S.A.(MD).No.294 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.02.2020
CORAM :
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.(MD).No.294 of 2009
1.Selvaraj
2.Nithya ..Appellants/Appellants/Defendants
Vs.
1.Kanagammal ..Respondent /Respondent/Plaintiff
2.Palaniyappan ..2nd Respondent
2nd Respondent impleaded as party respondent vide
order dated 23.04.2012 made in MP(MD)No.1 of 2012
PRAYER : Second Appeal is filed under Section 100 of Civil Procedure
Code, against the Judgment and Decree in A.S. No.5 of 2008 on the
file of the Subordinate Court, Pudukottai, dated 30.01.2009 confirming
the Judgment and Decree in O.S.No.93 of 2002 dated 28.09.2007 on
the file of the District Munsif cum Judicial Magistrate Court,
Thirumayam.
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S.A.(MD).No.294 of 2009
For Appellants : Mr.M.Vallinayagam,
Senior Counsel
for Mr.A.Arunprasad
For 1st Respondent : Mr.S.Parthasarathy,
Senior Counsel
for Mr.R.Devaraj
For 2nd Respondent : Mr.T.Pon Ramkumar
—-
JUDGMENT
Aggrieved over the concurrent findings of the Courts
below, the present Second appeal has been filed.
2.The parties are arrayed in the Second Appeal, as per
their own ranking before the Trial Court.
3.The brief facts leading to the filing of the suit are as
follows:
The suit property originally belonged to one Palaniyandi
and his wife Chinnammal. They died leaving behind their two
daughters, namely Packiyathammal and Chittammal. The plaintiff
Kanagammal is the daughter of Packiyathammal and Chittammal had
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one son, namely, Ramamoorthy. The said Ramamoorthy died
issueless and his wife also died. Therefore, the plaintiff is in
possession and enjoyment of the suit property and the name has been
mutated in the revenue records. Since the plaintiff is residing at
Manapparai, the defendants, in order to grab the property, had made
an attempt to encroach the property on 10.11.2001, which was
thwarted by the plaintiff. Hence, the suit has been filed for declaration
and for permanent injunction.
4. It is the contention of the first defendant that the plaintiff
is not the legal heir of the original owners. The second defendant
Nithya was given in adoption to one Ramamoorthy on 11.03.1984 as
per the custom. Thereafter, the adoption was also registered on
28.03.1984. From the date of adoption, the second defendant has
become the daughter of Ramamoorthy and she is in enjoyment of the
property. Packiyathammal and Chittammal are not the legal heirs of
Palaniyandi and Chinnammal. Hence, the contention that the property
was jointly enjoyed by the plaintiff and Ramamoorthy was also denied.
The second defendant, the adopted daughter has taken a stand that
she was given in adoption on 11.03.1984 and the same was registered
on 28.03.1984. It is the further contention that the plaintiff has no right
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in the suit property and the defendants are enjoying the property.
Hence, he prayed for dismissal of the suit.
5.Based on the above pleadings, the Trial Court framed as
many as six issues. The parties went on trial. On the side of the
plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.7 were
marked. On the side of the defendants, D.W.1 and D.W.2 were
examined and Exs.B.1 to B.11 were marked.
6.Based on the evidence and materials, the trial Court
decreed the suit in favour of the plaintiff. The First Appellate Court also
confirmed the findings of the Trial Court. Aggrieved over the same, the
present Second Appeal came to be filed.
7.While admitting the Second Appeal, the following
substantial questions of law have been framed for consideration :-
“1. Whether the findings of the Courts
below are vitiated by its failure to consider
the evidence of D.W.1 and D.W.2
establishing the registered Adoption Deed
Ex.B.1 in the absence of any contra
evidence besides the genuineness of4/16
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S.A.(MD).No.294 of 2009Ex.B.1 was not disputed by any oral and
documentary evidence ?
2) Whether the Courts below are right in
not adverting to Section 50 of the
Evidence Act evidencing the relationship
between the parties and treating the
second appellant as an adopted daughter
of the deceased Ramamoorthy as well as
the discharging of initial burden of proving
adoption ?
8.The learned Senior Counsel appearing for the appellants
vehemently contended that the plaintiff has not established the
relationship with the original owners. The plaintiff is not at all residing
in the present address and she is residing in some other place and the
suit was filed only to grab the property. The plaintiff is not the daughter
of Packiyathammal, as pleaded in the plaint. The plaint itself clearly
shows that the plaintiff has no relationship with the original owners
Palaniyandi and Chinnammal. Therefore, the plaintiff failed to prove
the relationship with the original owners and as such, she cannot
maintain the suit for declaration and injunction.
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9.It is the further contention that the defendants have taken
a specific stand that the second defendant was given in adoption to
Ramamoorthy on 11.03.1984 and the Adoption Deed was also
registered on 28.03.1984, Ex.B.1 was filed in this regard. The Courts
below have not even considered the statutory presumption available to
the document, as per Section 16 of the Hindu Adoption and
Maintenance Act. There is no evidence whatsoever available on record
to show that the plaintiff has rebutted the legal presumption. Ex.B.10-
Invitation Card printed by Ramamoorthy, the adoptive father of D.W.2,
was not even denied either in evidence or during cross-examination.
This fact clearly established the adoption. When adoption is proved in
the manner known to law, the Courts below holding that the adoption
has not been proved is not in accordance with law. The Courts below
shifted the burden on the defendants rather than the plaintiff, to
disprove the adoption. Hence, he prayed for allowing the second
appeal.
10.Whereas, the learned Senior Counsel appearing for the
first respondent would submit that the evidence of D.W.1 and D.W2
would show that adoption is not proved by producing relevant
materials. The Courts below have rightly held that the adoption has not
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been proved. He would further submit that the ceremonies for the
adoption has not been established. To rebut the legal presumption,
there need not be any direct evidence and even preponderance of
probabilities available on record are sufficient to discharge the burden.
The evidence of D.W.1 and D.W.2 clearly show that they are
ignorance of the properties and D.W.2 evidence indicates that she has
studied upto 12th standard in some other place. It clearly shows that
the adoption could not have been registered, as contended by the
defendants. Hence, it is submitted that the Judgment of the Courts
below need not be interfered with. Hence, he prayed for dismissal of
the second appeal.
11.The learned Senior Counsel appearing for the first
respondent, in support of his submissions, has relied on the judgment
reported in 2002(2) CTC 173 in the case of Jai Singh Vs. Shakuntala.
12. I have perused the entire materials.
13.The suit is filed by the plaintiff only to establish her
rights in respect of the entire suit property on the ground that the
plaintiff has succeeded the suit property as the legal heir of the original
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owners, namely, Palaniyandi and Chinnammal. It is the case of the
plaintiff in the plaint that Palaniyandi and Chinnammal were the original
owners. Ex.A.5 and Ex.A.6 were filed to show that the properties were
originally purchased in the name of Palaniyandi. Ex.A.5 filed by the
plaintiff itself clearly indicates that the grandmother’s name of the
plaintiff is shown as ‘Muthammal’, whereas the specific case of the
plaintiff is that grandmother’s name is Chinnammal in the plaint. Even
in the evidence, when a specific suggestion was put to the plaintiff that
her mother is not born to Palaniyandi and Chinnammal, it is specifically
denied by P.W.1. Be that as it may, the plaint proceeded as if after the
death of her cousin brother namely, Ramamoorthy, the property was
enjoyed absolutely by the plaintiff and the revenue records have been
changed in her name instead of their names.
14.When the evidence of P.W.1 carefully seen in its
entirety, it is seen that she does not even know the details of the
property. Non-disclosure of the nature of the property in respect of
which the relief is sought for, itself shows the plaintiff’s ignorance over
the property. If really the plaintiff was continuously enjoying the
property, as stated by her in the plaint, in her evidence as P.W.1,
normally, she would have presented the details, like nature of the
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property and details of the property, whereas, the evidence of P.W.1 is
otherwise. On perusing her evidence in its entirety, the same indicates
that she is totally unaware of the details of the property. Such evidence
is perused and considered along with the other circumstances namely,
the discrepancies in the genealogy set out in the plaint and the specific
evidence denying the suggestion clearly, probablise the case of the
defendants that the plaintiff has not established the legal heir properly.
It is the specific case of the defendants that the second defendant was
given in adoption in the year 1984 i.e. on 11.03.1984. After observing
all the customary rights prevailing in the community, adoption has
been registered on 28.03.1984. Ex.B.1 registered Adoption Deed was
filed in this regard. A careful perusal of Ex.B.1 would go to show that
on 11.03.1984 adoption has been given by the natural parents to one
Ramamoorthy. The natural father of Nithya was examined as D.W.1,
who is the competent person to speak about the giving her daughter in
adoption and D.W.2, who was the adopted daughter, has also given
evidence to prove the adoption, Ex.B.1 was also filed. In-fact, in the
said registered document, stamp papers were also obtained in the
name of ‘Ramamoorthy’.
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15.It is a well settled law that any document is registered,
there is a presumption that the registration is done by the authorities
properly and all the Officials act done properly. As such, when the
registered document is filed before the Court, it has to be presumed
that the registration was done properly.
16. In such view of the matter, when the deed of Adoption
is produced before this Court, a statutory presumption come in favour
of adoption under Section 16 of Hindu Adoption and Maintenance Act.
If once such registered document is produced, the Court shall presume
that the adoption has been made in compliance with the provisions of
this Act, unless and until it is disproved. Therefore, the statutory
presumption is in favour of the defendants, when the registered
document of adoption is produced. Then, the burden lies on the other
side to disprove the factum of adoption. Of course, such statutory
presumption is rebuttable one.
17. It is also a well settled law that to rebut the legal
presumption, there need not be any direct evidence. Even, evidence or
probabilities or circumstances would suffice to dislodge a legal
presumption. But, the entire burden lies on the plaintiff to bring out the
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materials or probabilities to discharge the legal presumption. On a
perusal of the entire evidence of P.W.1 and P.W.2, this Court do not
find any material except the denial of the documents, no circumstances
or probabilities are brought on record to discharge the legal
presumption.
18.The specific case of D.W.2 is that she was always
treated as an adoptive daughter and Ex.B.10 was printed by his
adoptive father. Ex.B.10 was marked by D.W.2 and in the entire cross
examination of D.W.2, not even a suggestion was put by the plaintiff
denying the document. It is also to be noted that when the evidence
given in particular fact with regard to adoption and spoken in chief
examination and the same is not denied. Such evidence and
document which are not denied shall be deemed to be admitted by the
plaintiff.
19.The Revenue records Exs.B.2 to B.9 and B.11 clearly
indicate that the revenue records have been changed in the name of
the defendants, whereas, on the plaintiff’s side, except Ex.A.6 legal heir
certificate, no other documents were filed to prove her legal heirship.
Exs.A.1 to Ex.A.5 are only the certified copy of the sale deeds. Ex.A.7
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chitta has been obtained in the year 2006, during the pendency of the
proceedings. If really the plaintiff is all along in possession of the
property by way of succession and inheritance, her name should be
found place in the revenue records or in some other documents. The
manner in which Ex.A.7 is obtained after the suit, clearly indicates that
the plaintiff is not in possession of the property.
20. Further, as discussed above, the relationship of the
plaintiff with Palaniyandi is also not established. The discrepancies as
to the name of wife of Palaniyandi in the plaint and Ex.A.5 is also not
clarified and established by the plaintiff and non-filing of any other
documents to show that the plaintiff is in possession of the property by
way of succession or inheritance and clearly probablise the defence
case that the plaintiff has no title over the property and in fact she is not
the legal heir of the original owners. Exs.A.1 to A.6 are also certified
copies of the documents. If really the plaintiff is coming from the same
family, the original title deeds must be with the plaintiff. These are all
the facts which cannot be ignored. Those documents also obtained
only in the year 1997 i.e. on 04.08.1997 just few years before filing of
the suit. The suit has been filed in the year 2001. All these facts
clearly probablise the defendants’ case. D.W.1, who is the natural
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father of D.W.2, has clearly spoken about giving in adoption of D.W.2
and he is the competent person and special means of knowledge about
the adoption and he was a party to the said document. Therefore, his
evidence is relevant not only to prove the relationship of one person
with other under Section 50 of Indian Evidence Act, since he has a
direct knowledge of the adoption.
21.In Jai Singh Vs. Shakuntala reported in 2002(2) CTC
173, the Hon’ble Supreme Court has held that the Court is not
precluded from looking into evidence produced contrary to adoption
and mere compliance with Section 16 of Act does not dispense with
further requirement of acceptance of such adoption.
22. Absolutely, there is no dispute with regard to the above
judgment. Whereas, in this case, the plaintiff’s relationship itself has
not been established. Further, D.W.1, who has a special knowledge
about the adoption, has specifically spoken about the same and as
discussed above, Ex.B.10 is not denied and further, there is no material
available on record to dislodge the legal presumption attached to the
Registered Adoption Deed.
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23. In Mst.Deu and others Vs. Laxmi Narayan and others
reported in (1998) 8 Supreme Court Cases 701, the Hon’ble Supreme
Court has held in paragraph No.3 as follows :
“3. In view of Section 16 aforesaid Whenever any
document registered under any law for the time
being in force is produced before any court
purporting to record an adoption made and is
signed by the persons mentioned therein, the
Court shall presume that the adoption has been
made in compliance with the provisions of the
said Act unless and until it is disproved.
According to us, it was not open to the
defendants of the said suit for partition to
collaterally challenge the said registered deed of
partition. In view of Section 16 of the aforesaid
Act it was open to them to disprove such deed of
adoption but for that they had to take
independent proceeding. The High Court was
fully justified in directing that the respondent be
substituted in place of Smt.Phulla on the basis of
the registered deed of adoption produced before
the Court.”
Having regard to the above judgment and having found that no
materials whatsoever to dislodge the legal presumption, the plaintiff
cannot succeed in her attempt to prove the title to the property.
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24. In such view of the matter, this Court is of the view that
the Courts below have not appreciated the evidence in proper
perspective and erroneously taken an incorrect view. Accordingly, all
the substantial questions of law are answered in favour of the
appellants.
25. In the result, the second appeal is allowed and the
Judgment and decree of both the Courts below are set aside and the
suit in O.S.No.93 of 2002 is dismissed. However, there shall be no
order as to costs.
17.02.2020.
Internet : Yes/No
Index : Yes/No
rm
To
1.The Subordinate Court,
Pudukottai.
2.The District Munsif cum Judicial Magistrate Court,
Thirumayam.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD).No.294 of 2009
N.SATHISH KUMAR, J.
rm
Judgment in
S.A.(MD).No.294 of 2009
17.02.2020
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