S.A.No.1249 of 2005
THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 13.02.2020
Date of Verdict : 28.02.2020
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.1249 of 2005
C.M.P.No.17070 of 2005
Pappathiyammal
W/o. Govindasamy …Appellant
Vs.
1. Jothi
2. The Block Development Officer (Regular)
Panchayath Union, Alangayam,
Vellore District.
3. The Division Delopment Officer,
Tirupattur,
Vellore District.
4. The Thasildhar,
Taluk Office,
Vaniyambadi.
5. The State of Tamil Nadu
Rep. by The District Collector,
Vellore District,
Vellore. …Respondents
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S.A.No.1249 of 2005
Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure
Code against the judgment and decree dated 30.04.2004 made in A.S.No.22
of 2003 on the file of the Subordinate Court, Tirupattur, confirming the
judgment and decree dated 20.01.2003 made in O.S.No.1448 of 1995 on the
file of the District Munsif-cum-Judicial Magistrate Court, Vaniyambadi.
For Appellant : Mr.V.Jeevagiridharan
For Respondents
R1 : Note ready in notice
For R2 to R5 : Mr.S.Jaganathan
Government Advcoate (CS)
JUDGMENT
This second appeal is directed as against the judgment and
decree dated 30.04.2004 made in A.S.No.22 of 2003 on the file of the
Subordinate Court, Tirupattur, confirming the judgment and decree dated
20.01.2003 made in O.S.No.1448 of 1995 on the file of the District Munsif
-cum-Judicial Magistrate Court, Vaniyambadi.
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial Court.
3. The case of the plaintiff in brief is as follows :-
3.1. The suit is filed for declaration declaring that the plaintiff is
the legal heir of the deceased Ponnusamy. One Ponnusamy was working in
Alangayam Panchayath Union and while he was in service, died on
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S.A.No.1249 of 2005
08.06.1989. The plaintiff is his own sister. The said Ponnusamy did not
marry anybody and his parents and another brother were already died.
Except the plaintiff, no other legal heir for her deceased brother
Ponnusamy. While he was residing at Alangayam, he used to visit the first
defendant’s house. The first defendant also unmarried. Utilizing the
situation, the first defendant extracted all the income from the said
Ponnusamy for her family expenses. Thereafter, the said Ponnusamy fell ill
and died on 08.06.1989. The plaintiff had done all his last rites of her
brother.
3.2. Further the first defendant belonged to some other community
and she did not get marry. She was also working in the Thirupattur Co-
operative Registrar office. The first defendant amended the service register
of the said Ponnusamy and after his death, the first defendant applied legal
heir certificate before the Thasildhar, Vaniyambadi, by stating that she was
adopted daughter of the said Ponnusamy and obtained legal heir certificate.
Thereafter, she sent representation to the authority concern to receive
terminal benefits of the said Ponnusamy from the defendants 2 3. Hence
the suit for declaration declaring that the plaintiff is the legal heir of the
deceased Ponnusamy.
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4. Resisting the same, the first defendant filed written statement
stating that all the avernments made in the plaint is false and frivolous. The
deceased Ponnusamy was living with the first defendant. In fact, 35 years
before, he adopted the first defendant as his daughter. While he fell in ill,
the first defendant only had taken care of him and admitted in so many
hospitals and treated him. Unfortunately, the treatment failed and he died.
In fact, the first defendant had done all his last rites and customs. Initially,
the said Ponnusamy entered his mother name as his nominee and after the
death of his mother, the first defendant’s name had been entered as his
nominee in the service register and PF register. After his death, the first
defendant and also the plaintiff applied for legal heir certificate. The
Thasildhar, Vaniyambadi, conducted detailed enquiry and issued legal heir
certificate in favour of the first defendant. The first defendant also received
a sum of Rs.1,000/- to meet out the expenditure at the time of performing
the last rites of the deceased Ponnusamy. Now only to extract money from
the first defendant, the present suit has been filed and prayed for dismissal
of the suit.
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S.A.No.1249 of 2005
5. The second defendant also filed separate written statement
stating that one Ponnusamy was working as Peon at Alangayam Panchayat
Union and he died on 08.06.1989, while he was in service. After his death,
according to the service register, as a nominee, the first defendant received
a sum of Rs.1,000/- for the funeral expenses of the deceased Ponnusamy.
He nominated the first defendant to receive all his death benefits in the
service register. The said Ponnusamy categorically mentioned that the first
defendant is his adopted daughter in the service register. Based on the
service register, the Thasildhar, Vaniyambadi, also issued legal heir
certificate to the first defendant as she is the adopted daughter of the
deceased Ponnusamy. They are also ready and willing to give gratuity,
provident fund and other benefits due to the deceased Ponnusamy to the
persons whom this Court directs as legal heir.
6. On the side of the plaintiff, he examined P.W.1 to P.W.3 and
were marked Ex.A.1 to Ex.A.3. On the side of the defendants, they
examined D.W.1 to D.W.4 and were marked Ex.B.1 to Ex.B.9. On perusal
of the material produced on record and on considering both the oral and
documentary evidence adduced by the respective parties and also the
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S.A.No.1249 of 2005
submissions made, the trial Court dismissed the suit filed by the plaintiff.
Aggrieved by the same, the plaintiff preferred an appeal suit in A.S.No. 22
of 2003 and the same was also dismissed by the first appellate Court by
confirming the judgment and decreed passed by the trial Court. Aggrieved
by the same, the plaintiff preferred this present second appeal.
7. At the time of admission of this second appeal on 08.12.2005,
the following substantial questions of law were formulated for
consideration:-
“1. Whether the adoption is valid under the
Provisions of the Hindu Adoptions and
Maintenance Act, 1956?
2. Whether the adoption is valid under
Section 11(iii) of the Hindu Adoptions
Maintenance Act, 1956, when the age differnce
between the 1st defendant and her adopted father
is less than 21 years?
3. Whether the adoption of the 1st
defendant is valid under Section 9(2) of the Hindu
Adoptions Maintenance Act, 1956, when the
consent of her mother to give adopting was not
proved?
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S.A.No.1249 of 2005
4. Whether the 1st defendant nomination by
Late Ponnusamy in the Service record is tenable
in view of Rule 45 of the Tamil Nadu Pension
Rules, 1978?”
8. The learned counsel appearing for the plaintiff/appellant
submitted that the first defendant is a foster daughter of the said Ponnusamy
and he never adopted the first defendant as his daughter. The first defendant
did not produce any document to show that the deceased Ponnusamy
adopted her as his daughter. Whereas the plaintiff is own sister of the
deceased Ponnusamy and admittedly except the plaintiff no one is alive to
claim as legal heir of the deceased Ponnusamy. Further the plaintiff is also a
widow and she is the only legal heir alive to the deceased Ponnusamy.
Under Section 17 of the Hindu Adoption and Maintenance Act, the foster
daughter is not a legal heir. Further under Section 45 Sub Section 5 of the
Tamil Nadu Pension Rule, 1978, categorically defined who are eligible to
be declared as nominee, in which no where mentioned about the foster
daughter. Therefore, the first defendant is not at all the legal heir of the
deceased Ponnusamy and she is not entitled for any terminal benefits of the
deceased Ponnusamy and prayed for decreed the suit.
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9. Heard Mr.V.Jeevagiridharan, learned counsel appearing for the
appellant/plaintiff and Mr.S.Jaganathan, learned Government Advocate
appearing for the respondents 2 to 5/defendants 2 to 5.
10. Admittedly, the plaintiff is the sister of the deceased
Ponnusamy. While he was in service as Peon in Alangayam Panchayath
Union, he died on 08.06.1989. Even according to the plaintiff, he stayed at
Alangayam and he used to visit the first defendant’s house. The plaintiff
marked the voters list and the death certificate of the deceased Ponnusamy
as Ex.A.1 to Ex.A.3. Except the same, no other document was marked to
declare her as legal heir of the deceased Ponnusamy. Admittedly, the
deceased Ponnusamy and the first defendant belonged to different
community. The plaintiff examined her daughter as P.W.2 and she deposed
that the plaintiff had taken care of the deceased Ponnusamy, while he was
under treatment. She only had done the last rites of the deceased
Ponnusamy and except the plaintiff, no one is there to claim as legal heir of
the deceased Ponnusamy. Even then, the plaintiff failed to produce any
document to prove her contention that the plaintiff had taken care of the
deceased Ponnusamy, while he was bed-ridden.
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S.A.No.1249 of 2005
11. Whereas, the first defendant deposed that the said Ponnusamy
is her adopted father. While he was alive, the first defendant’s name was
entered as nominee in the service register and other documents. He
categorically nominated the first defendant as his adopted daughter. The
deceased Ponnusamy only maintained her and taken care of her studies and
other maintenances. Before his death, he was fell in ill for the past three
years and he had been taken treatment. All along, the first defendant had
taken care of him. Unfortunately, he died and the funeral expenses was
received by her from the department. All the medical expenditure born out
by the first respondent and to prove the same, she marked Ex.D.1 to Ex.D.7,
the medical bills incurred by her for the treatment of the deceased
Ponnusamy.
12. After his death, the first defendant applied for legal heir
certificate, before the Tashildhar, Vaniyambadi. In fact, the plaintiff also
applied for legal heir certificate and after conducting due enquiry by the
Tashildhar, Vaniyambadi, the legal heir certificate was issued in favour of
the first defendant that she is the only legal heir of the deceased
Ponnusamy. The legal heir certificate was marked as Ex.B.8. Considering
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the above documents both the Courts below concluded that the first
defendant is the only legal heir of the deceased Ponnusamy.
13. In the present second appeal, while arguments, the learned
counsel appearing for the plaintiff took a specific plea that the first
defendant is only a foster daughter and hence she cannot claim any terminal
benefits of the said Ponnusamy as adopted daughter under Section 45 Sub
Section 5 of the Tamil Nadu Pension Rule, 1978. But the plaintiff never
pleaded about the first defendant’s dis-entitlement as nominee, since she is
not an adopted daughter of the deceased Ponnusamy and she is only a foster
daughter. Therefore, it cannot be considered now, that too without any plea.
14. In view of the above discussion, this Court does not find any
valid reason to interfere with the reasonings and findings rendered by the
Courts below, as such the Courts below have analyzed the evidences both
the documentary and oral in detail, adduced by the parties and by giving
cogent reasons, concluded rightly and dismissed the suit filed by the
plaintiff. Therefore, this Court is of the considered opinion that no
substantial question of law involved in this appeal. Be that as it may, all the
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substantial questions of law formulated by this Court are answered in
favour of the first defendant and as against the plaintiff.
15. In fine, the second appeal stands dismissed by confirming the
judgment and decree passed by the Courts below. Consequently, connected
miscellaneous petition is closed. There is no order as to costs.
28.02.2020
Index : Yes/No
Internet : Yes/No
Speaking order/Non-speaking order
rts
To
1. The Subordinate Court,
Tirupattur.
2. The District Munsif
-cum-Judicial Magistrate,
Vaniyambadi.
3. The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
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S.A.No.1249 of 2005
G.K.ILANTHIRAIYAN, J.
rts
Judgment
in S.A.No.1249 of 2005
C.M.P.No.17070 of 2005
28.02.2020
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