Madras High Court

Dated : 27.3.2012

C O R A M

The Honourable Mr. Justice C.NAGAPPAN

and

The Honourable Mr. Justice M.SATHYANARAYANAN

Original Side Appeal No. 173 of 2010

K.Rajendran .. Appellant

vs..

1. Elumalai Chettiyar (died)

2. Leela Kumari

3. Vridhambal

4. Govindarajan

5. Jyothi

6. Shankar

7. Kaliya Perumal

8. Ramaswamy (died)

9. Kumar

10. Audilakshmi

11. Padmini

12. Vatsala

13. Indira

14. Tirupurammal

15. Baby Ammal

16. R. Pushpalatha

17. R. Rajesh

18. R. Chitra

19. R. Vignesh .. Respondents

20.

[R6 declared as Major and discharged

the guardian (R5 Jyothi) from

guardianship vide Order dated 20.7.2011

made in MP No.1/11 in OSA No.173/2010.]

PRAYER : Original Side Appeal under Order XXXVI Rule 1/11 of O.S. Rules, against the Order dated 12.11.2009 passed in C.S.No. 425 of 1998.

For Appellant : Mr. M.S.Subramanian

For R.4 : Mr. R.Viduthalai, Sr.Counsel

for Mr. L.N.Praghasam

For R.7 : Mr. T.P.Manoharan

For R.12 : Mr. S.T.Varadarajulu

R.1 and R.8 died

R.6 declared major and

R.6 discharged vide Order of this Court

dt. 20.7.2011 made in MP No.1 of 2011

J U D G M E N T

C.NAGAPPAN, J.

This appeal is preferred against the Judgment and Decree dated 12.11.2009 passed in C.S.No.425 of 1998 on the file of this Court, by the learned single Judge. The plaintiff is the appellant.

2. The appellant/plaintiff filed the suit as indigent person seeking for a Declaration that ‘B’ and ‘C’ schedule properties belong to him; to direct the defendants to deliver possession of the suit properties to him; and to pay a sum of Rs.54,000/- towards the past damages and also future damages at the same rate together with the costs of the suit.

3. The case of the plaintiff is briefly stated as follows:

(i) Parasurama Chettiar married Kuttiammal and they had no issues. Parasurama Chettiar was running a Maligai shop as well as hardware business at Madras and also doing money lending business and by his own exertions, he acquired number of properties including houses and landed properties. Parasurama Chettiar was having a brother by name Natesa Chettiar. Kuttiammal had three brothers and one sister, namely Arumugam, Natesan, Manickam and Meenakshi, and the plaintiff, who is the son of Manickam, was adopted by Kuttiammal. Natesa Chettiar married Thirupurammal as his third wife and defendants 7 to 13 are their children and defendant No.14 is his widow. Kuttiammal’s sister Meenakshi was married to Munusamy Chettiar and the first defendant Elumalai Chettiar is their son and defendants 2 to 4 are the children of Elumalai Chettiar and the fifth defendant is the husband of Mangayarthilakam, one of the daughters of Elumalai Chettiar and the sixth defendant is the son of the fifth defendant. (ii) The Settlement deed dated 23.6.1961 purported to have been executed by Parasurama Chettiar describing Elumalai as his adopted son is not true. There was no adoption of Elumalai Chettiar by Parasurama Chettiar either in fact or in law. A Revocation deed was also made on 10.3.1967 by way of abundant caution. There was no joint family properties and no joint properties owned by Parasurama Chettiar and Natesa Chettiar and all the properties were the exclusive properties of Parasurama Chettiar. Parasurama Chettiar was becoming aged and taking advantage of the relationship, Natesa Chettiar had brought about a Partition deed dated 25.7.1967 as though there were joint family properties and they were divided between Parasurama Chettiar and Natesa Chettiar and Parasurama Chettiar was to take 1/3 share and Natesa Chettiar was to take 2/3 shares in the properties and the said partition deed is invalid and inoperative. (iii) Parasurama Chettiar owned a car and the first defendant Elumalai Chettiar was his driver and taking advantage of that, Elumalai Chettiar had created documents to suit his own purpose and made competing claims to the properties of Parasurama Chettiar. Elumalai Chettiar and his children filed a civil suit in O.S.No.76 of 1969 before the Sub-Court, Cuddalore against Parasurama Chettiar, Natesa Chettiar and others claiming 1/2 share in ‘A’ and ‘B’ schedule properties and 1/3 share in ‘C’ schedule properties. Parasurama Chettiar died on 22.9.1969 and his widow Kuttiammal was impleaded as 11th defendant in the suit. During the pendency of the said suit, Elumalai Chettiar seems to have brought about a Will dated 20.9.1969 purported to have been executed by Parasurama Chettiar and the said Will is not true and valid. The suit in O.S.No.76/69 ended in compromise. Elumalai Chettiar and Natesa Chettiar by misrepresentation, undue influence and coercion had induced Kuttiammal to enter into a compromise and as per the compromise, Kuttiammal was to be given Rs.26,000/- and 2 = acres of land each by Natesa Chettiar and Elumalai Chettiar. Since the compromise decree was not registered, it is invalid, inoperative and ineffective. The Will dated 20.9.1969 purporting to deal with Triplicane house property has not been probated and no rights have been claimed under the said Will. The plaintiff as adopted son of Kuttiammal is entitled to all the properties. In the final decree proceedings, the plaintiff has not been impleaded and hence it had been dismissed. (iv) The plaintiff was given in adoption to Kuttiammal by his natural father Manickam Chettiar on 14.5.1982 and the adoption is according to the custom and usage of the community and the family. ‘Datta Homam’ ceremony was also celebrated. It is also evidenced by registered Adoption deed dated 14.5.1982 and the factum and the validity of the same cannot be questioned. Kuttiammal died on 10.6.1983 leaving behind her adopted son, namely the plaintiff, and in the court proceedings also the plaintiff has been recognised as the adopted son and he has also obtained a mortgage decree. The plaintiff is entitled to all the properties of Parasurama Chettiar as the adopted son of Kuttiammal. Item 97 of the suit properties is the house property situates at Madras giving substantial rental income of Rs.1,800/- per month and defendants 1 to 6 are enjoying the same and the properties at Amanankuppam are in possession and enjoyment of defendants 7 to 14 and hence, they are liable to pay past and future damages.

4. The fourth defendant in his written statement has stated that it is true that Parasurama Chettiar was running a maligai shop as well as hardware business at Madras and out of his own earnings, he acquired number of properties, but the plaint averment that Natesa Chettiar was also lending money and earning substantial income, is false. Natesa Chettiar had no individual business and only looked after the lands belonged to Parasurama Chettiar in the village. It is further stated by the fourth defendant that Elumalai Chettiar was adopted by Parasurama Chettiar according to the custom and convention of the community and it is also evidenced by registration of Settlement deed dated 23.6.1961. The plaint averment that Elumalai Chettiar was a driver of Parasurama Chettiar is denied as false and Parasurama Chettiar adopted Elumalai Chettiar by the Adoption deed. It is true that the Partition deed dated 25.7.1967 is invalid and inoperative since the entire properties were purchased by Parasurama Chettiar out of his own business income. It is also true that Elumalai Chettiar filed a suit in O.S.No.76 of 1969 against Parasurama Chettiar, Natesa Chettiar and others before Sub-Court, Cuddalore and pending suit, Parasurama Chettiar executed the Will dated 20.9.1969 bequeathing the properties mentioned therein in favour of Elumalai Chettiar and the Will was also probated in O.P.No.38 of 1971 with the consent of all the respondents in the suit in O.S.No.76 of 1969. After the death of Parasurama Chettiar, his widow Kuttiammal was under the care and custody of Elumalai Chettiar and as a adopted son of Parasurama Chettiar, he is entitled to the properties in terms of the Will dated 20.9.1969. The compromise decree passed in O.S.No.76 of 1969 is not valid. The fourth defendant has specifically denied in the written statement that the plaintiff was adopted by Kuttiammal on 14.5.1982 and according to him, the Adoption deed dated 14.5.1982 is a false creation and not valid in law. According to the fourth defendant, the plaintiff was never recognised as adopted son of Kuttiammal by any of the defendants at any point of time and he is not entitled to the properties in any manner whatsoever. It is also stated in the written statement that the plaintiff is not an indigent person since he is in possession of the properties worth about lakhs and capable of paying the court fee.

5. The eighth defendant in his written statement has denied the plaint averments that Parasurama Chettiar was running a maligai as well as hardware business by himself and had acquired number of properties by his own exertions. According to the eighth defendant, all the business were run jointly by Parasurama Chettiar and Natesa Chettiar and investment and management were also joint and for the convenience of management, Parasurama Chettiar lived in Madras while Natesa Chettiar managed the properties in the village and they were joint owners having equal rights in the properties. It is further stated in the written statement that there was no settlement either on 23.6.1961 or any other date and the settlement deed itself is non-existent and he has also denied that Elumalai Chettiar was described as adopted son of Parasurama Chettiar and has stated that there was no such adoption. It is further stated by the eighth defendant that there was no coercion or undue influence of Kuttiammal and she voluntarily entered into a compromise in the civil suit in O.S.No.76 of 1969 and a final decree was passed on 24.4.1974 in the presence of all necessary and proper parties and the decree became final. The eighth defendant has further stated that Adoption deed pleaded by the plaintiff is false and there is no custom or usage for such adoption in the community or in the family and the plaintiff being a major, Kuttiammal could not have adopted him and the plaint averment regarding ‘Datta Homam’ giving the plaintiff in adoption by natural father and the registration of the Adoption deed, are false and denied. According to the eighth defendant, the plaintiff was not the adopted son of Kuttiammal and he was never treated or recognised as her adopted son and he has no right in any of the properties and not entitled to any relief and he is not entitled to sue as indigent person since he is a man of means. It is further stated by the eighth defendant that the plaintiff is not entitled to any relief regarding ‘B’ and ‘C’ schedule properties and the eighth defendant is in possession of all the suit properties except ‘C’ schedule properties, right from the date of compromise dealt with in O.S.No.76 of 1969 and has also prescribed title to the said properties by adverse possession.

6. Originally ten issues were framed and on 12.9.2008, three more additional issues were framed for trial and the plaintiff examined himself as P.W.1 and marked Exs.P1 to P16. The fourth defendant examined himself as D.W.1 and examined Saravanan as D.W.2 and Exs.D1 to D17 were marked. The learned single Judge elaborately dealt with eighth issue as to whether the adoption pleaded by the plaintiff is true and valid and held that the plaintiff is not the adopted son of Kuttiammal and he has no locus standi to file the suit and the suit is not maintainable and further held that there is no necessity to go into the other issues in view of the finding in issue No.8 and dismissed the suit with costs and directed the plaintiff to pay the court fees due to the Government. Challenging the dismissal of the suit, the plaintiff has preferred the present appeal. For the sake of convenience, the parties are referred to in this judgment as arrayed in the suit.

7. The only point for determination in the appeal is as to whether the adoption pleaded by the plaintiff is true and valid?

8. The admitted fact is that Kuttiammal is the wife of Parasurama Chettiar and they had no issues. According to the plaintiff, Parasurama Chettiar was running a Maligai shop as well as hardware and money lending business and by his own exertion, he acquired number of properties including house and landed properties and after the death of Parasurama Chettiar, Kuttiammal adopted the plaintiff, who is none other than her brother’s son, on 14.5.1982, according to custom and usage of the community by performing Datta Homam and it is also evidenced by the registered adoption deed dated 14.5.1982 and after the death of Kuttiammal on 10.6.1983, the plaintiff as her only heir, is entitled to all the properties of Parasurama Chettiar.

9. The first defendant Elumalai Chettiar is the sister’s son of Kuttiammal and it is claimed that he was recognised as the adopted son of the deceased Parasurama Chettiar. Defendants 4 and 8 filed independent written statements denying the plea of adoption made by the plaintiff, and the 8th defendant has specifically pleaded in his written statement, that the plaintiff being a major, could not have been adopted by Kuttiammal and the adoption is not valid in law.

10. Ex.P1 is the registered adoption deed dated 14.5.1982. In the recitals therein, it is stated that Rajendran, the plaintiff herein, was given in adoption by his natural father S.Manickam to and in favour of Kuttiammal aged 77 years, by celebrating Datta Homam ceremony. In paragraph No.18 of the plaint, the said adoption is pleaded. The plaintiff examined himself as P.W.1 and in his chief-examination, he has testified that he was adopted by Kuttiammal in the year 1982 as per the custom and tradition of their community and Ex.P2 is the original receipt issued by the Temple authority and Ex.P3 series are the photographs showing the performance of Datta Homam and Ex.P1 is the original registered adoption deed. The fourth defendant examined himself as D.W.1 and he has testified that the plaintiff was 22 years old and was married at the time of alleged adoption by Kuttiammal in the year 1982.

11. It is the contention of the learned Counsel for the appellant that the factum of adoption of the plaintiff by Kuttiammal is established by Exs.P1, P11 and D7. Ex.P1 is the registered adoption deed. Ex.P11 is the Suit Register extract in O.S.No.12 of 1982 on the file of Sub Court, Tindivanam. The said suit was filed by Kuttiammal against Arumuga Kounder and others for recovery of a sum of Rs.7,000/- being the principal due on a registered mortgage deed dated 1.4.1965, executed by the defendants therein in favour of late Parasurama Chettiar, with interest and costs. As per the entry in Column 3 of the said Suit Register extract, on the death of Kuttiammal, plaintiff Rajendran was impleaded as her L.R. as per order in I.A.No.2670/83 dated 15.11.1983, and as per its Column 8, preliminary decree for sale was passed on 29.3.1984. This was projected on the side of the plaintiff as one of the circumstances showing his adoption.

12.Ex.D7 is the certified copy of the order dated 7.10.2002, passed by a Division Bench of this Court in C.R.P.(NPD) No.1375 of 2002. The first defendant herein, Elumalai Chettiar filed suit in O.S.No.76 of 1969 against Parasurama Chttiar and others for partition and separate possession of his half share in "A" and "B" Schedules of properties and during the pendency of the suit, the first defendant therein, Parasurama Chettiar died and as his L.R., his wife Kuttiammal was impleaded as 11th defendant and defendants 2 to 11 entered into a compromise and a compromise decree came to be passed on 21.12.1974, by the Sub Court, Cuddalore. Interlocutory Application in I.A.No.457 of 1984 was filed in the said suit under Order 26 Rule 13 of C.P.C. for appointment of Commissioner to divide the properties as per the compromise decree. A counter to the said application came to be filed stating that one Rajendran who is the plaintiff herein, is the adopted son of Kuttiammal, the 11th respondent therein, and he is a necessary party and he being not impleaded, the application is not maintainable for non-joinder of necessary parties. Accepting the same, the trial Court dismissed the application and in the revision preferred, the Division Bench held that except bald allegation that Rajendran is a heir to Kuttiammal, no material has been placed before the Court to establish that, in fact, she adopted Rajendran and hence there is no substance in the reasoning of the trial Court in dismissing the application and the revision was allowed by appointing a Commissioner to divide the suit properties. The contention of the present plaintiff is that the respondents in the above interlocutory application who are the defendants in this suit, in their counter, have accepted the adoption of the present plaintiff Rajendran by Kuttiammal.

13.In addition to the above, learned Counsel for the appellant submits that as per Section 16 of the Hindu Adoptions and Maintenance Act, 1956, since the adoption of the plaintiff is recorded by Ex.P1 registered adoption deed, there is a presumption that the adoption has been made in compliance with the provisions of the Act.

14.Per contra, learned Senior Counsel for the respondents submits that the plaintiff Rajendran was 22 years old as on the date of alleged adoption and he was also married and hence he could not have been adopted without proving any custom or usage in favour of such adoption. In support of the said contention, learned Senior Counsel referred and relied on the provisions of Section 10(iii) and (iv) of the Hindu Adoptions and Maintenance Act and also relied on some decisions.

15.Ex.P1 is the registered adoption deed dated 14.5.1982 and in the recitals, the age of Rajendran, the person adopted, is mentioned as 22 years. In the oral testimony, D.W.1, the 4th defendant, in his examination in chief, has stated that at the time of alleged adoption, the plaintiff Rajendran was 22 years old and he was married.

16.Section 10 of the Hindu Adoptions and Maintenance Act sets out four qualifications for a person being validly taken in adoption and they are:

(i)he or she is a Hindu;

(ii)he or she has not already been adopted;

(iii)he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; and

(iv)he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

17.In the present case, we are concerned with Clauses (iii) and (iv) which stipulate respectively that the person to be adopted should not have been married and should not have completed the age of fifteen years. It also sets out an exception and that is if there is a custom or usage applicable to the parties, which permits the married person being taken in adoption and the person who has completed the age of fifteen years being taken in adoption, such a person could be validly adopted. Insofar as Clause (iii) is concerned, the defendants 4 and 8 in their independent written statements, have not stated that the plaintiff Rajendran was married at the time of alleged adoption. Only in oral testimony, D.W.1, fourth defendant, has stated that plaintiff Rajendran was married at the time of adoption. It is relevant to note that there was no cross-examination of D.W.1 by the plaintiff in this regard and not even a suggestion has been put to him denying the marriage. Apart from the above, it is an admitted fact that the plaintiff Rajendran was 22 years old on the date of Ex.P1 adoption deed and the validity of such adoption could be upheld only when the custom or usage applicable to the parties permitting the adoption of a person over the age of fifteen years is proved and established as stipulated in Clause (iv) referred above. In the recitals in Ex.P1 adoption deed, it is only stated that Kuttiammal expressed her willingness and desire to take Rajendran in adoption and the natural father of Rajendran was desirous and willing to give his son in adoption to Kuttiammal and for the purpose of adoption, Datta Homam ceremony was celebrated on 14.5.1982 between 9.00 A.M. and 10.00 A.M. at Thiruvatteeswarar Devasthanam, Triplicane, Madras 5 and the natural father handed over Rajendran to Kuttiammal on the same day. Nothing is stated in Ex.P1 adoption deed that the adoption was in accordance with the custom or usage of the community to which the parties belong. Section 3 (a) of the Act referred above, states that the expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. In the present case, the pleading with regard to custom or usage prevalent in the community of the parties permitting adoption of persons who have completed the age of fifteen years, is totally lacking. In paragraph No.18 of the plaint, it is stated that the plaintiff was given in adoption by his natural father Manickam Chettiar and was taken in adoption by Kuttiammal on 14.5.1982 and the adoption is according to the custom and usage of the community and family by performing Datta Homam ceremony and it is also evidenced by a registered adoption deed dated 14.5.1982. The only witness examined by the plaintiff, is himself, as P.W.1 and he has stated that his adoption was done as per the custom and tradition of their community by performing Datta Homam. Ex.P2 is the receipt issued by the temple authority and Ex.P3 series are the photographs in respect of Datta Homam performed. Custom or usage as an exception to the conditions to be fulfilled under Section 10 (iii) and (iv) of the Act referred above, has to be specifically pleaded and established by the party propounding such custom. As already seen, there is no averment in the plaint relating to such custom or usage which permits persons who have completed the age of fifteen years being taken in adoption and oral evidence is also lacking.

18.Reliance was placed by the learned Counsel for the appellant/plaintiff on the decision of the Supreme Court in ATLURI BRAHMANANDAM (D) THROUGH LRS V. ANNE SAI BAPUJI (2010 (6) CTC 555). In the facts of that case, the person who was taken in adoption, was more than fifteen years of age at the time of adoption. But reliance was placed upon the exception provided under Section 10(iv) by leading cogent and reliable evidence like the recitals in the adoption deed to show that there was a custom in the community of the parties for adoption of a boy even above the age of fifteen years and in those circumstances, the Supreme Court held that exception which is engrafted in the same part of the provision of Section 10 of the Act, was satisfied and the Court has to presume that the adoption has been made in compliance with the provisions of the Act, since the person who challenged adoption had utterly failed to challenge the evidence let in by the party propounding adoption. In the present case, as already seen, the plaintiff has neither pleaded nor adduced evidence to show the existence of such a custom or usage permitting the adoption of a person even above the age of fifteen years. Hence the above decision does not advance the case of the plaintiff in any way.

19.Reliance was placed by the learned Senior Counsel appearing for the respondents/defendants on the following decisions:

(i)The Supreme Court in the decision in DHANRAJ V. SMT.SURAJ BAI (AIR 1975 SUPREME COURT 1103), held that under the law as engrafted in Section 10 of the Hindu Adoptions and Maintenance Act, a person is not capable of being taken in adoption if he or she has completed the age of fifteen years and that is the reason that the word "child" has been used in Sections 9 and 11 and the scheme of the Act was not to make a child of fifteen years of age or above fit to be taken in adoption and exception was made in favour of a custom to the contrary. (ii)A learned Single Judge of this Court in the decision in MAHALINGAM V. KANNAYYAN AND ANOTHER (AIR 1990 MADRAS 333), has held that Clause (iv) of Section 10 of the Act referred above, stipulates that the person to be adopted should not have completed the age of fifteen years and it also sets out an exception to the required qualification by stating that if there is a custom or usage applicable to the parties, which permits persons who have completed the age of fifteen years being taken in adoption, such a person could be validly adopted and the exception must be proved and it cannot be presumed and the presumption under Section 16 of the Act does not cover the case of an exception to the general requirements of the provisions of the Act and that is how Section 16 must be construed. It is further held that if there should be an exception as contemplated under Section 10(iv) of the Act, certainly there has got to be a pleading and proof of the same and by having resort to Section 16 of the Act, it is not possible to dispense with the said pleading and proof and Section 16 has not relevance at all with regard to the exception set forth in Section 10(iv) of the Act. We are in entire agreement with the view expressed by the learned Single Judge of this Court in the above decision.

20.In the present case, as already seen, the plaintiff Rajendran was more than fifteen years of age at the time of Ex.P1 adoption deed and in the absence of any recital in Ex.P1 deed that the adoption was in accordance with the custom or usage of the community of the parties and also in the absence of any pleading or evidence in this regard, the exception provided under Section 10(iv) of the Act cannot be invoked in the present case by the plaintiff and the presumption under Section 16 of the Act does not cover the case of an exception to the general requirements under Section 10 of the Act. The plaintiff Rajendran could not have been taken in adoption by Kuttiammal under Ex.P1 adoption deed and the finding of the learned Single Judge that the adoption pleaded by the plaintiff is not true and valid is sustainable. The point is determined accordingly. There are no merits in the appeal and the same is liable to be dismissed.

21.In the result, this original side appeal is dismissed and the judgment and decree of the learned Single Judge are confirmed. However, considering the relationship of the parties, there shall be no order as to costs in the appeal.

(C.N.J.) (M.S.N.J.)

27.3.2012

Index: yes

Internet: yes

pb/nsv

C.NAGAPPAN, J.

and

M.SATHYANARAYANAN, J.

pb/nsv

P.D. Judgment in

O.S.A. No. 173 of 2010