BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.(MD).No340 of 2008
M.P.(MD)Nos.1 and 2 of 2008 and 1 of 2009
1.K.N.Subramanian (died) … 1st Appellant / Appellant / Plaintiff
7.S.Yegammai .. Appellants 2 to 7
(A2 to A7 brought on record as the LRS., of the deceased sole appellant
vide Court order dated 18.06.2013 made in M.P.(MD)No.1 of 2013 in
S.A.(MD)No.340 of 2008)
6.Nachiappan … Respondents 1 to 6 / Respondents
/ Defendants 1, 2 4 to 7
10.Amutha .. Respondents 7 to 10
(R7 to R10 are brought on record as LRS., of the deceased R2 vide
Court order dated 11.07.2018 made in M.P.(MD)No.2 of 2015 in S.A.
(MD)No.340 of 2008)
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, to set aside the judgment and decree dated 25.06.2007
made in A.S.No.35 of 2005 on the file of the District Court, Sivagangai,
confirming the judgment and decree dated 28.06.2005 made in O.S.No.
71 of 2003 on the file of the Subordinate Judge, Devakottai.
For Appellants : Mr.S.Srinivasa Raghavan
For R1 R5 to R10 : Mr.AR.L.Sundaresan,
For R2 : Died
For R3 R4 : No Appearance
This Second Appeal has been filed against the concurrent
finding of the Courts below, dismissing the suit filed for partition.
2.The case of the plaintiff is that the suit property was
purchased by the adoptive father of the plaintiff on 23.01.1919. Hence,
the suit is filed, claiming partition of ¼ share in the schedule properties.
The defendants denied the adoption and it is their contention that the
plaintiff has no connection to the defendants either by birth or
otherwise. The suit property is the joint family property.
3.Based on the above pleadings, the trial Court has framed
necessary issues. On the side of the plaintiff, three witnesses were
examined and Exs.A.1 to A.9 were marked. On the side of the
defendants, two witness were examined and Exs.B.1 to B.15 were
marked. On consideration of both oral and documentary evidence, the
trial Judge has found that the adoption is not proved and dismissed the
suit. The Appellate Court has also concurred the finding of the trial
Court. As against which, the present Second Appeal is filed.
4.At the time of admission of the Second Appeal, the following
substantial question of law was framed:-
“(i) Whether the judgment and decree of the
Court below is erroneous on account of its failure to
consider the factum of adoption in the light of the
Hindu Adoption and SectionMaintenance Act with particular
reference to the adoption which had taken place prior
to commencement of the said Act?”
5.During pendency of the Appeal, an application has also filed
to receive the additional documents to prove the so-called adoption.
6.Heard the learned counsel appearing for the appellants and
the learned Senior Counsel appearing for the respondents 1 and 5 to 10.
7.It is the contention of the learned counsel appearing for the
appellants that additional documents are absolutely necessary to prove
the adoption, wherein the sale deed of the year 1985, clearly indicates
that the adoptive father and others jointly executed the sale deed and
that itself proved the adoption. Besides, other documents sought to be
filed, also proved the adoption. Whereas, the learned Senior Counsel
appearing for the respondents 1 and 5 to 10 contended that absolutely
there are no pleadings whatsoever in the plaint, as to the nature of the
adoption, ceremonies, etc. Besides, genealogical tree filed along with
the plaint clearly indicates that the so-called alleged adoptive father is
having a grandson. Such being the position, even if the additional
documents are taken on record, adoption is invalid as per the Hindu
Adoption and SectionMaintenance Act and that cannot be a valid adoption,
even as per the old Act also. Such adoption is illegal and is not valid in
the eye of law.
8.Further, it is the contention of the learned Senior Counsel
appearing for the respondents 1 and 5 to 10 that the so-called adoptive
father had filed a suit in the year 1946 under Ex.B.1, wherein it was
clearly admitted that the entire properties were already divided, except
some shares in Madurai Meenakshi Mills and Trichur Sitaram Spinning
and Weaving Mills, which were allotted to the adoptive father of the
plaintiff. Therefore, the question of claiming any share does not arise at
all, hence, prayed for dismissal of the appeal.
9.I have perused the entire plaint and pleadings and I answer
the substantial question of law.
10.In respect of the additional documents, now sought to be
filed, additional document No.1 is the certified copy of the sale deed
executed in the year 1985, wherein the plaintiff is shown as one of the
sons of Nachiappa Chettiar. Except that there are no other details with
regard to the adoption as mentioned in the document. Other documents
are the tax receipts issued by the local body and temples, wherein the
initial of the plaintiff shown as K.N. Before making out a case for
additional documents, the party seeking to produce additional evidence,
should establish that notwithstanding the exercise of due diligence,
such evidence was not within his knowledge or could not, after the
exercise of due diligence, be produced by him at the time when the
decree appealed against was passed.
11.Further, it is also to be established under Order 41 Rule 27
C.P.C., that his document was refused to admit by the trial Court.
Unless the ingredients set out are satisfied as a matter of right, the
additional documents cannot be received in the Second Appeal stage,
though the Court has power to receive the documents, which enables
the Court to render proper finding. When the documents sought to be
filed are perused, except the sale deed of the year 1985, mentioning the
plaintiff as one of the sons of the Natchippa Chettiar, no other particular
whatsoever has been mentioned about the adoption. Further, the nature
of ceremony, when the adoption took place, has not been found in the
documents. Even assuming that the additional documents sought to be
filed are relevant to draw inference and presumption as to the nature of
the adoption, it is well settled that the adoption has to be proved in the
manner known to law. The adoption cannot be accepted, merely, on the
basis of the inference.
12.Even in the entire plaint and pleadings, absolutely there is
no whisper as to the date of adoption, nature of the ceremony and
persons, before whom adoption is given and who has seen such
adoption and the year of the adoption. Except evasive pleadings that he
was adopted, there are no pleadings whatsoever in the plaint. Besides,
genealogical tree filed along with the plaint clearly indicates that the so-
called adoptive father is admittedly having living grandchild. Such
being the position, the adoption even assuming to be true, cannot be
valid in the eye of law, when the grandson is admittedly alive at the
relevant point of time. Such being the position, the reception of
additional documents will not serve any purpose and prove the
plaintiff’s case. Accordingly, the application filed for reception of
additional documents in M.P.(MD)No.1 of 2009, is rejected.
13.Now, with regard to the merits of the case, both the Courts
below found that the evidence adduced on the side of the plaintiff is not
established the factum of adoption. The suit itself filed in the capacity
of the adoptive son, claiming partition of the property. Ex.B.1 clearly
indicates that in the year 1946, the so-called adoptive father had stated
that the properties are divided in the family. Besides, the evidence
adduced on the side of the plaintiff will not prove any valid adoption.
Such being the position, the Courts below have rightly recorded the
finding and dismissed the case of the plaintiff. Accordingly, the
substantial question of law is answered against the appellants.
14.In the result, this Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
Index : Yes/No
Internet : Yes/No
1.The District Judge, Sivagangai.
2.The Subordinate Judge, Devakottai.
3.The Section Officer,
Madurai Bench of Madras High Court,
N.SATHISH KUMAR, J.
Judgment made in
S.A.(MD).No340 of 2008