court in the judgments referred to above, the entries in the records would not prove the adoption and the fact that the last rites of Krishnan Chettiar and Pappammal were performed by the first respondent would also not prove the adoption and adoption has to be proved independent of those documents and even though a party cannot be expected to produce proof regarding adoption due to the lapse of time, some acceptable evidence has to be produced before the court to prove the adoption. 32. Further, as per the judgment reported in (2002) 3 SCC 364 = AIR 2002 SC 1428 , the presumption of adoption can be rebutted when the adoptive son is described as son of his natural father and in this case, as stated supra, under Ex.B1 and in the additional document filed in the first appeal, partition deed, the first respondent is described as son of Subi Chettiar, his natural father and therefore, having regard to those two documents, the presumption is rebutted. 33. Further, as held by the Honourable Supreme Court in the decision reported in 1990 (2) MLJ 360 , the proof of adoption must be free from suspicion and in this case admittedly, Saraswathi was alive when the alleged adoption had taken place and it is not as if Krishnan Chettiar and Pappammal had no issues and even according to the admitted case that Krishnan Chettiar and Pappammal had not crossed the age of begetting any child and therefore, the first respondent has not cleared the suspicion that he was given in adoption and hence, the first substantial question of law is answered in favour of the appellant and I hold that the first respondent failed to prove that he was the adoptive son of Krishnan Chettiar. 34. Admittedly, the first respondent filed O.S.No.1048 of 1989 for partition on the very same pleading and the basis of his claim for partition in that suit was that he was the adopted son of Krishnan Chettiar. That suit was allowed to be dismissed and on the same pleading, the present suit is filed. Therefore, it is contended by the learned counsel for the appellants that the suit is barred under Order 9 Rule 9 of the Code of Civil Procedure. 35. That suit was allowed to be dismissed and on the same pleading, the present suit is filed. Therefore, it is contended by the learned counsel for the appellants that the suit is barred under Order 9 Rule 9 of the Code of Civil Procedure. 35. Order 9 Rule 9 deals with appearance of parties and consequence of non appearance and as per Order 9 Rule 4, when a suit is dismissed under Rule 2 or 3, viz., when steps were not taken to serve summons on the defendant or when the parties did not appear in the case when called for hearing and the suit was dismissed consequent to that, the plaintiff may bring a fresh suit or apply for an order to set aside the dismissal order. Similarly, order 9 Rule 5 also permits the plaintiff to file fresh suit subject to law of limitation when the suit is dismissed when the plaintiff fails to take steps for three months. Therefore, in respect of contingencies provided under Order 9 Rules 3 and 5, even though the suit is dismissed, the plaintiff is entitled to bring a fresh suit subject to law of limitation. But, insofar as Order 9 Rule 9 is concerned, no such liberty is given to the plaintiff and it has been specifically stated that where the suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit. The provision under Order 9 Rule 8 says that where the defendant appears and the plaintiff does not appear when the suit is called for hearing, the court shall make an order that the suit be dismissed. Therefore, when the suit is dismissed under Order 9 Rule 8, the plaintiff shall be precluded from bringing a suit with the very same cause of action and he has got sufficient right the set aside the dismissal by satisfying the court. 36. In this case, the plaintiff/first respondent filed O.S.No.1048 of 1989 for partition stating that he was the adopted son of Krishnan Chettiar and therefore, he was entitled to half share of the property and that suit was allowed to be dismissed for default. According to the plaintiff/first respondent, he did not take steps to implead the legal representatives of Krishnan Chettiar and Saraswathi and therefore, that suit was dismissed. According to the plaintiff/first respondent, he did not take steps to implead the legal representatives of Krishnan Chettiar and Saraswathi and therefore, that suit was dismissed. The plaintiff has not filed the order of dismissal and even according to the explanation given by the first respondent, dismissal of the suit in O.S.No.1048 of 1989 was not due to the reasons stated in Order 9 Rule 2, 3 and 5 and therefore, the earlier suit in O.S.No.1048 of 1989 was dismissed under Order 9 Rule 8 and therefore, under order 9 Rule 9, a fresh suit on the same cause of action is barred. 37. The learned Senior Counsel Mr. S. V. Jayaramn relied upon the judgment of this court in THAYYAN v. KANNIKANDATH (AIR 1935 MADRAS 458), BALAMANI AND ANOTHER v. S.BALASUDARAM ( (2009) 4 MLJ 218 ) and DILO RANA v. KUNJ BEHARI PRASAD (AIR (35) 1948 PATNA 244) and submitted that Order 9 Rule 9 will not apply to a case of partition and in a suit for partition, the cause of action is a continuing one and therefore, the bar under Order 9 Rule 9 will not apply to the partition suit. 38. I am unable to accept the contention of the learned Senior Counsel for the appellant having regard to the facts of the case. In the judgments cited by the learned Senior Counsel, this court has held that Order 9 Rule 9 will not apply to a suit for partition on the ground that in the partition suit, the cause of action is a continuing one. Though O.S.No.1048 of 1989 was a suit for partition and the present suit is also one for partition, there is a basic difference between these two suits and the other suits for partition referred to in those judgments. In O.S.No.1048 of 1989 and the present suit, the cause of action for the suit was on the basis that he was the adoptive son of Krishnan Chettiar and therefore, he is entitled to half share in the properties. 39. As per Order 9 Rule 9, when a suit is disposed as per Order 9 Rule 8, the plaintiff is precluded from filing a fresh suit on the very same cause of action. 39. As per Order 9 Rule 9, when a suit is disposed as per Order 9 Rule 8, the plaintiff is precluded from filing a fresh suit on the very same cause of action. Therefore, the cause of action in O.S.No.1048 of 1989 and the present suit is one and the same viz., the plaintiff is the adopted son of Krishnan Chettiar and therefore, the bar under Order 9 Rule 9 will come into play as O.S.No.1048 of 1989 was dismissed as per Order 9 Rule 8. The cause of action expressed in the judgment relied upon by the learned Senior Counsel was that suit for partition was among the members who are entitled to a share in the properties by reason of their birth in the same family and there was no dispute regarding the right to claim partition and the dispute was with regard to the shares to which the parties are entitled to. In that context only it was held in those judgments that in a partition suit, the cause of action is a continuing one. The present suit cannot be considered as a partition suit and the present suit and the earlier suit were filed only on the basis that the plaintiff is the adoptive son of Krishnan Chettiar and the cause of action is the factum of adoption and therefore, the prohibition under Order 9 Rule 9 will come into operation though the present suit is for partition I hold that the present suit is barred under Order 9 Rule 9 of the Code of Civil Procedure. The second substantial question of law is answered in favour of the appellant. I, therefore, hold that the courts below, without appreciating the judgments of the Honourable Supreme Court and without referring to the Ex.B1, erroneously held that the plaintiff has proved that he was the adoptive son of Krishnan Chettiar and the lower appellate court erred in dismissing the application for additional evidence and ought to have received the additional evidence as Exhibits. 40. 40. Therefore, as per Ex.A1 and the partition deed which was filed as additional evidence, it was proved that the plaintiff/first respondent was described as the son of Subi Chettiar and not the adopted son of Krishnan Chettiar and the partition deed dated 16.3.1987 which was filed as additional evidence is directed to be marked as Ex.B18 and Ex.B18 partition deed would also prove that the recitals in Ex.A8 Will cannot be construed as true and that will not confer title on the first plaintiff that he was the adopted son of Krishnan Chettiar. 41. The first respondent filed M.P.No.2 of 2011 to receive additional evidence and the documents filed as additional documents are the application filed by the first respondent for getting B.C. Scholarship, community certificate issued in his favour, sale deeds executed in his favour wherein he was described as son of Krishnan Chettiar, the power of attorney given by his natural brother wherein also he was described as the son of Krishnan Chettiar and the passport, income tax certificate and registered mortgage deed. 42. Those documents were of the year 1977 to 1999 and as stated supra, those documents will not prove the adoption merely because in the documents, the first respondent was described as adoptive son of Krishnan Chettiar. Therefore, those documents will not help the court to arrive at a just decision and hence, M.P.No.2 of 2011 is rejected. 43. The first respondent also filed Cross Objection No.143 of 2011 to claim 3/4 share of the properties that was based on the footing that he was the adopted son of Krishnan Chettiar and Krishnan Chettiar did not execute Exs.B6 and B7 while he was in a sound and disposing state of mind. Both the courts concurrently held that Exs.B6 and B7 were executed by Krishnan Chettiar when he was in a sound and disposing state of mind. Further, having regard to the findings given in respect of the first substantial question of law that the first respondent was not the adopted son of Krishnan Chettiar, he cannot claim any share in the properties of Krishnan Chettiar. Cross Objection No.143 of 2011 is dismissed. In the result, the second appeal is allowed. The cross objection is dismissed. The suit is dismissed. No costs. M.P.No.1 of 2011 is closed.