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2020 DIGILAW 347 (MAD)

Selvaraj v. Kanagammal

2020-02-17

N.SATHISH KUMAR

body2020
JUDGMENT : PRAYER : Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree in A.S. No.5 of 2008 on the file of the Subordinate Court, Pudukottai, dated 30.01.2009 confirming the Judgment and Decree in O.S.No.93 of 2002 dated 28.09.2007 on the file of the District Munsif cum Judicial Magistrate Court, Thirumayam. Aggrieved over the concurrent findings of the Courts below, the present Second appeal has been filed. 2. The parties are arrayed in the Second Appeal, as per their own ranking before the Trial Court. 3. The brief facts leading to the filing of the suit are as follows: The suit property originally belonged to one Palaniyandi and his wife Chinnammal. They died leaving behind their two daughters, namely Packiyathammal and Chittammal. The plaintiff Kanagammal is the daughter of Packiyathammal and Chittammal had one son, namely, Ramamoorthy. The said Ramamoorthy died issueless and his wife also died. Therefore, the plaintiff is in possession and enjoyment of the suit property and the name has been mutated in the revenue records. Since the plaintiff is residing at Manapparai, the defendants, in order to grab the property, had made an attempt to encroach the property on 10.11.2001, which was thwarted by the plaintiff. Hence, the suit has been filed for declaration and for permanent injunction. 4. It is the contention of the first defendant that the plaintiff is not the legal heir of the original owners. The second defendant Nithya was given in adoption to one Ramamoorthy on 11.03.1984 as per the custom. Thereafter, the adoption was also registered on 28.03.1984. From the date of adoption, the second defendant has become the daughter of Ramamoorthy and she is in enjoyment of the property. Packiyathammal and Chittammal are not the legal heirs of Palaniyandi and Chinnammal. Hence, the contention that the property was jointly enjoyed by the plaintiff and Ramamoorthy was also denied. The second defendant, the adopted daughter has taken a stand that she was given in adoption on 11.03.1984 and the same was registered on 28.03.1984. It is the further contention that the plaintiff has no right in the suit property and the defendants are enjoying the property. Hence, he prayed for dismissal of the suit. 5. Based on the above pleadings, the Trial Court framed as many as six issues. The parties went on trial. It is the further contention that the plaintiff has no right in the suit property and the defendants are enjoying the property. Hence, he prayed for dismissal of the suit. 5. Based on the above pleadings, the Trial Court framed as many as six issues. The parties went on trial. On the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.7 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B.1 to B.11 were marked. 6. Based on the evidence and materials, the trial Court decreed the suit in favour of the plaintiff. The First Appellate Court also confirmed the findings of the Trial Court. Aggrieved over the same, the present Second Appeal came to be filed. 7. While admitting the Second Appeal, the following substantial questions of law have been framed for consideration :- “1. Whether the findings of the Courts below are vitiated by its failure to consider the evidence of D.W.1 and D.W.2 establishing the registered Adoption Deed Ex.B.1 in the absence of any contra evidence besides the genuineness of Ex.B.1 was not disputed by any oral and documentary evidence ? 2. Whether the Courts below are right in not adverting to Section 50 of the Evidence Act evidencing the relationship between the parties and treating the second appellant as an adopted daughter of the deceased Ramamoorthy as well as the discharging of initial burden of proving adoption ? 8. The learned Senior Counsel appearing for the appellants vehemently contended that the plaintiff has not established the relationship with the original owners. The plaintiff is not at all residing in the present address and she is residing in some other place and the suit was filed only to grab the property. The plaintiff is not the daughter of Packiyathammal, as pleaded in the plaint. The plaint itself clearly shows that the plaintiff has no relationship with the original owners Palaniyandi and Chinnammal. Therefore, the plaintiff failed to prove the relationship with the original owners and as such, she cannot maintain the suit for declaration and injunction. 9. It is the further contention that the defendants have taken a specific stand that the second defendant was given in adoption to Ramamoorthy on 11.03.1984 and the Adoption Deed was also registered on 28.03.1984, Ex.B.1 was filed in this regard. 9. It is the further contention that the defendants have taken a specific stand that the second defendant was given in adoption to Ramamoorthy on 11.03.1984 and the Adoption Deed was also registered on 28.03.1984, Ex.B.1 was filed in this regard. The Courts below have not even considered the statutory presumption available to the document, as per Section 16 of the Hindu Adoption and Maintenance Act. There is no evidence whatsoever available on record to show that the plaintiff has rebutted the legal presumption. Ex.B.10-Invitation Card printed by Ramamoorthy, the adoptive father of D.W.2, was not even denied either in evidence or during cross-examination. This fact clearly established the adoption. When adoption is proved in the manner known to law, the Courts below holding that the adoption has not been proved is not in accordance with law. The Courts below shifted the burden on the defendants rather than the plaintiff, to disprove the adoption. Hence, he prayed for allowing the second appeal. 10. Whereas, the learned Senior Counsel appearing for the first respondent would submit that the evidence of D.W.1 and D.W2 would show that adoption is not proved by producing relevant materials. The Courts below have rightly held that the adoption has not been proved. He would further submit that the ceremonies for the adoption has not been established. To rebut the legal presumption, there need not be any direct evidence and even preponderance of probabilities available on record are sufficient to discharge the burden. The evidence of D.W.1 and D.W.2 clearly show that they are ignorance of the properties and D.W.2 evidence indicates that she has studied upto 12th standard in some other place. It clearly shows that the adoption could not have been registered, as contended by the defendants. Hence, it is submitted that the Judgment of the Courts below need not be interfered with. Hence, he prayed for dismissal of the second appeal. 11. The learned Senior Counsel appearing for the first respondent, in support of his submissions, has relied on the judgment reported in 2002 (2) CTC 173 in the case of Jai Singh Vs. Shakuntala. 12. I have perused the entire materials. 13. Hence, he prayed for dismissal of the second appeal. 11. The learned Senior Counsel appearing for the first respondent, in support of his submissions, has relied on the judgment reported in 2002 (2) CTC 173 in the case of Jai Singh Vs. Shakuntala. 12. I have perused the entire materials. 13. The suit is filed by the plaintiff only to establish her rights in respect of the entire suit property on the ground that the plaintiff has succeeded the suit property as the legal heir of the original owners, namely, Palaniyandi and Chinnammal. It is the case of the plaintiff in the plaint that Palaniyandi and Chinnammal were the original owners. Ex.A.5 and Ex.A.6 were filed to show that the properties were originally purchased in the name of Palaniyandi. Ex.A.5 filed by the plaintiff itself clearly indicates that the grandmother's name of the plaintiff is shown as 'Muthammal', whereas the specific case of the plaintiff is that grandmother's name is Chinnammal in the plaint. Even in the evidence, when a specific suggestion was put to the plaintiff that her mother is not born to Palaniyandi and Chinnammal, it is specifically denied by P.W.1. Be that as it may, the plaint proceeded as if after the death of her cousin brother namely, Ramamoorthy, the property was enjoyed absolutely by the plaintiff and the revenue records have been changed in her name instead of their names. 14. When the evidence of P.W.1 carefully seen in its entirety, it is seen that she does not even know the details of the property. Non-disclosure of the nature of the property in respect of which the relief is sought for, itself shows the plaintiff's ignorance over the property. If really the plaintiff was continuously enjoying the property, as stated by her in the plaint, in her evidence as P.W.1, normally, she would have presented the details, like nature of the property and details of the property, whereas, the evidence of P.W.1 is otherwise. On perusing her evidence in its entirety, the same indicates that she is totally unaware of the details of the property. Such evidence is perused and considered along with the other circumstances namely, the discrepancies in the genealogy set out in the plaint and the specific evidence denying the suggestion clearly, probablise the case of the defendants that the plaintiff has not established the legal heir properly. Such evidence is perused and considered along with the other circumstances namely, the discrepancies in the genealogy set out in the plaint and the specific evidence denying the suggestion clearly, probablise the case of the defendants that the plaintiff has not established the legal heir properly. It is the specific case of the defendants that the second defendant was given in adoption in the year 1984 i.e. on 11.03.1984. After observing all the customary rights prevailing in the community, adoption has been registered on 28.03.1984. Ex.B.1 registered Adoption Deed was filed in this regard. A careful perusal of Ex.B.1 would go to show that on 11.03.1984 adoption has been given by the natural parents to one Ramamoorthy. The natural father of Nithya was examined as D.W.1, who is the competent person to speak about the giving her daughter in adoption and D.W.2, who was the adopted daughter, has also given evidence to prove the adoption, Ex.B.1 was also filed. In-fact, in the said registered document, stamp papers were also obtained in the name of 'Ramamoorthy'. 15. It is a well settled law that any document is registered, there is a presumption that the registration is done by the authorities properly and all the Officials act done properly. As such, when the registered document is filed before the Court, it has to be presumed that the registration was done properly. 16. In such view of the matter, when the deed of Adoption is produced before this Court, a statutory presumption come in favour of adoption under Section 16 of Hindu Adoption and Maintenance Act. If once such registered document is produced, the Court shall presume that the adoption has been made in compliance with the provisions of this Act, unless and until it is disproved. Therefore, the statutory presumption is in favour of the defendants, when the registered document of adoption is produced. Then, the burden lies on the other side to disprove the factum of adoption. Of course, such statutory presumption is rebuttable one. 17. It is also a well settled law that to rebut the legal presumption, there need not be any direct evidence. Even, evidence or probabilities or circumstances would suffice to dislodge a legal presumption. But, the entire burden lies on the plaintiff to bring out the materials or probabilities to discharge the legal presumption. 17. It is also a well settled law that to rebut the legal presumption, there need not be any direct evidence. Even, evidence or probabilities or circumstances would suffice to dislodge a legal presumption. But, the entire burden lies on the plaintiff to bring out the materials or probabilities to discharge the legal presumption. On a perusal of the entire evidence of P.W.1 and P.W.2, this Court do not find any material except the denial of the documents, no circumstances or probabilities are brought on record to discharge the legal presumption. 18. The specific case of D.W.2 is that she was always treated as an adoptive daughter and Ex.B.10 was printed by his adoptive father. Ex.B.10 was marked by D.W.2 and in the entire cross examination of D.W.2, not even a suggestion was put by the plaintiff denying the document. It is also to be noted that when the evidence given in particular fact with regard to adoption and spoken in chief examination and the same is not denied. Such evidence and document which are not denied shall be deemed to be admitted by the plaintiff. 19. The Revenue records Exs.B.2 to B.9 and B.11 clearly indicate that the revenue records have been changed in the name of the defendants, whereas, on the plaintiff's side, except Ex.A.6 legal heir certificate, no other documents were filed to prove her legal heirship. Exs.A.1 to Ex.A.5 are only the certified copy of the sale deeds. Ex.A.7 chitta has been obtained in the year 2006, during the pendency of the proceedings. If really the plaintiff is all along in possession of the property by way of succession and inheritance, her name should be found place in the revenue records or in some other documents. The manner in which Ex.A.7 is obtained after the suit, clearly indicates that the plaintiff is not in possession of the property. 20. Further, as discussed above, the relationship of the plaintiff with Palaniyandi is also not established. The manner in which Ex.A.7 is obtained after the suit, clearly indicates that the plaintiff is not in possession of the property. 20. Further, as discussed above, the relationship of the plaintiff with Palaniyandi is also not established. The discrepancies as to the name of wife of Palaniyandi in the plaint and Ex.A.5 is also not clarified and established by the plaintiff and non-filing of any other documents to show that the plaintiff is in possession of the property by way of succession or inheritance and clearly probablise the defence case that the plaintiff has no title over the property and in fact she is not the legal heir of the original owners. Exs.A.1 to A.6 are also certified copies of the documents. If really the plaintiff is coming from the same family, the original title deeds must be with the plaintiff. These are all the facts which cannot be ignored. Those documents also obtained only in the year 1997 i.e. on 04.08.1997 just few years before filing of the suit. The suit has been filed in the year 2001. All these facts clearly probablise the defendants' case. D.W.1, who is the natural father of D.W.2, has clearly spoken about giving in adoption of D.W.2 and he is the competent person and special means of knowledge about the adoption and he was a party to the said document. Therefore, his evidence is relevant not only to prove the relationship of one person with other under Section 50 of Indian Evidence Act, since he has a direct knowledge of the adoption. 21. In Jai Singh Vs. Shakuntala reported in 2002 (2) CTC 173 0, the Hon'ble Supreme Court has held that the Court is not precluded from looking into evidence produced contrary to adoption and mere compliance with Section 16 of Act does not dispense with further requirement of acceptance of such adoption. 22. Absolutely, there is no dispute with regard to the above judgment. Whereas, in this case, the plaintiff's relationship itself has not been established. Further, D.W.1, who has a special knowledge about the adoption, has specifically spoken about the same and as discussed above, Ex.B.10 is not denied and further, there is no material available on record to dislodge the legal presumption attached to the Registered Adoption Deed. 23. In Mst. Deu and others Vs. Further, D.W.1, who has a special knowledge about the adoption, has specifically spoken about the same and as discussed above, Ex.B.10 is not denied and further, there is no material available on record to dislodge the legal presumption attached to the Registered Adoption Deed. 23. In Mst. Deu and others Vs. Laxmi Narayan and others reported in (1998) 8 Supreme Court Cases 701, the Hon'ble Supreme Court has held in paragraph No.3 as follows : “3. In view of Section 16 aforesaid Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the persons mentioned therein, the Court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved. According to us, it was not open to the defendants of the said suit for partition to collaterally challenge the said registered deed of partition. In view of Section 16 of the aforesaid Act it was open to them to disprove such deed of adoption but for that they had to take independent proceeding. The High Court was fully justified in directing that the respondent be substituted in place of Smt. Phulla on the basis of the registered deed of adoption produced before the Court.” Having regard to the above judgment and having found that no materials whatsoever to dislodge the legal presumption, the plaintiff cannot succeed in her attempt to prove the title to the property. 24. In such view of the matter, this Court is of the view that the Courts below have not appreciated the evidence in proper perspective and erroneously taken an incorrect view. Accordingly, all the substantial questions of law are answered in favour of the appellants. 25. In the result, the second appeal is allowed and the Judgment and decree of both the Courts below are set aside and the suit in O.S.No.93 of 2002 is dismissed. However, there shall be no order as to costs.