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Judgment
R.S. Ramanathan, J.—Heard both sides.
The unsuccessful first defendant in O.S. No. 342 of 2004, on the file of the Principal District Munsif Court, Tuticorin is the appellant herein.
The first respondent herein filed the above suit for declaration that she is the legal-heir of Kasi Nadar and Muthulakshmi Ammal and for
direction directing the first defendant viz., the appellant herein, to hand over all documents and title deeds in respect of the first schedule property
and to hand-over the fixed deposit receipts mentioned in the 2nd schedule property and for directing the defendants 2 to 10, who are tenants in the
property to pay the rent to the plaintiff. It is stated by the first respondent in the plaint that she was given in adoption to Kasi Nadar and
Muthulakshmi Ammal in the year 1963 by her natural parents Chelliah Nadar and Athilakshmi Ammal. The adoption ceremony was held at
Thandapathu in Ponvandu Ayyan Kovil according to religious practice when the first respondent/plaintiff was one-and-half years and her natural
parents gave her in adoption and Kasi Nadar and Muthulakshmi Ammal accepted the plaintiff by spraying Manchappal in the presence of the
family members and since then, she was cared and nursed by Kasi Nadar and Muthulakshmi Ammal. The plaintiff''s adoptive father Kasi Nadar
worked in Madura Coats and she was educated by Kasi Nadar in Holy Cross Girls Higher Secondary School at Tuticorin and her marriage was
celebrated by Kasi Nadar and she was treated as the adoptive daughter of Kasi Nadar by all the relations. Kasi Nadar died in the year 1986
intestate and Muthulakshmi Ammal, the adoptive mother of the plaintiff also died in the year 2000 and the first defendant viz., the appellant herein
who was the brother of Muthulakshmi Ammal, after the death of Muthulakshmi Ammal, trespassed into the house where Muthulakshmi Ammal
was residing and had taken all the original documents, fixed deposit receipts. Even during the life time of Muthulakshmi Ammal, the appellant
assaulted her physically and a complaint was given by Muthulakshmi Ammal against the appellant. As she is entitled to succeed to the property and
the first defendant has no right or title over the same, she filed a suit for declaration that she is the legal heir of Kasi Nadar and Muthulakshmi
Ammal and for further direction.
The first defendant/appellant denied the factum of adoption as stated by the plaintiff/1st respondent and also denied the fact that the plaintiff was
given in marriage by Kasi Nadar and Muthulakshmi Ammal and she is the legal-heir of Kasi Nadar and Muthulakshmi Ammal. The appellant
further stated that Muthulakshmi Ammal executed a Will, dated 28.11.2000 bequeathing the property to him and after her death, on 31.12.2000
the property devolved on her as per the Will and therefore, he is entitled to the property.
The learned District Munsif, on the basis of the pleadings framed the following two issues:
Whether the will Ex.B6 is valid?
Whether the plaintiff is entitled to the declaratory relief as prayed for?
The trial Court on the basis of the oral evidence of PW1 to 7 and Exs.A1 to A3, A23, 24, 25 to 27, held that the oral evidence and above
documents proved that the plaintiff is the adoptive daughter of Kasi Nadar and Muthulakshmi Ammal and the appellant/first defendant failed to
prove the execution of the Will and also held that the Will was not executed by Muthulakshmi Ammal and decreed the suit.
The appellant filed the appeal against the said judgment and decree passed in A.S. No. 48 of 2007, on the file of the Subordinate Judge,
Tuticorin and the learned Sub Judge also held that the Will was not proved by the appellant and the adoption was proved by the evidence of PW1
to 7 and documents the Exs.A1 to A3, A23, 25 to 27 and held that the plaintiff proved that she is the adoptive daughter of Kasi Nadar and
Muthulakshmi Ammal and dismissed the appeal. Aggrieved by the same, this second appeal is filed by the unsuccessful first defendant.
Though various substantial questions of law were raised by the appellant in the grounds of appeal, according to me, the following substantial
questions of law arise in the 2nd appeal:
Whether the Courts below are right in presuming the adoption on the basis of the Exs.A2 to A4,, 23, A25 to 27 in the absence of any proof for
adoption?
Whether the suit for declaration that the plaintiff is the legal-heir is maintainable without a prayer for declaration that she the adoptive daughter of
Kasi Nadar and Muthulakshmi Ammal, when the adoption is disputed?
Mr. C. Dhanaseelan, the learned Counsel appearing for the appellant submitted that no proof was adduced by the first respondent about the
factum of adoption and soon after the death of Kasi Nadar, Legal-heir Certificate was issued in favour of Muthulakshmi Ammal alone and in that
document, the first respondent was not mentioned as the adoptive daughter and the Legal-heir Certificate issued for the deceased Kasi Nadar was
marked as Ex.B4 and even after the death of Muthulakshmi Ammal, no attempt was made by the first respondent to obtain the Legal-heirs
certificate as if she is the adoptive daughter of Muthulakshmi Ammal and in the absence of Legal-heir certificate and in the absence of any proof for
adoption, the plaintiff viz., first respondent, cannot claim to be the adoptive daughter and hence, she cannot be declared as legal heir of Kasi Nadar
and Muthulakshmi Ammal.
He further submitted that the documents, which were relied upon by the Courts below for arriving at the conclusion that there was adoption,
will not prove the adoption as per the judgment of the Honourable Supreme Court and without proving the factum of adoption, the Court cannot
presume that there was adoption on the basis of the Exs.A2, A3, A23 to A27.
He further submitted that witnesses were examined on the side of the plaintiff from September 2004 to 09.02.2005 and at that time, the natural
mother of the first respondent was alive and she died on 27.02.2005 and no attempt was made to examine the natural mother, who was the
competent witness to speak about the adoption and none of the relatives were examined to prove the adoption and no proof was adduced that she
was accepted and recognised as adoptive daughter of Kasi Nadar and Muthulakshmi Ammal by the relatives and therefore, in the absence of any
proof of adoption, the Court cannot presume the adoption on the basis of the exhibits referred to above. He also relied upon the judgment
reported in Rahasa Pandiani (dead) by Lrs. and Others Vs. Gokulananda Panda and Others, . Lakshman Singh Kothari Vs. Smt. Rup Kanwar, .
The learned Counsel appearing for the appellant Mr. c.Dhanaseelan, further submitted that in Ex.A26 in the Record Sheet maintained for 1 to
7th standard, the father''s name was left blank and only when the first respondent studied in 8th and 9th standard, the father''s name was mentioned
as Kasi Nadar. Therefore, he submitted that in the absence of any proof of adoption, the plaintiff is not entitled to declaration that she is the legal-
heir of Kasi Nadar. He further submitted that u/s 26 of the Tamil Nadu Court Fees Act, when the suit is filed on the basis of adoption, the suit has
to be valued as per that section and in this case, the plaintiff relied upon the adoption and claimed the status of adoptive daughter of Kasi Nadar
and Muthulakshmi Ammal and when that is disputed, she ought to have prayed for declaration that she is the adoptive daughter of Kasi Nadar and
Muthulakshmi Ammal and without proving the same, she is not entitled to declaration that she is the legal heir of Kasi Nadar and Muthulakshmi
Ammal.
On the other hand, Mr. K.Srinivasan, the learned Counsel appearing for the respondents submitted that Ex.B4, the Legal-heir certificate given
to Muthulakshmi Ammal on the death of Kasi Nadar cannot be taken into consideration to hold that the first respondent is not the adoptive
daughter. The learned Counsel also relied upon the judgment of this Court reported in 2010 (1) TLNJ 190 (Civil), in the case of Bhagawathy v.
Mahamayee and in 2002(2) CTC 228, in the case of N. Dhanalakshmi v. The District Revenue Officer, Salem and two others and submitted that
the revenue authorities have no power to issue such certificate and the Legal-heir certificate issued by the revenue officials will not in any way affect
the right accrued to persons under law and therefore, it is not open to the appellant to contend that as per Ex.B4, the plaintiff is not entitled to claim
any right.
He further submitted that the entries in the school records are having more authentic evidentiary value as held by the Honourable Supreme
Court in the judgment reported in 2007 (1) 660 in the case of Ananthi v. Ponnammal @ Vijayalakshmi and admittedly, in Exs.A3, 26 & 27 are
Records maintained by the school authorities wherein the father''s name is mentioned as Kasi Nadar and therefore, those documents will prove that
she is the adopted daughter of the Kasi Nadar and Muthulakshmi Ammal. He further submitted that Ex.A2 is the Marriage Invitation and Ex.A25
is the nomination form filled up by Kasi Nadar, as per ESI Act wherein the first respondent herein was described as daughter of Kasi Nadar and
the first respondent was permitted to withdraw the fixed deposit amount as evident by Ex.A23 and these documents would corroborate the case
of the plaintiff/1st respondent that he is the adopted daughter of Muthulaskhmi Ammal.
On the basis of the arguments advanced by both parties and on the basis of the evidence available on record, this Court has to see whether the
factum of adoption was proved by the 1st respondent/plaintiff and whether the concurrent finding of fact that the 1st respondent/plaintiff was the
adopted daughter of Kasi Nadar and Muthulakshmi Ammal is correct.
Before going into the question, the law on the issue of adoption has to be analysed. In the judgment reported in Thavamani Vs. The Special
Tahsildar (ADW) and Another, it has been held that in the case Kishori Lal Vs. Mst. Chaltibai, the Honourable Supreme Court observed:
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 evidence to support it should be such that it is free from all suspicions of fraud and so
consistent and probable as to leave no occasion for doubting its truth.
Direct evidence is not necessary. An adoption may be proved by probabilities, by conduct and admissions of the father and other relations, the
conduct and admissions of the persons whose adoption is in question and so on.
The fact that the adopted son offered pinda to the natural father but not to the adoptive father is a circumstances against the adoption. An ex-parte
statement made by a widow in mutation proceedings that she had authority from her husband to adopt is not admissible in evidence against the
reversioners in a subsequent suit challenging the adoption either u/s 32(3) or Section 33 of the Indian Evidence Act, 1872. A statement made by a
testator in his will to the effect that the legatee was the adopted son of the testator can be used as evidence by the legatee in a suit for a declaration
of adoption. A statement in the Panchayat report is admissible although the adoption itself was not the subject matter of the enquiry.
Lapse of time affects proof required; it may render little evidence sufficient; where long time has elapsed the burden may shift to the person
disputing, adoption especially where long recognition of adoption raises a presumption in favour of adoption. Absence of direct evidence may in
such cases be favourably considered.
Where there is evidence of gift and acceptance and of recognition for a number of years, formal proof of the performance of the ceremonies may
be dispensed with.
An assertion of her authority to adopt and her course of conduct which could only be described as equivocal are not sufficient to establish the
validity of an adoption made by widow.
A bare denial of adoption implied a denial only of the fact and not of the legality of adoption.
Once the facts are ascertained, a presumption arising from conduct cannot establish a right which the facts themselves disprove.
If the oral evidence shows that there was an adoption and there is nothing to show that valid adoption in accordance with law could not have taken
place, evidence of conduct which went to show that the adoption was recognised by the family of the adoptive father for a long time would lend
support to the inference that the adoption had in fact been made.
Therefore, as per the above judgment, to prove the adoption evidence must be free from all suspicion of fraud and so consistent and probable as
to leave no occasion for doubting its truth.
It has been further held in the same judgment that direct evidence is not necessary and adoption may be proved by probabilities, by conduct
and admissions of the father and other relations. Further, where long time has elapsed, the burden may shift to the person disputing adoption
especially where long recognition of adoption raises a presumption in favour of adoption. The same principal has been reiterated in the judgement
reported Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, .
In the judgment reported in L. Debi Prasad (Dead) by Lrs. Vs. Tribeni Devi and Others, . it has held as follows: ""Under Hindu Law the giving
and receiving of a body are absolutely necessary to the validity of an adoption; they are the operative part of the ceremony, being that part of it
which transfers the boy from one family to another; but the Hindu law does not require that there shall be any particular from so far as giving and
acceptance are concerned; for a valid adoption all that the law requires is that the natural father shall be asked by the adoptive parent to give his
son in adoption, and that the boy shall be handed over and taken for this purpose.
This burden of proving satisfactorily that he was given by his natural father and received by the adoptive father as his adoptive son is on the alleged
adopted son. But although the person who pleads that he had been adopted is bound to prove his title as adopted son, as a fact yet from the long
period (nearly 54 years in this case) during which he had been received as an adopted son, every allowance for the absence of evidence to prove
such fact is to be favourably entertained.
Where it is alleged that the boy was adopted on the day of his birth, the evidence of the by on the question of the ceremony of actual giving and
taking is hearsay.
In the case of a Hindu, long recognition as an adopted son, raises a strong presumption in favour of the validity of his adoption, arising from the
possibility of the loss of his rights in his own family by being adopted in another family. In the case of an ancient adoption evidence showing that the
boy was treated by relations, including the person who later on challenges the same, for a long time as the adopted son at the time when there was
no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming.
In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. In the case of an adoption said to have taken place
years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to
have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no
pre-determined way of proving any fact. If after taking an overall view of the evidence adduced in the case, the Court is satisfied that the adoption
pleaded is true, it must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it s a valid adoption as well.
In Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, the same principles has been reiterated.
In the judgment reported in 1997(II) CTC 571, in the case of Thavamani v. The Special Tahsildar (ADW), Devakottai and Anr. it has been
held that ""a very heavy and serious onus rests on a person who seeks to displace the natural succession to property by the act of an adoption. In
such a case the proof of adoption as well as of the power to adopt of the adopter requires almost a strict and severe scrutiny.
Further in the judgment reported in Rahasa Pandiani (dead) by Lrs. and Others Vs. Gokulananda Panda and Others, , it was held that when
the factum of adoption is in dispute, the absence of registered document to prove the adoption was a very important circumstances to disprove the
alleged adoption.
Therefore, from the above said judgment, the principles laid down by the Honourable Supreme Court, it is seen that the burden is heavily on the
person, who claims to be the adopted child to prove that she is the adoptive parents.
In this case, the first respondent/plaintiff examined herself as PW1 and examined another 6 persons to prove the adoption. Admittedly, except
PW6, all other witnesses were not present at the time of adoption. PW6 is the brother of Kasi Nadar and he has given evidence that the first
respondent/plaintiff was given adoption in the temple stated by plaintiff, by the natural parents of the plaintiff and that was received by Kasi Nadar
and Mathulakshmi Ammal and the adoption was conducted as per the family rites and customs. Unfortunately, he did not make himself available
for the cross examination and hence, his evidence cannot be taken into consideration for deciding the issue and his evidence is to be eschewed.
PW2 is the Bank official and he has given evidence that the fixed deposit amount deposited by Kasi Nadar was received by the first
respondent/plaintiff and through him Ex.A23 was marked. It is seen from the Ex.A23 that the first respondent''s name was written after rounding of
the name of Kasi Nadar and Ex.A24 is the letter given by the first respondent/plaintiff to the Secretary of the Bank requesting the Bank to change
the deposit in her name and nominate her husband as her legal heir. It is seen from Ex.A23, the first respondent''s name was mentioned as fixed
deposit holder and it was on the basis of Ex.A24, letter given by the first respondent. In Ex.A.24 also she has not stated that she is the adopted
daughter and she only stated that her father, Kasi Nadar died and therefore, the fixed deposit may be changed in her name. Further, Ex.A24 is the
self serving document given by the respondent.
Ex.A25 is the Family Declaration Form signed by the Kasi Nadar as per the provisions of ESI Act, wherein the first respondent was
mentioned as daughter. In Ex.A26, Kasi Nadar was mentioned as father, when the petitioner studied in 8th and 9th standard and in respect of
records sheet from 1st to 7th standard, the father''s name was left blank. In Ex.A27, the first respondent father''s name was mentioned as Kasi
Nadar. Ex.A3 is the Transfer Certificate wherein Kasi Nadar is described as father of the first respondent. Therefore, we will have to see whether
these documentary evidences are sufficient to prove the adoption of the first respondent/plaintiff in the absence of any proof of adoption that had
taken place in the year 1962.
As held by the Honourable Supreme Court in the judgment reported in Kishori Lal Vs. Mst. Chaltibai, and in L. Debi Prasad (Dead) by Lrs.
Vs. Tribeni Devi and Others, , in case of delay or lapse of 30 years or 40 years, direct evidence may not be available and the Court has to
proceed on the basis of the probabilities and circumstances. In this case also, according to the first respondent, the adoption had taken place in the
year 1962 and the dispute arose in the year 2002. Therefore, 40 years have lapsed and it may not be possible to have the direct evidence
regarding the adoption. But in this case, the paternal uncle of the first respondent viz., the brother of Kasi Nadar was alive and he was examined as
PW6 and he has also spoken about the adoption of the first respondent, but he was not available for cross examination and hence, his evidence
was rightly eschewed by the trial Court.
Further, it is admitted that the natural mother of the first respondent died after the evidence of plaintiff was closed and no attempt was made by
the first respondent/plaintiff to examine her to prove the adoption. Though, it was stated by the plaintiff in re-examination that she was bed-ridden
for more than one year, no proof was filed to that effect. Therefore, though competent witnesses to speak about the factum of adoption namely
PW6 and the natural mother of the first respondent/plaintiff were available, those persons were not examined to prove the adoption. Further, there
is no evidence available that the plaintiff/first respondent was recognised and accepted as adoptive daughter of Kasi Nadar and Muthulakshmi
Ammal and none of the other relations who were examined have given evidence about the subsequent treatment given to the plaintiff/first
respondent, the adoptive daughter by the relatives of Kasi Nadar and Muthu Lakshmi Ammal. Hence, in the absence of any proof for valid
adoption, when witnesses were available to prove the same, the question that loom large for consideration is whether the adoption can be
presumed on the basis of the entries made in the school records and nomination form signed by the adoptive father without examining the proper
persons.
In the judgment reported in Rahasa Pandiani (dead) by Lrs. and Others Vs. Gokulananda Panda and Others, , it was held that the absence of
registered document was very important circumstances to disprove the alleged adoption.
In the judgment reported in 2001 (4) CTC 45, in the case of Nilima Mukherjee v. Kanta Bhusan Ghosh, it was held by the Honourable
Supreme Court that in the absence of any document for adoption, except bank account standing in the joint name of late tenant and defendant
none having knowledge about the said adoption, the mere fact of having joint account would not prove adoption in absence of any other cogent
evidence. Then we will have to see the entries made in the school records. Though it has been held in the judgment reported in 2006 (1) LW 198,
in the case of State Bank of Punjab v. Mohinder Singh that the entries in the admission register of the school are having more probative and
evidential value, in this case by the production of the school records wherein Kasi Nadar was described as father it cannot be contended that
would prove the adoption, cannot be accepted. In the case of school records namely SSLC book and other records if the person who gave the
information signed in that case, it can be taken that those records are relevant wherein the person has accepted the relationship. In this case, Kasi
Nadar did not sign in the school certificate and no evidence was let in that the name of the father was filled up on the basis of the information given
by Kasi Nadar. PW3, the School staff did not state that Kasi Nadar gave the information. Therefore, we are left with the ESI nomination form,
Ex.A25 wherein Kasi Nadar has signed declaring the status of the first respondent/plaintiff is the daughter. According to me, in the absence of any
evidence regarding the factum of adoption or the subsequent treatment or recognition given by the family, one cannot come to the conclusion about
the status of the plaintiff on the basis of one statement given in the ESI nomination by the adoptive father. Admittedly, the plaintiff/first respondent
was the sister''s daughter of Kasi Nadar and PW7 has deposed that the plaintiff/first respondent was treated as foster daughter of Kasi Nadar and
therefore, in order to confer certain benefits to her such as medical benefits, Kasi Nadar might have mentioned her as daughter. Further PW5 is the
sister of plaintiff/1st respondent and even according to her own admission she was not the eye witness to adoption and when she was 13 years old
she was informed by her father that the plaintiff/1st defendant was given in adoption and therefore, adoption was not also proved through her.
PW7 has stated in his evidence that the plaintiff was taken as a foster daughter of Kasi Nadar and Muthulakshmi Ammal as they have no child.
Therefore, oral evidence relied upon by the plaintiff did not prove adoption and in the absence of any oral proof and valid adoption, the Court
cannot presume the valid adoption on the basis of the Exhibits referred to above.
The appellant relied upon the Ex.B4, the Legal heir certificate wherein the plaintiff was not described as legal-heir of the deceased Kasi Nadar.
No doubt, in the judgment reported in 2010(1)TNLJ 199 (Civil) and 2002(2) CTC 228 our Honourable High Court held that the revenue officers
have no legal authority to issue such certificate and the Court alone is the competent authority to issue such certificate, in my opinion, Ex.B4 can be
taken into consideration as one of the circumstances to disprove the adoption. The reason being that if really the plaintiff/first respondent had been
treated as the adoptive daughter of Kasi Nadar and Muthulakshmi Ammal for all these years viz., 35 years, the plaintiff would have been
mentioned as daughter of Kasi Nadar. Therefore, the fact that the plaintiff was not mentioned as the legal heir of Kasi Nadar in Ex.B4 would be a
circumstance for arriving at a conclusion that the adoption is not proved.
Nevertheless, the Lower Courts without appreciating the law laid down by the Honourable Supreme Court held that the non- examination of
the natural mother of the 1st respondent is not fatal to the case of the respondents. The Lower Appellate Court also without appreciating the
evidence of PW1 to 7 erred in holding that the evidence of PW1 to 7 proved the adoption. As stated supra, PW7 has given evidence that the 1st
respondent was treated as foster daughter and PW5, the sister of the 1st respondent has no personal knowledge and PW2 is a Bank official and
PW4 is an official from ESI Corporation and they have not stated anything about the adoption and therefore, no evidence was let in to prove the
adoption.
Further, the 1st respondent failed to examine any witness to prove that she has been recognised and treated as adoptive daughter of Kasi
Nadar and Muthulakshmi Ammal and in the absence of any evidence, adoption cannot be presumed by producing marriage invitation and
Nomination Form signed by the adoptive father or the entries in the School Records. Therefore, the Courts below erred in presuming that there
was valid adoption on the basis of Exs.A2,3,23,25 and 27 and therefore, substantial question of law No. 1 is answered in favour of the appellant
and it is held that the Lower Appellate Court erred in arriving at a conclusion that the 1st respondent is the adopted daughter of Kasi Nadar and
Muthulakshiammal..
Further when the status of the first respondent is disputed, she ought to have filed a suit for declaration that she is the adopted daughter and
without filing that, she has filed the suit for declaration that she is the legal-heir. As I have come to the conclusion that the first respondent has not
proved to be the adoptive daughter of Kasi Nadar and Muthulakshmi Ammal, she is not entitled to declaration, declaring herself as the legal heirs
of the Kasi Nadar. Hence, the 2nd substantial question of law is also answered against the first respondent.
In this case, both the Courts below have unnecessarily gone into the question of validity of the Will alleged to have been executed by
Muthulakshmi Ammal in favour of the appellant. In my opinion, the Courts below should not have gone into the question of validity of the Will as
the appellant has not prayed for declaration that he is the owner of the property under the Will and he did not file a counter-claim or instituted a
separate suit nor he paid any court fee.
In a suit for declaration by the plaintiff, the Court has to give finding that the plaintiff is entitled to declaration or not and in the absence of any
counter-claim made by the defendants on the basis of some documents by which he makes a rival claim, the Court should not have gone into the
question of rival claim. Therefore, in my opinion, the Courts below have unnecessarily discussed about the validity of the Will, which is not relevant
for deciding the case of the plaintiff.
In the result, this second appeal is allowed and the decree and judgment of the Courts below are set aside. Consequently, connected
Miscellaneous Petition is closed. No costs.