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Alagammai vs The District Collector on 16 August, 2019

C.R.P(MD)No.1266 of 2019

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 16.08.2019

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

C.R.P(MD)No.1266 of 2019

Alagammai .. Petitioner/
Plaintiff
Vs.

The State of Tamil Nadu rep. by
1.The District Collector,
Collectorate,
Tiruchirappalli.

2.The Thasildar,
Thasildar Office,
Trichy East,
Townhall Street,
Tiruchirappalli. .. Respondents/
Defendants
PRAYER: Civil Revision Petition is filed under SectionArticle 227 of the
Constitution of India praying to set aside the non-speaking order of
return in O.S.No.unnumbered/2019 dated 23.01.2019 and direct the
District Munsif Court, Tiruchirappalli to number the
O.S.No.unnumbered/2019 and allow the civil revision petition.
For petitioner : Mr.J.Jeyakumaran

For Respondents : Mr.J.Gunaseelan Muthiah,
Addl. Govt. Pleader.

ORDER

Against the return of plaint, this revision petition has been

filed.

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C.R.P(MD)No.1266 of 2019

2.The petitioner / plaintiff filed a suit seeking to direct the 2nd

respondent / 2nd defendant to issue legal heirship certificate by

adding the newly adopted son ‘Chokkalingam’ as legal heir of her

husband, viz., the deceased Muthu, on the basis of the registered

adoption deed. The learned Judge returned the plaint stating as to

how the adoption is valid under the provisions of Hindu Adoption and

SectionMaintenance Act, 1956. The petitioner / plaintiff has represented

the plaint giving explanation in detail. Since the learned Judge has

returned the plaint once again stating that the previous query has

not been explained, the petitioner / plaintiff has filed the present

revision seeking to set aside the order of return and also direct the

learned Judge to number the plaint.

3.The learned counsel for the petitioner / plaintiff would

submit that the petitioner has represented the plaint stating that as

per the provisions contemplated under Section 8 of the Hindu

Adoptions and SectionMaintenance Act, 1956, even a female Hindu, who is

of sound mind and is not a minor, has the capacity to take a son or

daughter in adoption and the only condition is that she must get

consent from her husband, unless the husband has completely and

finally renounced the world and in the present case, the husband of

the petitioner / plaintiff died on 13.10.2017 and hence seeking

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C.R.P(MD)No.1266 of 2019

consent from him, does not arise. But, the Court below has returned

the plaint once again as the previous return has not been complied

with. Thus, he prayed to set aside the order of return and also direct

the learned Judge to number the plaint.

4.Heard the learned counsel for the petitioner and the learned

Additional Government Pleader for the respondents and perused the

materials available on record.

5.Perusal of records shows that the learned Judge has returned

the plaint stating as to how the adoption deed is valid under the

provisions of Hindu Adoption and SectionMaintenance Act, 1956. Section 8

of the Hindu Adoptions and SectionMaintenance Act, 1956, reads as follows:

“8.Capacity of a female Hindu to take in adoption:
Any female Hindu :-

(a)who is of sound mind,

(b)who is not a minor, and

(c)who is not married, or if married, whose marriage
has been dissolved or whose husband is dead or has
completely and finally renounced the world or has ceased
to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind, has the
capacity to take a son or daughter in adoption”.

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C.R.P(MD)No.1266 of 2019

6.The husband of the petitioner / plaintiff died on 13.10.2017.

Subsequently, the petitioner / plaintiff has adopted the said

Chokkalingam vide registered adoption deed dated 19.06.2018.

Section 8 of the said Act is very clear that a female Hindu has the

capacity to take a son or daughter in adoption and after the death of

her husband, there is no question of getting consent from her

husband. The Court below without considering the above aspect, has

erroneously returned the plaint. Therefore, the order of return made

by the Court below is set aside and the learned Judge is directed to

number the suit and dispose of the same on merits and in

accordance with law. The civil revision petition is allowed

accordingly. No costs.

7.Registry is directed to return the original plaint filed

alongwith the revision, to the petitioner / plaintiff forthwith, after

retaining a photocopy of the same.

16.08.2019
Index : Yes/No
Internet : Yes/No
smn

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C.R.P(MD)No.1266 of 2019

To

1.The District Munsif,
Tiruchirappalli.

2.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.

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C.R.P(MD)No.1266 of 2019

J.NISHA BANU, J.

smn

ORDER MADE IN
C.R.P(MD)No.1266 of 2019

16.08.2019

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