Murari @ Peetha Subba Rao vs Tata Rammohan Rao and Another

V. Bhaskara Rao, J.—This is an appeal filed u/s 384 of the Indian Succession Act, 1925, for short the ''Act'', against the order in (SC) O.P. No. 55/1984 on the file of I Additional District Judge, Krishna at Machilipatnam, dated 20-7-1988 refusing to grant a Succession Certificate in favour of the appellant-petitioner in respect of petition schedule articles.

The facts in brief are that:

One Murari China Punniah and Murari Seethamma of Peddarayuduthota, h/o. Kaza had no issue and hence, the appellant-petitioner was adopted and a registered Adoption Deed was executed on 14-8-1952. The adoptive parents were murdered on 28-1-1977 in their house at Peddarayuduthota and in that connection a case in Crime No. 7/1977 of P.S. Kuchipudi was registered and it culminated into a Sessions Case viz., S.C. No. 33/1977 on the file of the Additional Sessions Judge, Krishna. It was disposed of on 30-8-1977. The case property consisting of gold ornaments in that case was marked as M.Os. 19 to 24, 29 and 42 and they were ordered to be returned to the legal heirs of Murari Seethamma, adoptive mother. The appellant-petitioner sought for return of the same in Criminal M.P. No. 115/1984 and he was directed by the Court to produce a Succession Certificate. Accordingly the appellant-petitioner applied for a Succession Certificate u/s 372 of the Act.

A general notice inviting objections, if any, was issued and the same was affixed on the Notice Board of the Court and also at a prominent place in the village. It was also published in a Telugu daily Andhra Jyoti. The respondents herein got themselves impleaded as per order in LA. No. 560/1984, dated 22-10-1984 and they filed a counter resisting the petition. It is denied that the petitioner is the adopted son of Murari China Punniah and Seethamma. It is asserted that the alleged Adoption Deed is a fictitious document and it was never acted upon. Their case is that one Tata Punnamma became the legal heir of Murari Punniah and Seethamma and that she is mother of respondent No. 2 and wife of respondent No. 1 and she executed a Will in favour of the respondents. Thus, respondents 1 and 2 have set up a claim for the aforesaid gold ornaments of Seethamma.

During the enquiry, the petitioner examined himself as P.W.I and he also examined Murari Krishna Murthy, a nephew of late Punniah, as P.W.2 to prove the adoption. His wife Murari Bharati is examined as P.W.3. Exs.A-1 to A-7 are marked on behalf of the petitioner. The respondents examined R.Ws.1 to 8 and got Exs.B-1 and B-2 marked. Exs.X-1 and X-2 are also marked.

The learned Additional Sessions Judge scrutinised the above oral and documentary evidence and held that the essential ceremony of giving and taking the petitioner in adoption has not been proved and hence, the petitioner is not entitled for a Succession Certificate. Accordingly the petition has been dismissed. The petitioner, therefore, preferred this appeal assailing the findings of the learned Additional Sessions Judge.

Sri A. Satya Prasad, learned Counsel for the appellant contended that the finding of the lower Court is totally contrary to the evidence on record and that the essential ceremony of giving and taking the petitioner in adoption has been proved and hence, the same is liable to be set aside. He has taken us through the evidence of P.Ws.1 to 3 and contents of Ex.A-1 Adoption Deed and strenuously contended that there can be no doubt about the ceremony of giving and taking the boy in adoption being performed by the natural parents on one hand and the adoptive parents on the other in the presence of all relatives including Village Karnam, who is the scribe of the Adoption Deed. He relied on a judgment of the Supreme Court in Kartar Singh (Minor) through Guardian Bachan Singh Vs. Surjan Singh (Dead) and Others, learned Counsel for the respondents on the other hand contended mat it is well settled that giving and taking ceremony is essential for a valid adoption even among Sudras and that essential ceremony has not taken place as per the evidence on record and hence, the learned Additional Sessions Judge has rightly dismissed the petition.

Before taking up the evidence for reappraisal, it is necessary to examine the scope of an enquiry in a proceeding u/s 372 of the Act. The procedure is laid down u/s 373 of the Act, which reads as under:-

"373. Procedure on application:- (1) If the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing-

(a) to be served on any person to whom, in the opinion of the Judge, special notice of the application should be given, and

(b) to be posted on some conspicuous part of the Court-house and published in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate.

(2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.

(3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.

(4) When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants."

A bare reading of the above provision indicates that it is a summary proceeding. Sub-section (3) contemplates that a certificate has to be granted to the person having prima facie the best title thereto, even if the Court cannot decide the right to the certificate without determining the questions of law or fact which seem to be too intricate and difficult for determination. The High Court of Madras considered the scope and object of Part X of the Act in re, Rajambal Bai, AIR 1955 NUC (Madras) 3943 and held-

"The purpose of the grant of Succession Certificate is not to give the litigant parties an opportunity of litigating contested questions of title to property. The object of the Act (Part X) is to obtain the appointment of some person to give a legal discharge to debtors to the estate for the debts due. It was not intended that nice questions of law as to the rights of the parties to the estate of the deceased should be decided on an application under it.

Consequently, the practice is to issue a certificate to the person who has prima facie the clearest title to the succession, such as the natural heir, and to leave a person, whose claim to a superior title is on reasonable grounds disputed, to establish that title by regular suit."

In Firm of Patnam Lakshminarayana Chetti, represented by Managing Partner, Patnatn Lakshminarayana Chetti v. Grandhe Seshamma and Ors., AIR 1942 Madras 709 it is held-"

".... If there are grounds for entertaining an application but the right to a certificate is contested the District Judge must make an order for the grant of the certificate to one party or the other. u/s 373(2) he can make an order after going into the merits of the case. But u/s 373(2) although again he must make an order he need not determine question of law or fact which are too intricate and difficult for determination in summary proceedings."

The conspectus of the above authorities is that the proceedings u/s 372 of the Act are summary in nature and a certificate will have to be issued to one party or the other. If there are intricate questions which cannot be gone into in a summary proceeding, the party who has prima facie best title should be granted a certificate and the contesting party should be directed to establish his title in a civil Court. In order to protect the interests of the parties, security from grantee of certificate is provided for u/s 375 of the Act. This back drop is to be kept in view while evaluating the evidence on record.

Having regard to the rival contentions and the grounds of appeal, the short question that arises for consideration is whether the appellant is prima facie entitled to grant of Succession Certificate.

The case of the petitioner is that he is the adopted son of the deceased China Punniah and Seethamma. It is not in dispute mat they do not have any issue. The petitioner is the grandson of younger sister of Seethamma. It is in his evidence that adoption was performed according to Hindu rituals and several people witnessed the same. He deposed that himself and his natural parents were called and he was asked to sit on the planks and a purohit performed a Pooja. On the same day Village Karnam drafted the adoption deed and got it registered. The evidence of P.W.2 on this aspect is that P.W.I is the grandson of Venkamma, sister of Seethamma; that Punniah and Seethamma are not blessed with any children and that P.W.I was adopted by them about 34 or 35 years ago. He further deposed that himself and other relatives were invited and he was present along with other relatives at the time of adoption and also when the adoption deed Ex.A-1 was executed. Regarding the ceremony he testified that the natural parents and adoptive parents performed a Pooja which was performed by one Subrahmanyam, Purohit and P.W.I stayed with his adoptive parents for about an year after his marriage and later he went away as he secured a job.

The relevant recitals in Ex.A-1 are as under:-

"......I am not blessed with children so far and there is no possibility of getting any children. Hence, myself and my wife Seethamma desire to adopt one male child for the purpose of continuity of our proginy and for the purpose of performing obsequies and other rights for securing solace to our souls and hence I approached Peta Sivalingiah, who is son of my wife''s sister and resident of Mallepolu of Bandar Taluk and expressed our desire to adopt his second son Subba Rao and requested him to give Subba Rao in adoption. Accordingly the said Sivalingam and his wife Seethamma gave their second son Subba Rao this day and myself and my wife Seethamma together have taken the said Subba Rao in adoption as per religious rights in the presence of one and all and the said Subba Rao will hereinafter will be treated as our son and he will be entitled to all our properties and none of my sharers will have any objection for the same...."

It is evident from the above material that there has been a ceremony of adoption when the adoptive parents expressed desire to take the appellant in adoption and the natural parents gave the boy in adoption and the adoptive parents accepted him. Accordingly, Ex.A-1 adoption deed was drafted by Village Karnam and it was executed by late Murari China Punniah setting out the details of giving and taking ceremony. We, therefore, do not agree with the findings of the lower Court in this regard nor we approve his approach to this case inasmuch as he appears to have held a roving enquiry disregarding the fact that it is a summary enquiry.

In Lakshman Singh Kothari Vs. Smt. Rup Kanwar, it is held-

"Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.

Held on the documentary and oral evidence admitted in the case that the ceremony of giving and taking, which was very essential for the validity of an adoption, had not taken place in this case."

In the Judgment cited supra (1) it is held-

"Where, after the customary law of adoption in Punjab ceased to have effect by virtue of Section 4 of the Act, there was an adoption with the ceremony of giving and taking of the child, but the "adoption Deed", besides referring to the fact of giving and taking of the child, bore the words "according to custom", it must be taken that there was evidence of intention to transfer the child from his natural family to that of adoptive family and the adoption was valid according to law."

We have applied our earnest consideration to the above evidence and the case law and we are satisfied that the petitioner was adopted by the deceased Punniah and Seethamma in accordance with Hindu religious rites.

As against the above material, we shall now examine the case of the respondents. Tata Punnamma was related to the deceased Punnayya as sister. Respondent No. 1 is her grand son and respondent No. 2 is her son. Their case is that being sister of Murari Punniah, Tata Punnamma is his heir and she executed a Will in favour of respondent No. 1. He examined himself as R.W.1 and denied that the petitioner was adopted by Murari Punniah and Seethamma. R.W.2 Murala Potharaju and R.W.3 Kasani Lakshmana Rao stated that nobody was adopted by Punniah and Seethamma. R.W.4 is respondent No. 2 and he corroborated R.W.1. R.W.5 Nemalikanti Venkata Seetharamaiah is the scribe of Ex.B-1 Will propounded by respondent No. 1. He admitted that the scribe of Ex.A-1 adoption deed is his father. R.W.6 Bathina Subba Rao and R.W.7 V. Linga Raju are the attestors of Ex.B-1 Will and R.W.7 is the Junior Assistant in the District Registrar''s Office, who produced the relevant books relating to Ex.B-1 Will and they are marked as Exs.X-1 and X-2. The substance of the above evidence is that Tata Punnamma was the sister of Murari China Punniah and she is mother of respondent No. 2 and grand mother of respondent No. 1 and she executed Ex.B-1 Will Deed bequeathing her property to respondent No. 1. Assuming that their case is true, a sister is not a Class-I heir whereas an adoptive son who has to be treated as a son for all purposes is a Class-I heir. As already indicated above, it is prima facie title that is the criteria for grant of a Succession Certificate. We have adverted to the evidence of P.Ws. 1 to 3 and Ex.A-1 adoption deed and we have no hesitation to hold that the appellant has made out a prima facie case that he is the adopted son of Murari China Punniah and Seethamma. Agreeing with the ratio laid down by Madras High Court cited supra 2 and 3, we hold that the appellant is entitled for grant of a Succession Certificate in preference to respondent No. 1. It is, however, open to respondent No. 1 to establish his title in a civil Court and that suit will have to be decided untramelled by any finding recorded or observation made herein.

For all the reasons given above, we find the point in favour of the appellant. The appeal is, therefore, fit to be allowed.

In the result, the appeal is allowed and the order of the learned Additional District Judge, Krishna, is set aside and consequently (SC) O.P.No. 55/1984 stands allowed and the learned Additional District Judge is directed to issue a Succession Certificate in favour of the appellant as sought for. It is, however, desirable to direct the appellant to furnish security for a sum of Rs. 12,000/- in the lower Court as per Section 375 of the Act. There will be no order as to costs.