K.R.

Sivasankar vs /1St on 6 December, 2007

Madras High Court K.R.Sivasankar vs /1St on 6 December, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/12/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD) No.251 of 2006 and S.A.(MD)No.542 of 2006 and Cross Objection SR.No.20509 of 2006 C.M.A.(MD) No.251 of 2006 K.R.Sivasankar ... Appellant /1st Respondent/ Plaintiff Vs 1.K.R.Ramamoorty ... 1st Respondent /Appellant/ 1st Defendant 2.M.Natarajan 3.K.Murugan 4.S.Gowri ... Respondents 2 - 4 /Respondents 2 -4/ Defendants 2 - 4 5.G.Karthikeyan 6.The State Bank of India, through its Branch Manager,
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K.R.Sivasankar vs /1St on 6 December, 2007

Kasimedu Branch, Madurai. ... Respondents 5 & 6 (R5 and R6 are impleaded as proposed respondents as per order of this Court dated 29.08.2007 made in M.P(MD)No.1 of 2007.) Prayer in C.M.A.No.251 of 2006: Appeal filed under Order 43 Rule 1(v) of Civil Procedure Code, against the judgment and decree dated 05.12.2005 passed by the learned Principal District Judge, Madurai, in A.S.No.36 of 2005 modifying the judgment and decree dated 13.01.2005 in O.S.No.1078 of 1994 on the file of the I Additional Subordinate Judge, Madurai. S.A.(MD)No.542 of 2006 K.R.Sivasankar .. Appellant/ 1st Respondent/ Plaintiff Vs 1.K.R.Ramamoorty .. 1st Respondent Appellant/ 1st Defendant 2.M.Natarajan 3.K.Murugan 4.S.Gowri .. Respondents 2 - 4/ Respondents 2 -4/ Defendants 2 - 4 Prayer in S.A.No.542 of 2006: Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 05.12.2005 passed by the learned Principal District Judge, Madurai, in A.S.No.36 of 2005 modifying the judgment and decree dated 13.01.2005 in O.S.No.1078 of 1994 on the file of the I Additional Subordinate Judge, Madurai. !For Appellant ... Mr.M.N.Sankaran ^For Respondents ... Mr.M.S.Balasubramania Iyer for R.1 Mr.M.Vallinayagam for R.2 and R.3
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K.R.Sivasankar vs /1St on 6 December, 2007

Mr.E.N.Venkatesan for R.4 :COMMON JUDGMENT C.M.A.No.251 of 2006 and S.A.No.542 of 2006 are taken up together, as they are inter-linked with each other and emerged out of one and the same judgment passed by the Principal District Judge, Madurai, in A.S.No.36 of 2005, dated 05.12.2005. 2. Both the Courts below detailed and delineated the relevant facts as found set out in the pleadings of the parties. 3. However, for better appreciation in view of the intricate law points touching upon the facts involved in this case, it is just and necessary to broadly but briefly, precisely but narratively, set out the facts thus. 4. The litigation is mainly between the father and the son. 5. The suit property and the other properties originally belonged to one K.S.Venkatakrishna Iyer who died intestate around the year 1952, leaving behind his three sons namely K.V.Rengachary, K.V.Sarangapani and K.V.Narayanan Iyer, who got the properties partitioned as per partition deed dated 28.11.1938; a schedule property mentioned therein was alloted to the share of K.V.Rengachary who had two sons namely the first defendant K.R.Ramamoorthy and K.R.Rajan. After the death of Rengachary, the said A Schedule property of the partition deed dated 28.11.1938, was divided between the first defendant herein and his brother Rajan and in that, the suit properties were alloted to the share of the first defendant, whose only son namely Sivasankar filed O.S.No.1078 of 1994 in the Court of the I Additional Subordinate Judge, Madurai. Initially, the suit was instituted by the son as against the father only and subsequently, the defendants 2 to 4, the purchasers of various items of the suit properties from the first defendant, were impleaded. 6. The properties described in the Schedule of the plaint indubitably and indisputably are the ancestral properties, over which there is no controversy. The plaintiff and his father, the first defendant are entitled to equal share in it. Despite demands made by the plaintiff, the first defendant has not come forward for amicable partition and hence, the suit. 7. Per contra, denying and refuting, challenging and impugning the right of the plaintiff to claim partition, the first defendant filed the written statement setting out the averments inter alia thus: The plaintiff even though happened to be the first defendant's biological son, he was given in adoption to one Somalinga S.Viswanathan as early as in the year 1954, when the plaintiff was only four years old. As such, the plaintiff can never be treated as co-parcener having any right in the suit property which are in the exclusive enjoyment and possession of the first defendant. Accordingly, he prayed for dismissal of the suit. 8. The plaintiff filed the reply statement denying the alleged adoption and other allegations in the written statement by setting out the additional facts as under: The plaintiff's mother and the said Somalinga S.Viswanathan's wife were sanguine sisters and the plaintiff was brought up by Somalinga S.Viswanathan, but not as his adopted son. No ceremony relating to the alleged adoption was performed; whereas in the recent family arrangement deed dated 19.07.1993, the first defendant himself signed it highlighting that the plaintiff happens to be his son entitled to a share in the suit properties. 9. Per contra, the first defendant filed an additional written statement alleging that among the suit properties, a vacant site of 4 1/4 cents in Avaniapuram in Plot No.6 of S.No.100/1 was not included. Somalinga S.Viswanathan was a multi-millionaire at the time of taking the plaintiff in adoption as he had no child of his own.
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K.R.Sivasankar vs /1St on 6 December, 2007

10. He also set out various facts which according to him, would show that the plaintiff is the adopted son of S.S.Viswanathan. Initially, the plaintiff impleaded only his father K.R.Ramamoorthy. Subsequently, the defendants 2 to 4 were added as they purchased the suit property from the first defendant and acquired interest over those properties and they also filed separately written statements contending that the plaintiff is only the adopted son of S.S.Viswanathan and he is having no right over the suit properties purchased by them. The first defendant also contended that the suit was bad for want of adding his two daughters as parties to the proceedings. 11. During trial, before the trial Court, the plaintiff examined himself as P.W.1 and Exs.A.1 to A.44 were marked. The first defendant examined himself as D.W.1 and D.W.2 to D.W.6 were also examined. Exs.B.1 to B.55 were marked on the side of the defendants. 12. The trial Court ultimately decreed the suit holding that the plaintiff is entitled to half share and accordingly, ordered partition by finding that the plaintiff was not the adopted son of S.S.Viswanathan. 13. Being aggrieved by and dissatisfied with, such judgment and decree of the trial Court, as many as four appeals were filed; A.S.No.27 of 2005 by the fourth defendant, Dr.S.Gowri, A.S.No.28 of 2005 by the second defendant M.Natarajan, A.S.No.30 of 2005 by the third defendant K.Murugan and A.S.No.36 of 2005 by the first defendant K.R.Ramamoorthy, respectively. 14. The plaintiff also filed Cross Appeal in A.S.No.36 of 2005 as against the rejection of the claim of the plaintiff for mesne profits. 15. The first appellate Court by its common judgment held that the plaintiff is the adopted son of S.S.Viswanathan; however, the plaintiff is entitled to a share in the suit property; the said two sisters of the plaintiff should have been added as parties in view of the recent Central Amendment Act No.39 of 2005 to the Hindu Succession Act, 1956, the defendants 2 to 4 are the bona fide purchasers for value and they are entitled to the first defendant's share at the time of physical partition during the final decree proceedings. Ultimately, the first appellate Court remanded the matter to the trial Court for adding the two sisters of the plaintiff and thereafter to decide on the respective shares of the co-parceners. 16. Challenging the common judgments and decrees of the first appellate Court, S.A.No.542 of 2006 and C.M.A.No.521 of 2006 have been filed by the plaintiff and the first defendant has preferred the Cross Appeal. 17. The second appeal is focussed as against the finding of the first appellate Court that the plaintiff is the adopted son of the said S.S.Viswanathan and the related facts; whereas the Civil Miscellaneous Appeal was filed as against the order of remand of the first appellate Court for adding the said two sisters of the plaintiff and proceed further with the suit. 18. The gist and kernel of the grounds of appeal as found set out in the second appeal as well as in the Civil Miscellaneous Appeal by the plaintiff would run thus: Oblivious of the evidence both oral and documentary placed before the first appellate Court relating to highlighting the falsity of adoption, the first appellate Court erroneously held as though the plaintiff is the adopted son of S.S.Viswanathan. The first appellate Court failed to take into consideration the family arrangement, Ex.A.23, dated 19.07.1993 and Exs.A.3 to A.14 wherein the first defendant candidly and categorically admitted the status of the plaintiff as one that of his son. The first appellate Court also has not considered the falsity of D.W.3's evidence. The first appellate Court also failed to consider that if really, adoption had taken place as per Sasthric rites by performing the ceremonies, the near relatives namely K.N.Srinivasan, K.R.Rajan and R.G.Kumarendran must be able to speak about it, but they have not been examined before the Court.
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K.R.Sivasankar vs /1St on 6 December, 2007

19. The first appellate Court simply carried away by the use of the initials 'S.V' before the name of the plaintiff and those facts alone would not constitute evidence for proving adoption. Overlooking the fact that the initial 'S.V' preceded the names of the plaintiff and his sister, because they were brought up in the house of S.S.Viswanathan at Bangalore and that he got them admitted in school, the first appellate Court suo motu took into consideration the recent amendment to the Hindu Succession Act and simply remanded the matter so as to implead the two sisters of the plaintiff as parties to the suit, ignoring the fact that the Tamil Nadu Amendment Act 1 of 1990 which contemplates that only the unmarried daughters are entitled to a share and not the married daughters as the ones referred to in this case. Admittedly, the said two daughters of the first defendant got married long prior to the commencement of the said Amendment Act 1 of 1990 amending the Hindu Succession Act, 1956. Accordingly, the appellant/plaintiff prayed for setting aside the judgment and decree of the first appellate Court and restoring the decree of the trial Court in ordering partition and for allotment of half share in the suit properties in favour of the plaintiff. 20. The following substantial questions of law were framed by my learned Predecessor while admitting S.A.No.542 of 2006: "(a) Whether factum of adoption as pleaded by the first respondent has been established? (b) Whether in the partition suit filed by the appellant against the father (the first respondent), the daughters are necessary parties? (c) Whether the benefits of the Hindu Succession (Amendment) Act 1 of 1990 are available to the daughters of the first respondent married before 25.03.1989?" 21. The question of law framed by this Court in C.M.A.No.251 of 2006 would run thus: "The point to be decided in this Civil Miscellaneous Appeal is as to whether the judgment of the first appellate Court in remanding the matter to the trial Court for impleading two sisters of the plaintiff and for determining the shares of the respective co-sharers is tenable?" 22. In my opinion, considering the grounds of second appeal and the cross appeal, the substantial questions of law, could be highlighted thus: (i) Whether the first appellate Court was justified in reversing the trial Court's finding that there was no adoption of the plaintiff by S.S.Viswanathan by re-appreciating the evidence adduced on the defendant's side and that too in the absence of three near relatives having been examined before the Court and also in ignoring the admissions made by the first defendant in various documents that the plaintiff is his son? (ii) Whether the Tamil Nadu Amendment Act 1 of 1990 is having overriding effect on Central Amendment Act 39 of 2005 in amending the Hindu Succession Act, 1956 and whether the Central Amendment Act 39 of 2005 is applicable to pending proceedings in the Court? (iii) Whether the adoption would deprive the adopted son from claiming any share in the co-parcenary property of his natural family? The Points: 23. The learned Counsel for the first defendant drawing the attention of this Court to the original plaint and written statements, would develop his argument to the effect that even in the plaint while it was originally typed, the plaintiff's initials were mentioned as 'S.V' and thereafter, it was corrected as 'K.R' so as to suit the plaintiff's contention that he was not the adopted son of S.S.Viswanathan. 24. The learned Counsel for the first defendant placing reliance on the original memorandum of first appeal, would argue that even in the first appeal filed by the plaintiff, his initial was first typed as 'S.V' and thereafter,
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K.R.Sivasankar vs /1St on 6 December, 2007

it was corrected. Whereas the learned Counsel for the plaintiff would correctly and convincingly submit that such typographical errors committed while typing and subsequent correction can never be relied on by the first defendant. One cannot try to make a mountain out of a mole hill. 25. Here, the substantial question of law involved is relating to adoption and the onus of proof obviously is on the person who pleads, namely the first defendant to prove that there was adoption of the plaintiff by S.S.Viswanathan. By no stretch of imagination, such typographical errors crept in the memorandum of appeal, could ever be taken as a decisive factors for deciding the question of adoption. Accordingly, no more elaboration is required in this regard. 26. The learned Counsel for the plaintiff would contend that the first appellate Court misdirected itself by giving undue importance to the use of initials 'S.V' before the name of the plaintiff. In fact, according to the plaintiff, such initial emerged while he was a young boy and that too when his foster-father S.S.Viswanathan who brought him up in Bangalore, got him admitted in school by furnishing such initials and that even the plaintiff's sister Thulasimani was brought up by S.S.Viswanathan who got her admitted by furnishing the initials 'S.V' before her name. The trial Court at paragraph No.15 considered this aspect correctly by discussing that the plaintiff's elder sister Thulasimani was also brought up by S.S.Viswanathan along with the plaintiff and her name also is prefixed by the initials 'S.V', as in the case of the plaintiff. It is therefore at once evident that the plaintiff and his elder sister were brought up together by the first defendant's co-brother S.S.Viswanathan at Bangalore, as he had no natural child of his own. The fact also remains that S.S.Viswanathan was a rich man at the relevant point of time. It appears, the first appellate Court misdirected itself by giving undue importance to the use of initial 'S.V' in the school records. If really, the plaintiff was the adopted son of S.S.Viswanathan. Because of that fact alone, before the plaintiff's name the initial 'S.V' had been used, then it should not have been used before the name of Thulasimani, the elder sister of the plaintiff, because of close relationship between the first defendant and the said S.S.Viswanathan and that the latter only had brought up Thulasimani as well as the plaintiff, the said S.S.Viswanathan had chosen to furnish the initial 'S.V' before the name of Thulasimani as well as the plaintiff. The matter would have been entirely different if the plaintiff was entrusted to a stranger to be brought up and if such stranger had caused the first letter of his family name as well as his name as initials of the boy. 27. The learned Counsel for the plaintiff would correctly argue that the first appellate Court without addressing itself to the pleas as found set out in the pleadings of the parties, assumed and presumed as though as per the Hindu Succession Amendment Act 39 of 2005, the daughters of the first defendant are having the right over the property and accordingly, remanded the matter to the trial Court without any basis. Whereas the learned Counsel for the first defendant would submit that the defence raised in the written statement that the suit is bad for non-joinder of the daughters of the first defendant as parties and that the first appellate Court in its judgment remarked that the trial Court did not frame any issue on that point. 28. At this juncture, it is worthwhile to analyse the legal position relating to application of Hindu Succession Amendment Act 39 of 2005, to the facts and circumstances of this case. 29. The learned Counsel for the plaintiff would correctly and legally submit that the recent Central Amendment Act 39 of 2005 is not applicable in view of the following decisions of the Honourable Apex Court: (i) Sheela Devi v. Lal Chand reported in (2006) 8 Supreme Court Cases 581. An excerpt from it, would run thus: "21. The Act indisputably would prevail over the old Hindu law. We may notice that Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The Succession having opened in 1989, evidently, the provisions of the Amendment Act, 2005 would have no
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K.R.Sivasankar vs /1St on 6 December, 2007

application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, the proviso appended to sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal viz., Lal Chand, was, thus, a coparcener. Section 6 is an exception to the general rules. It was, therefore, obligatory on the part of the respondentplaintiffs to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the second son, Sohan Lal is concerned, no evidence has been brought on record to show that he was born prior to coming into force of the Hindu Succession Act, 1956." (emphasis supplied.) 30. Following the aforesaid precedent, this Court also held the same view in Jayalakshmi and another v. Govindammal and others reported in 2007 (2) TLT 193. An excerpt from it, would run thus: "15. That apart, it is clear that the evidence of P.W.1 is not certain about the properties, apart from the fact that the properties which are standing in the name of Vengadapathy Gounder which were purchased by him after the death of his father Murugesa Gounder and sold by him to third parties have also been included. Again the Trial Court has found that Ex.B.8 Will executed by Annammal in favour of Vengadapathy Gounder has been proved in the manner known to law and there is absolutely no substance in the contention of the plaintiffs and on the other hand, the judgment of the Trial Court is based on sound reasoning and not perverse. The submission made by the learned Counsel for the appellate based on the Hindu Succession (Amendment) Act, 2005 that by virtue of the amendment the daughter of a corparcenary family is also entitled in her own right in the same manner as son, has no relevance for the reason that the said central amendment which has come into effect from 09.09.2005 which is prospective as it is held by the Hon'ble Supreme Court in Sheela Devi and others vs. Lal Chand and another reported in 2006 (8) SCC 581 and therefore, the amendment is not applicable as far as the facts and circumstances of the present case." 31. As such, the aforesaid decision of the Honourable Apex Court as well as the decision of this Court would highlight and spotlight that the Amendment Act is having only prospective effect and not retrospective effect. The Honourable Apex Court in the decision cited supra, has not even recognised Sohan Lal, the second son born after the year 1956 as one of the co-sharers, but only recognised the first son Lal Chand as co-sharer and even though, the death of Babu Ram took place in the year 1959, Sohan Lal was not treated as co-sharer. The Honourable Apex Court did not treat the daughters of Babu Ram as co-sharers, by holding that the Hindu Succession (Amendment) Act, 2005 is having only prospective effect and no retrospective effect. In such view of the matter, the daughters of the first defendant in this case, cannot be taken as co-sharers and the first appellate Court committed error in ordering remand of the matter for impleading the daughters of the first defendant in the suit. 32. Even the Tamil Nadu Amendment Act 1 of 1990 would clearly exclude the daughters, who got married anterior to 25.03.1989, from claiming share in the coparcenary properties. Admittedly, both the daughters of the first defendant got married long before 25.03.1989 and as such, as per both the Tamil Nadu Amendment Act 1 of 1990 as well as the Central Act namely, the Hindu Succession (Amendment) Act, 2005, the daughters cannot be treated as co-sharers. 33. Ex.B.1, is the photocopy of the cumulative record issued by the Department of Public Instructions which would show that in the school records of the plaintiff, his name was mentioned as S.V.Sivasankaran, son of S.S.Viswanathan and Saraswathi Ammal. The trial Court at paragraph No.15, highlighted that from the evidence, it was clear that even for Thulasimani, the elder sister of the plaintiff, the initials 'S.V' were used. Ex.A.14 is the marriage invitation of Thulasimani which demonstrates that Thulasimani has been described therein as the foster-daughter of the said S.S.Viswanathan and the plaintiff's name is found listed in the column 'persons expecting invitees' as S.V.Sivasankaran. The bride herself is cited as S.V.Thulasimani. It is therefore logically understandable that those two foster children were using the initials 'S.V' before their names and not in their status as adopted children of S.S.Viswanathan.
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K.R.Sivasankar vs /1St on 6 December, 2007

34. Ex.A.31 is one other marriage invitation relating to the marriage of the plaintiff's uncle's son Ramesh and in that, it is found printed as "K.R.Ramamoorthy and son" which signifies the first defendant and the plaintiff. It is therefore clear that it is not as though the plaintiff was exclusively projected as the adopted son of S.S.Viswanathan. Ex.A.15, is the marriage invitation of the plaintiff which demonstrates that the marriage of the plaintiff was scheduled to be held in the house of the first defendant in Madurai and the name of the first defendant and his wife are found as the authors of that marriage invitation as they were soliciting the invitees for their son's marriage namely the plaintiff's marriage scheduled to be held on 06.12.1987. In Ex.A.15, the bridegroom namely the plaintiff is referred to as K.R.Sivasankar. As such, it is another clinching piece of evidence which would speak against the theory of adoption. 35. Ex.A.21, is the registered will dated 25.04.1977 executed by Saraswathi Ammal, the wife of S.S.Viswanathan. An excerpt from it, would run thus: "Whereas I am the widow of late.Somalinga S.Viswanatha Iyer and could not bear any child till 1950, both my husband and myself decided to take in adoption a boy and a girl, with this in view we took care of Miss.Thulasimani and Mr.Shiva Shankar children of my younger sister Jamuna and Sri.K.R.Rama Moorthy residing at No.19-A, Solia Chetty Street, Madurai-1, and brought up them with us as our children, even though we wished to adopt them as our children, as my sister could not get any more children, she did not prepare to give them in adoption to us. But, she permitted us to bring up them and to keep them with us. Thus till this date both of them are residing with me as our foster children." 36. It is therefore clear that the plaintiff and his elder sister Thulasimani were brought up as foster-children of S.S.Viswanathan and Saraswathi Ammal. Ex.A.21, is an ante litum motum document which emerged voluntarily and this is a very important document throwing much light on the status of the plaintiff that he was only the foster son of S.S.Viswanathan and Saraswathi Ammal. The first appellate Court without properly appreciating the significance of Ex.A.21, simply in paragraph No.26 of its judgment assumed as though it was not proved as per Section 68 of the Indian Evidence Act. 37. Oblivious of the correct legal position relating to proving of the Will, the first appellate Court simply discarded Ex.A.21. It is a trite proposition of law that if the Will is sought to be put in execution by the propounder of the Will, then only Section 68 of the Indian Evidence Act has to be applied. Ex.A.21, the Will is a registered one and admittedly, emerged long prior to the arisal of the dispute between the plaintiff and the first defendant herein, in such a case, it is having authenticity of its own. The decision of the Honourable Apex Court in Pentakota Satyanarayana v. Pentakota Seetharatnam reported in (2005) 8 Supreme Court Cases 67, would posit the aforesaid proposition of law as enunciated supra. It is not the case of the defendant that Ex.A.21 is a forged or fabricated one. Hence, the first appellate Court's finding relating to the admissibility of Ex.A.21 in this case, is perverse. 38. It is therefore crystal clear that undoubtedly the plaintiff was not the adopted son of S.S.Viswanathan. In fact, Ex.A.22, is the draft prepared by the first defendant in Tamil and it was sent to Bangalore for preparing Ex.A.21. But, Ex.A.22 does not bear the signature of the first defendant. However, de hors Ex.A.22, as indicated supra, the registered Will Ex.A.21 clearly demonstrates that the plaintiff was only the foster son of S.S.Viswanathan and Saraswathi Ammal. 39. Ex.A.23, is the photocopy of the family settlement dated 19th July 1993, which was admittedly prepared by the first defendant and signed by him and sent to the plaintiff who was in Bangalore for obtaining his signature and it is also in evidence that the plaintiff refused to sign Ex.A.23 as the first defendant was not prepared to give the plaintiff his half share, but only a limited portion. The first appellate Court simply discarded Ex.A.23 as though it is only a photocopy having no legal significance. 40. In my considered opinion, the first appellate Court was wrong in rejecting Ex.A.23 for the reason that D.W.1 himself during cross-examination candidly admitted the genuineness of Ex.A.23 as D.W.1 deposed
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K.R.Sivasankar vs /1St on 6 December, 2007

that the plaintiff refused to sign Ex.A.23, for the reason that half share out of the total properties was not allotted to him under Ex.A.23. When the litigative battle is between the father and son relating to the legal status touching upon their relationship with each other and there is admission by the first defendant himself that it was the first defendant who prepared Ex.A.23 and sent it to his son and his son refused to sign it, there is no harm in relying upon such a document for the purpose of understanding that the plaintiff was referred to therein as his son by the first defendant himself. 41. Furthermore, de hors Ex.A.23, the admission of the first defendant during cross-examination would demonstrate that he during the year 1993, shortly before the filing of the suit admitted candidly that the plaintiff is entitled to a share in the suit properties. As such, the first appellate Court once again had gone wrong in not applying the correct proposition of law. 42. The learned Counsel for the first defendant would develop his argument to the effect that under Ex.A.23, what the first defendant intended to give, was only out of generosity and not in recognition that the plaintiff happened to be his son. In support of his argument, he cited the decision of the Honourable Apex Court in D.S.Lakshmaiah & another v. L.Balasubramanyam & another reported in 2004-3-L.W.49. An excerpt from it, would run thus: "19. ... From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for, an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation." 43. In the aforesaid case, the facts are to the effect that one of the co- sharers allowed his self-acquired property to be utilised by other co-sharers out of generosity and in that context, the Honourable Apex Court held that such a mere act of generosity would not be taken as evidence to prove that the property concerned is a joint property of all and that it has been cited out of context as in this case, there is no question of generosity arises, when the documents referred to supra, are clearly highlighting that the plaintiff is the son of the first defendant and the plea of generosity as put forth on the first defendant's side, is nothing, but an attempt to wriggle out of his own admission under Ex.A.23, during cross-examination. But, the first appellate Court without properly appreciating the evidentiary value of Ex.A.23 and the answer given by the defendant during cross-examination simply arrived at the conclusion that there was adoption. 44. Ex.A.34, is the certified copy of the sale deed dated 24.03.1983 which would demonstrate that the plaintiff as vendor under the deed was described as the foster son of S.S.Viswanathan and son of K.R.Ramamoorthy, the first defendant herein. The fact remains that during the year 1983, an immovable property was purchased by the plaintiff as per Ex.A.34, which was marked during the cross-examination of D.W.1 on his admission. In fact, D.W.1, during cross- examination candidly admitted that the recitals in Ex.A.34 were dictated by the first defendant only. 45. As such, it is crystal clear that during the year 1983, long prior to the dispute arose between the plaintiff and the first defendant, Ex.A.34, the registered document emerged and in that, the plaintiff has been described as the foster son of S.S.Viswanathan and the son of the first defendant. 46. The first appellate Court is having no plausible reason at all for skipping over or ignoring Ex.A.34. As such, the first appellate Court's finding, to say the least, is perverse. 47. Ex.A.25 is the power deed prepared by the first defendant in Madurai and sent to the plaintiff in Bangalore requesting the latter to execute the power deed as contained in Ex.A.24, the draft so as to enable the first defendant to act on behalf of the plaintiff also so as to sell some of the properties. 48. Ex.A.24, the covering letter coupled with Ex.A.25 would further strengthen the case of the plaintiff that he is the son of the first defendant having right as co-sharer in the coparcenary properties namely the suit
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K.R.Sivasankar vs /1St on 6 December, 2007

properties and absolutely, there is no rhyme or reason on the part of the first defendant in contending that after the alleged adoption, there was severance of status that the plaintiff had lost his right in the coparcenary properties and that he became part of the family of S.S.Viswanathan. 49. Ex.A.34, is the certified copy of the registered power deed relating to some Trust property of Kuppa family wherein the plaintiff and his minor children are treated as members of Kuppa family. As such, this is another clinching piece of evidence which the first appellate Court miserably failed to consider. 50. Ex.A.38 has been marked during the cross-examination of D.W.1 on his admission and it is the letter dated 14.02.1993 written by the wife of the first defendant to the plaintiff requesting him to sign the aforesaid draft settlement deed, Ex.A.23. This document was also not considered by the first appellate Court for no good reason. 51. In the wake of this clinching documents including registered documents and the admissions of the first defendant himself, the first appellate Court simply ignoring all these facts mainly relied on the use of initial 'S.V' before the name of the plaintiff at one point of time, while the plaintiff was a young school going boy and the fact remains that it was S.S.Viswanathan who furnished those initials for being specified in the school records. As against the clinching evidence adduced by the plaintiff demonstrating that the plaintiff is the son of the first defendant and that he was only the foster son of the deceased S.S.Viswanathan and his wife, the first appellate Court relied on certain insignificant and unimportant evidence as though he was the adopted son of S.S.Viswanathan. Ex.A.43, is the photocopy of the receipt issued by Thirumoogur Temple marked during the cross-examination of D.W.1 which would demonstrate that religious marriage of the plaintiff took place at the said temple. In Ex.A.43, the plaintiff himself signed the receipt and in that the name of the plaintiff is mentioned as R.Sivasanakaran which indicates that he is the son of the first defendant. In view of such clinching admissions on the part of the first defendant, there could be no second thought over the fact that the plaintiff is the son of the first defendant and not the adopted son of S.S.Viswanathan. 52. The first appellate Court at paragraph No.32 observed that even D.W.2, the third wife of S.S.Viswanathan during the cross-examination admitted that when she asked S.S.Viswanathan about the plaintiff who was present in the house, the said S.S.Viswanathan told her that the plaintiff was his foster son. The first appellate Court without any rhyme or reason did not rely upon her answer during the cross-examination. 53. The name of the plaintiff is found specified as S.V.Sivasankar in the following documents as under: "(i) Ex.B.2 - Photocopy of the Driving licence. (ii) Ex.B.3 - Photocopy of the Statement of Income Tax Assessment of year 1994-95. (iii) Ex.B.4 - Photocopy of the Family Ration Card. (iv) Ex.B.5 - Photocopy of the Voters list. (v) Ex.B.6 - Affidavit of the plaintiff relating to driving licence. (vi) Ex.B.7 - Photocopy of the R.C.Book. (vii) Ex.B.9 - Copy of the statement of the plaintiff in H.R.C.No.198 of 1994. (viii) Ex.B.10 - Copy of the amended petition in H.R.C.No.198 of 1994. (ix) Ex.B.11 - Advocate's Notice. (x) Ex.B.14 - Copy of the Form No.2A (xi) Ex.B.31 - Copy of the Settlement Deed executed by the plaintiff in favour of his wife."

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K.R.Sivasankar vs /1St on 6 December, 2007

Even in Ex.B.31, settlement deed executed by the plaintiff in favour of his wife, he referred to himself as foster son of S.S.Viswanathan and natural son of K.R.Ramamoorthy, even though he put the initials 'S.V' before his name. 54. Simply because, after the death of the tenant, the deceased S.S.Viswanathan, his landlord impleaded the plaintiff as the son of the deceased tenant, there is no presumption that the plaintiff is the adopted son of the deceased S.S.Viswanathan. In Rent Control Proceedings, anyone who resided along with the deceased tenant could be impleaded and it is a trite proposition warranting no more elaboration. One cannot expect the landlord of the deceased tenant to know about the details as to whether the person who resided with him was his adopted son or natural son. Hence, reliance cannot be placed on such stand of the landlord in the Rent Control Proceedings. For that matter, the plaintiff's role in participating in such Rent Control Proceedings in no way would enure support to the first defendant's plea. 55. However, in the wake of the weighty and clinching documents filed on the side of the plaintiff as discussed supra, the documents on the side of the first defendant are insignificant ones which could not prove adoption. 56. Advancing argument on the law relating to adoption as it was obtaining anterior to coming to the vogue of Hindu Succession Act, 1956, the learned Counsel for the plaintiff would submit that as per the then existed law anterior to the codified law, only son of a biological/natural father cannot be given in adoption; whereas in this case, the plaintiff happened to be only son of his biological father namely the first defendant and as such, he could not have been validly given in adoption allegedly in favour of S.S.Viswanathan, the first defendant's co-brother. He would also convincingly argue that the theory belatedly put forth by the first defendant during the pendency of the suit, as though a second son was born and alive at the time of giving in adoption the plaintiff and that the second son died only after the plaintiff having been given in adoption, the plaintiff, was disbelieved by both the Courts below and as such, on that ground itself, the theory of adoption is untenable. 57. The learned Counsel for the plaintiff would correctly and convincingly argue, placing reliance on the decision of this Court in Meenakshi Ammal v. Velusamy reported in (2002) 3 M.L.J 305 and would develop his argument that the plaintiff happened to be only son of the first defendant and as per the Hindu Law, he could not have been given in adoption. Certain excerpts from it, would run thus: "18. N.R.Raghavachariar's Hindu Law, 8th edition, paragraph 137 deals with adoption of an only son: "An adoption of an only son is not null and void under the Hindu Law and the text of Vasishta prohibiting it is only directory and not mandatory." ... 22. The law of adoption is now governed wholly by the Hindu Adoptions and Maintenance Act, 1956. The adoption in the present case is one that is alleged to have been made on a date that is prior to that and therefore, only the earlier Hindu Law covers it. N.R.Raghavachariar's Hindu Law states that the while Sankskrit Law of Adoption is evolved from two texts and a metaphor. The texts are those of Manu and Vasishta and the metaphor is that of Saunaka. Manu says: "He whom his father or mother gives to another as his son, provided that the donee has no issue, if the boy be of the same class, and affectionately disposed, is considered as a son given, the gift being confirmed by pouring water." (Manu, ix, S.168). Vasishta's text is "A son formed of sexual fluids and of blood, proceeds from his father and mother as an effect from its cause. Both parents have power to sell, or to desert him. But let no man given, or accept, an only son, since he must remain to raise up a progeny for the obsequies of ancestors."

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K.R.Sivasankar vs /1St on 6 December, 2007

Under the Hindu Law, it is also essential for the validity of an adoption that the child should be given to the adopter by the father or if dead, by the mother. No other person has the right nor can the same be delegated to any other. The effect of adoption is a complete severance of the child adopted from the natural family in which he was born and complete substitution into the adopter's family as if he were born in it. It is as if he is new born in the family of his adoptive father. 24. There is no documentary evidence of adoption. There is no photographic evidence of adoption. No one knows about the date, month or year of adoption. There is discrepancy regarding the place at which the adoption took place. In those circumstances, it is difficult to believe that an only child was given in adoption." 58. This Court in the aforesaid decision would clearly highlight the point that before the commencement of Hindu Adoption and Maintenance Act, 1956, the old Hindu Law was applicable and as per such Hindu Law, a father having only one son cannot give him in adoption and that too in the absence of any clinching evidence, the adoption of only son of the biological father cannot be upheld as true. Here, in this case, as per the first defendant, the alleged adoption took place during January 1954 and at that time, the old Hindu Law was in vogue and hence his only son, the plaintiff could not have been legally given in adoption at all and that too in the wake of murky evidence adduced on the side of the first defendant. To get over this obstacle, the first defendant went to the extent of dishing out an untenable plea after nine years of the filing of the present suit, in his additional written statement as though just a few months before allegedly giving in adoption the plaintiff, one other son was born to the first defendant and such second son died a few months after giving in adoption the plaintiff. Absolutely, there is no iota or shred of evidence to prove such a plea and it is trite proposition of law that witnesses might lie, but the circumstances would not lie. Had really the first defendant gave birth to one other son and that one another son died, then he would have set out those facts in the written statement itself, but after nine years of the filing of the suit by the plaintiff, by way of additional written statement, such a plea was put forth purely to get over the said legal obstacle. Hence, it is clear that as per the then existed Hindu Law during the year 1954, there could not have been no valid adoption of the plaintiff by S.S.Viswanathan. The unassailable fact remains that even though the suit was filed in the year 1994 and the written statement had been already filed by the first defendant, yet in the additional written statement filed on 16.12.2003 so to say, nine years after the filing of the suit, a new theory had been put forth by the first defendant as though he gave birth to a second son even before allegedly giving in adoption his first son, the plaintiff in favour of S.S.Viswanathan and that the second child died during the year 1954. As such, blatantly and explicitly, it is clear, in the absence of any iota or shred of evidence, that the first defendant's theory of he having had a second son is turned out to be an utter falsehood. 59. Furthermore, the learned Counsel for the plaintiff by drawing the attention of this Court to the deposition of D.W.3, Jegatheesa Ayyangar, would develop his argument that, D.W.3 uttered out falsehood. D.W.3, in the chief examination would state that during the year 1956, the said alleged adoption took place and that he was accompanying his father to Bangalore in connection with the performance of the rituals relating to such adoption. Whereas it is the case of the plaintiff that the alleged adoption was during January 1954. 60. It is also pertinent to note that there were three near relatives who were very much alive at the time of the trial, but they were not chosen to be examined to speak about the alleged adoption for the reasons best known to the first defendant. Absolutely, there is no evidence to prove the alleged adoption. 61. It is a trite proposition of law that the adoption should be proved by adducing clear evidence. In this connection, I would like to refer to the decision of the Honourable Apex Court in Pentakota Satyanarayana v. Pentakota Seetharatnam reported in (2005) 8 Supreme Court Cases 67. An excerpt from it, would run thus: "35. We have already referred to the arguments advanced by both sides on adoption. Our attention was drawn to the findings recorded by the trial Court and by the High Court on this aspect and the relevant portion of the oral and documentary evidence was also relied on by both sides. The evidence relied upon is that of
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K.R.Sivasankar vs /1St on 6 December, 2007

PWs 1, 3 and 6, DW 2 and DW 3. Their evidence, in our opinion, falls short of the required proof in law. The respondents, in our view, have a heavy onus to discharge, the burden lies on them to prove the factum of adoption. Krishna Bhagavan, the respondent herein seeks to exclude the natural line of succession to the property by alleging adoption. The instant case is a classic example where the alleged adoptive father himself filed a written statement denying adoption. This apart, the following circumstances negate the genuineness of the adoption. This Court in the case of Rahasa Pandiani v. Gokulananda Panda [(1987) 2 SCC 338] held as under: "An adoption would divert the normal and natural course of succession. Therefore the Court has to be extremely alert and vigilant to practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the Will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is claimed on the basis of oral evidence and is not supported by a registered document or any other evidence of a clinching nature, if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption.(Para 4)" 36. This Court held in Kishori Lal v. Chaltibai [1959 Supp (1) SCR 698 : AIR 1959 SC 504]. We can do no better than to quote the relevant passage from the above judgment which reads as under: "As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasised by the Privy Council in Sootrugun v. Sabitra {(1834) 2 Knapp 287 : 12 ER 489]; in Diwakar Rao v. Chandanlal Rao [ILR (1917) 44 Cal 201 : AIR 1916 PC 81]; in Kishori Lal v. Chuni Lal [(1908) 36 IA 9 : ILR (1908) 1931 All 116]; in Lal Kunwar v. Chiranji Lal [(1909) 37 IA 1 : ILR (1909) 1932 All 104] and in Padmalav Achariya v. Fakira Debya [AIR 1931 PC 84 : 35 CWN 465]. 62. The aforesaid decision would clearly highlight as on whom the burden lies and how, when the plea of adoption is taken so as to divert the right to the claim over the property is taken, the Court should be careful in scrutinising the evidence. Here, the first defendant has taken the plea of adoption purely for the purpose of depriving his only son, the plaintiff, of his share in the suit properties. 63. During arguments, it transpired that the father sold indiscriminately most of the suit properties so as to deprive the son and his act of selling even continued during the Court proceedings. 64. The learned Counsel for the first defendant would develop his argument as though owing to lapse of time, the Court cannot expect much more a better evidence than what was adduced before the trial Court. Any piece of evidence cannot be treated as reliable evidence for recording a finding that there was adoption. The first defendant's own admission both at the time of deposing before the Court during the cross-examination and also his own commitments in various documents as set out supra, would falsify his plea of adoption. Simply because, in some documents, the plaintiff's initials are 'S.V', there is no presumption of adoption. Furthermore, legally also, there could not have been any adoption in view of the then existed law as discussed supra. Hence, in this view of the matter, it is clear that the trial Court's finding that there was no adoption is proper. But, the first appellate Court's finding that there is adoption, is totally based on misreading of the evidence as well as misapplication of law and that alone lead to the first appellate Court's perverse conclusion. Accordingly, the point is decided. 65. In this view of the matter, the Civil Miscellaneous Appeal has to be allowed as there is no necessity for remand.
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K.R.Sivasankar vs /1St on 6 December, 2007

66. The cross appeal has been focussed by the first defendant as against the order of the first appellate Court in giving a finding that Section 12 of the Hindu Adoption and Maintenance Act, is applicable. In view of my finding that there was no adoption at all, the question of invoking Section 12 of the Act does not arise. For the purpose of comprehensively deciding this matter, I would like to refer to Section 12 of the Hindu Adoption and Maintenance Act and it has got only prospective effect and not retrospective effect. Had really there been any adoption as claimed in the year 1954, so to say, before the commencement of Hindu Adoption Amendment Act 79 of 1956, there would not have been divesting of the plaintiff's right in the natural family and by virtue of Section 12 of the Act, such divested right could not have got revested on him. 67. The learned Counsel for the plaintiff cited the following decisions relating to vesting and divesting as under: (i) Mahableshwar Narayanbhat v. Subramanya Shivram reported in 72 IC 309. (ii) Shyama Charan v. Sricharan reported in A.I.R 1929 Calcutta 337. (iii) Rakhalraj Mondal and another v. Debendra Nath reported in A.I.R (35) 1948 Calcutta 356. (iv) V.K.R.N.S.M.Subramanian v. V.K.R.N.P.S.S.M.Somasundaram Chettiar reported in 1937 I M.L.J 60. In view of my findings supra, the aforesaid decisions are all not germane for adjudicating the cause. 68. There are catena of decisions to the effect that by birth itself, coparceners get vested right to a share, the quantum of which may be uncertain depending upon the number of coparceners and at the time of partition, the exact share would get crystallised. However, adoption would divest the adopted son from claiming share. This is a clear settled proposition of law in view of the earlier decisions. 69. However, in this case, since there was no adoption, the question of the plaintiff getting divested of his right in the coparcenery property which belongs to the defendant, does not arise. 70. The learned Counsel for the first defendant cited the following decisions: (a) Chandan Bilasini v. Aftabuddin Khan reported in AIR 1996 SUPREME COURT 591. The aforesaid decision is not relating to this case for the reason that in the said case, ample evidence was adduced relating to adoption and in view of factual circumstances, the Honourable Apex Court held that non-examination of other witnesses was not material. However, in this case, as already cited supra, there is absolutely no evidence worth the name and that in the wake of contrary evidence available on the plaintiff's side that there could not be any partition. (b) V.V.Ramarao v. K.Bhaskararao reported in (1969) 2 M.L.J 105 (SC). The decision cited supra is not relevant to this case as the evidence on record shows that there is contrary evidence to the plea of adoption and in such a case, the question of presumption does not arise. (c)Seetharama Chandra Row v. Krishna Row reported in 1925 Privy Council 201. The above said decision is on the point relating to presuming the right of the widow to adopt his son and in the said case, the widow brought up the boy concerned from his boyhood to manhood and nearly forty years, he was treated as the adopted son and in that context, the aforesaid decision emerged which is having no relevance to this case and it is quite obvious.
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71. The learned Counsel for the first defendant further cited the following decisions: (i) Chandra v. Mt.Raj Kunwar reported in A.I.R 1926 Privy Council 91. (ii)Tewari Raghuraj v. Subhadra Kunwar reported in AIR 1928 Privy Council 87. (iii) Harihar Pratap v. Bajrang Bahadur reported in A.I.R 1937 Privy Council 242. (iv) Neelawa v. Gurshiddappa reported in AIR 1937 Bombay 169. (v) Debi Prasad v. Tribeni Devi reported in AIR 1970 SUPREME COURT 1288. (vi) Y.K.Nalavade v. Ananda G.Chavan reported in AIR 1981 Bombay 109. (vii) Vasant v. Dattu reported in AIR 1987 SUPREME COURT 398. (viii) Ashoka Sa v. Bidyadhar Patra reported in AIR 1995 ORISSA 59. (ix) Daniraiji Vrajlalji v. Chandraprabha reported in AIR 1975 SUPREME COURT 784. 72. I have carefully gone through the aforesaid decisions and in view of my discussions supra, these decisions are not germane for adjudicating the second appeal. 73. As such, ultimately, I am of the considered opinion that the plaintiff is having equal right in the suit properties which are the coparcenary properties of the plaintiff and the first defendant. The purchasers of the property from the first defendant can only step into the shoes of the first defendant's right and seek their equities during the final decree proceedings and the same will have to be processed as per law by the lower Court. 74. In the result, S.A.No.542 of 2006 and C.M.A.No.251 of 2006 filed by the plaintiff are allowed and the Cross Objection filed by the first defendant is disposed of. Accordingly, the plaintiff is entitled to half share in the profits which accrued from the suit properties from the date of suit till the date of delivery of possession after dividing the suit properties by metes and bounds and in that connection, the first defendant is bound to render accounts and during final decree proceedings, separate enquiry under Order 20 Rule 12 C.P.C shall be conducted in that regard. Consequently, connected Miscellaneous Petitions are closed. The parties shall bear their respective costs. rsb To 1.The Principal District Judge, Madurai.

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