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Pappathiyammal vs Jothi on 28 February, 2020

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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S.A.No.1249 of 2005

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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S.A.No.1249 of 2005

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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S.A.No.1249 of 2005

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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S.A.No.1249 of 2005

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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