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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