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2015 DIGILAW 1225 (MAD)

Doraisani (deceased) v. J. Murali

2015-03-02

S.NAGAMUTHU

body2015
JUDGMENT:- 1. There are four Second Appeals. Since they all arise out of a single suit, they have been heard together and they are disposed of by means of this Common Judgment. 2. The suit in O.S.No.5424/1996 on the file of the learned XII Assistant Judge, City Civil Court, Chennai was originally filed as C.S.No.1504/1988 before this Court. On account of reallotment of pecuniary jurisdiction, the matter was transmitted from the High Court to the City Civil Court and accordingly, it was renumbered as O.S.No.5424/1996. The said suit was filed by Mr. J.Murali, one of the respondents in these appeals for partition and allotment of 4/6th share in the suit properties. There are four items of immovable properties comprised in ''A'' schedule and there are number of items, which are movable properties, comprised in ''B'' schedule. 3. According to the case of the plaintiff, the item Nos.1 and 2 in ''A'' schedule were purchased and owned by one Mr. T.K. Jayaraman and his mother Mrs. Kannamma (the 2nd defendant in the suit, who died during the pendency of the suit). Mr. T.K. Jayaraman died on 04.07.1981. The 1st defendant in the suit Mrs. Doraisani is the wife of Mr. T.K. Jayaraman. Mr. T.K. Jayaraman and Mrs. Doraisani had no issues. According to the plaintiff, he was adopted by Mr. T.K. Jayaraman as his adopted son in the year 1967, when he was hardly 9 months old. His date of birth is 19.04.1966. After the said adoption, according to the plaintiff, he was brought up as the adopted son of Mr. T.K.Jayaraman and he was also educated by him. In the school records and other public records, he has been shown as the adopted son of Mr. T.K. Jayaraman. Mr. T.K. Jayaraman died intestate. Therefore, according to him, on his demise on 04.07.1981, he is entitled for 4/6th share in all the suit properties. The suit items 3 and 4 in ''A'' Schedule were owned by the 2nd defendant/ Mrs. Kannamma. In that property also, according to the plaintiff, he is entitled for 4/6th share. That is how he laid the suit for partition. 4. In the suit, there are as many as 6 defendants. The 1st defendant was Mrs. Doraisani, W/o. Mr. T.K. Jayaraman. The 2nd defendant was the mother of Mr. T.K. Jayaraman, namely, Mrs. Kannamma, who died during the pendency of the suit. That is how he laid the suit for partition. 4. In the suit, there are as many as 6 defendants. The 1st defendant was Mrs. Doraisani, W/o. Mr. T.K. Jayaraman. The 2nd defendant was the mother of Mr. T.K. Jayaraman, namely, Mrs. Kannamma, who died during the pendency of the suit. The plaintiff was recorded as the sole legal representative of Kannamma on her demise. The 3rd defendant is an Employees Union known as ''M/s. Ambattur Industrial Estate Employees Union''. It has purchased suit item 2 of ''A'' Schedule property on 30.01.1983 from the 1st and 2nd defendants, who in turn, have sold item No.2 of ''A'' Schedule property to the 3rd defendant. The defendants 4 and 5 are the tenants under Mrs. Duraisani Ammal in respect of item No.1 of the ''A'' Schedule property. The 6th defendant Mr. D.Rajendran purchased item No.1 of ''A'' Schedule property from the defendants 1 and 2 in the year 1983. 5. Mrs. Doraisani, W/o. Mr. T.K.Jayaraman, filed a written statement disputing the very adoption of the plaintiff by Mr. T.K.Jayaraman. She also admitted the sale made by her along with the 2nd defendant in respect of item No.2 of ''A'' Schedule to the 3rd defendant and item No.1 of ''A'' Schedule to the 6th defendant. She submitted that the plaintiff has no right whatsoever to claim any partition. She also disputed the movable properties. The 3rd defendant remained ex-parte. The 6th defendant filed a written statement reiterating the purchase of item No.1 of ''A'' Schedule from the 1st defendant. 6. Having Considered the above pleadings, the trial court framed appropriate issues. On the side of the plaintiff, he was examined as PW1 and one Jayarama Naidu was examined as PW2. As many as 6 documents were exhibited on his side. On the side of the defendant, Mrs. Doraisani was examined as DW1 and the 6th defendant was examined as DW2. As many as 5 documents were exhibited on their side. Having considered all the above, the trial court decreed the suit in part, thereby granting decree for partition in respect of ''A'' Schedule property alone and allotting half share to the plaintiff. So far as the claim for partition of ''B'' Schedule, namely, the immovable properties are concerned, the trial court dismissed the suit. 7. Challenging the said Decree and Judgment granting partition in respect of ''A'' schedule properties, Mrs. So far as the claim for partition of ''B'' Schedule, namely, the immovable properties are concerned, the trial court dismissed the suit. 7. Challenging the said Decree and Judgment granting partition in respect of ''A'' schedule properties, Mrs. Duraisani filed an appeal in A.S.No.49/2004 before the learned Additional District Judge, Fast Track Court No.V, Chennai. During the pendency of the same, Mrs. Duraisani died. One Mr. D.Raghu, claiming himself to have acquired the estate of the deceased Mr. Durasani by means of a registered Will, got himself brought on record as the legal representative of Mrs. Duraisani, as per the order of the lower appellate court in CMP.34/08, dated 26.06.2009. Thus, Mr. D.Raghu prosecuted the said appeal in A.S.49/2004. The plaintiff and all the other defendants in the suit are all respondents in the said appeal. 8. During the pendency of the appeal, the respondents 8 to 11 in A.S.49/2004 had purchased the different portions of the item No.2 of ''A'' Schedule under various sale deeds. Therefore in the appeal, the respondents 8 to 11 were impleaded as parties as per the Order of this Court in CRP.(PD).Nos.699 to 702 of 2006. Thus, there were 11 respondents in A.S.No.49/2004. The respondents 8 to 11 contested the appeal stating that they were bonafide purchasers for value and therefore, their title to the property should not be disturbed as the vendor had purchased item No.2 of ''A'' schedule property long prior to the filing of the suit. 9. The plaintiff, Mr. J.Murali filed Cross Objection challenging the denial of 4/6th share by the trial court and also the denial of partition of the movable properties, namely, ''B'' Schedule properties. 10. The lower appellant court heard A.S.49/2004 and the Cross Objection together and finally by decree and judgment dated 18.12.2009 dismissed the A.S.49/2004 and also dismissed the Cross Objection in A.S.49/2004. Challenging the decree and judgment of the lower appellant court in A.S.49/04, the 8th respondent Mr. S.S.Mohanraj @ Mohan in the first appeal has come up with S.A.No.79/2015. The 9th respondent/Mr. K.Duraibabu before the lower appellant court has came up with S.A.No.30/2015. Mrs. Geetha, the 10th respondent and Mr. S.Gajendran, the 11th respondent before the lower appellant court have come up with S.A.No.29/2015. Mr. D.Raghu, the 2nd appellant, who was brought on record as legal representative of Mr. Duraisani in A.S.49/2004 has come up with S.A.No.419/2012. The 9th respondent/Mr. K.Duraibabu before the lower appellant court has came up with S.A.No.30/2015. Mrs. Geetha, the 10th respondent and Mr. S.Gajendran, the 11th respondent before the lower appellant court have come up with S.A.No.29/2015. Mr. D.Raghu, the 2nd appellant, who was brought on record as legal representative of Mr. Duraisani in A.S.49/2004 has come up with S.A.No.419/2012. All these appeals have come up before this Court together for hearing. 11. In these appeals, the following substantial questions of law have arisen for consideration: 1. Whether there was any valid adoption of the plaintiff by Mr. T.K.Jayaraman as his adopted son as per the Hindu Adoptions and Maintenance Act 1956? 2. Whether the courts below were right in treating the Ex.A2, Ex.A3 and Ex.A4 as conclusive proof to prove the adoption? 3. Whether suit items 1 and 2 in ''A'' schedule which were sold away long before the filing of the suit were available for the plaintiff to have partition of the same? 4. Whether the suit for partition filed by the plaintiff on 25.02.1988 is barred by limitation as he attained majority on 19.04.1984 itself? 5. Whether the sale of the 2nd item in ''A'' schedule made by defendants 1 and 2 will bind the plaintiff? 6. Whether the sale made by the 1st defendant in the year 1983 will bind the plaintiff? 12. The learned counsel on either side have argued the matter at length, trying to drive home their points both in support of the above substantial questions of law and against. I have considered all their contentions and I have also perused the records carefully. 13. At the outset, I should say that there was no relief seeking declaration was sought for that there was valid adoption of the plaintiff as the adopted son of Mr. T.K.Jayaraman. The courts below have gone into the said issue as an incidental issue and have held that the plaintiff is the adopted son of Mr. T.K.Jayaraman. Duraisani had disputed the status of the plaintiff. According to her, there was no such adoption at all of the plaintiff by Mr. T.K.Jayaraman. Thus, the question is as to whether there was any legal adoption as required under the Hindu Adoptions and Maintenance Act 1956. T.K.Jayaraman. Duraisani had disputed the status of the plaintiff. According to her, there was no such adoption at all of the plaintiff by Mr. T.K.Jayaraman. Thus, the question is as to whether there was any legal adoption as required under the Hindu Adoptions and Maintenance Act 1956. Section 11(vi) of the Act states that one of the conditions for the adoption is that there should be compliance with the following: “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. Provided that the performance of datta homam shall not be essential to the validity of an adoption.'' 14. A perusal of the above provision would go to clearly show that it is not essential that there has to be a datta homam performed to make an adoption valid. In other words, even in the absence of performance of the datta homam, the adoption given is valid. But, fundamentally, there should have been adoption. One of the conditions which must be complied with is that there should be actual giving and taking of the child in adoption by the parents to the other. For this, there has to be first of all pleading followed by proof. In this case, a perusal of the plaint would go to show that except making a vague statement that when he was 9 months old, the plaintiff was adopted by Mr. T.K.Jayaraman, there is no evidence to show that the natural parents of the plaintiff gave him in adoption to Mr. T.K.Jayaraman. Whether such giving was with an intention to make him as an adopted son is also the matter to be pleaded and proved. For that also, there is no pleading. 15. Let us now have a quick look into the law on the subject as has been settled by the Hon'ble Supreme Court and by this Court. T.K.Jayaraman. Whether such giving was with an intention to make him as an adopted son is also the matter to be pleaded and proved. For that also, there is no pleading. 15. Let us now have a quick look into the law on the subject as has been settled by the Hon'ble Supreme Court and by this Court. In Raghavamma vs.Chenchamma reported in AIR 1964 SC 136 , it has been held as follows: “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.” In Pentakota Satyanarayanan vs. Pentakota Seetharatnam reported in 2005 (5) CTC 207, the Court has held as follows: “The onus is heavy on the person who set 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 Hon'ble 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.” 16. In the instant case, the only argument advanced by the learned counsel for the plaintiff is that the documents, namely, Ex.A2 to Ex.A4 would go to prove the factum of adoption. I find it very difficult to accept the said argument of the learned counsel for the plaintiff for more than one reason. First of all, as I have already pointed out, there is no pleading as to when, where, in whose presence, by whom and with what intention, such child was given in adoption. Apart from that, Mrs. Duraisani, W/o. Mr. T.K.Jayaraman has also disputed the said adoption by filing a written statement and she has also given oral evidence to that effect. Ex.A2 is the Transfer Certificate of the plaintiff, which of course, carries the name of Mr. Apart from that, Mrs. Duraisani, W/o. Mr. T.K.Jayaraman has also disputed the said adoption by filing a written statement and she has also given oral evidence to that effect. Ex.A2 is the Transfer Certificate of the plaintiff, which of course, carries the name of Mr. T.K.Jayaraman as the father of the plaintiff. In my considered view that will not go to conclusively prove that there was valid adoption. It can only be treated as a piece of evidence to prove adoption. Ex.A3 is an affidavit dated 03.09.1984 given by Mrs. Duraisani Ammal. This was given to enable the plaintiff to get employment on compassionate ground on the demise of Mr. T.K.Jayaraman in Railways. In that affidavit, Mrs. Duraisani has stated that the plaintiff is the adopted son of Mr. T.K.Jayaraman. But, Mrs. Duraisani has stated that this affidavit was obtained by the plaintiff for the purpose of employment, for which there is no proof. Ex.A4 is the appointment order given by the Railways to the plaintiff on compassionate ground based on the above said affidavit. 17. In my considered opinion, neither the Transfer Certificate nor the affidavit would go to conclusively prove that there was valid adoption (vide judgment of this Court in Kaliammal and Others vs. K.Mayilsamy and Others in S.A.No.956 of 2011 dated 30.3.2012). I only state that the adoption is a matter to be pleaded and proved which the plaintiff has failed to do so in the case on hand. The courts below, as I have already stated, have also pointed out that this is not a suit where the declaration is sought for that the plaintiff is the adopted son of Mr. T.K.Jayaraman, is an incidental question to decide. Whether he is entitled for partition or not is also an issue to be gone into. If that is done, I find that the courts below have erred in holding that the plaintiff is the legally adopted son of Mr. T.K.Jayaraman simply by relying on Ex.A2 to Ex.A4 as though these documents would amount to conclusive proof of the adoption. This conclusion treating these documents as conclusive proof, arrived at by the courts below is illegal and therefore, I answer the first question of law framed in this case against the plaintiff and I hold that there is no proof that the plaintiff is the legally adopted son of Mr. T.K.Jayaraman. 18. This conclusion treating these documents as conclusive proof, arrived at by the courts below is illegal and therefore, I answer the first question of law framed in this case against the plaintiff and I hold that there is no proof that the plaintiff is the legally adopted son of Mr. T.K.Jayaraman. 18. Nextly, assuming that the plaintiff is the legally adopted son of Mr. T.K.Jayaraman, the question is as to whether he is entitled for partition in the suit properties. So far as item No.2 in the ''A'' schedule is concerned, it was jointly purchased many decades before by Mrs. Kannamma/the 2nd defendant and Mr. T.K.Jayaraman. This is an admitted fact. Mrs. Kannamma and Duraisani were the legal heirs on the demise of Mr. T.K.Jayaraman in the year 1981. Therefore, they have sold away item No.2 in ''A'' schedule to the 3rd defendant. So far as item No.1 is concerned, the 1st defendant had sold the same to the 6th defendant in the year 1983 itself. Thus, in the year 1988, when the suit was filed on 25.02.1988, these properties were not at the hands of the family of Mrs. Duraisani. Thus, these properties were not at all available for partition in the year 1988. The contention of the learned Counsel for the appellants is that the sale made by Mrs. Duraisani as well as Mrs. Kannamma, the 2nd defendant would not bind the share of the plaintiff. For two reasons, this argument deserves to be rejected. 19. The first one is that as I have already held that there is no proof that the plaintiff is the adopted son of Mr. T.K.Jayaraman. Secondly, assuming that he is the adopted son, according to Ex.A2, his date of birth is 19.04.1966 and he attained majority on 19.04.1984. Within 3 years of his attaining majority, he would have filed the suit i.e., on or before 19.04.1987. But, the suit was filed only on 25.02.1988. It is not as though he was not aware of the sale made by the defendants 1 and 2 in the year 1983. In the year 1983, he was still a minor. Therefore, as rightly contended by the learned Counsel for the appellants, the suit items 1 and 2 in ''A'' schedule were not available for partition in the year 1988 when the suit was filed. In the year 1983, he was still a minor. Therefore, as rightly contended by the learned Counsel for the appellants, the suit items 1 and 2 in ''A'' schedule were not available for partition in the year 1988 when the suit was filed. So far as item Nos.3 and 4 are concerned, the properties were sold away in the year 1983, which is also not in dispute. Thus, these items were not available for partition, in the year 1983. It is not as though the purchasers were not bonafide purchasers. Absolutely there is no pleading to that effect also. Therefore, the bonafide purchasers for value cannot be deprived of their title for the suit property. 20. The plaintiff has not filed any Second Appeal against the rejection of the Cross Objection. Therefore, I need not consider that, in this Second Appeal. 21. In view of the forgoing discussions, I have to answer all the substantial questions of law only against the plaintiff and accordingly the decree for partition decreed by the trial court and confirmed by the lower appellate court deserves to be interfered with. 22. In the result, all the Second Appeals are allowed and the decree and judgment of the trial court which is confirmed by the lower appellate court are hereby set aside and the suit in O.S.No.5424 of 1996 on the file of the learned XII Assistant Judge, City Civil Court, Chennai stands dismissed. No costs. Consequently, connected Miscellaneous Petitions are also closed.