Rabi vs Jasu Leela

K.G. Balakrishnan, C.J.—The defendant in O.S. No. 5803 of 1983 on the file of the City Civil Court, Madras is the appellant. The first

respondent herein filed the original suit alleging that she is the sister of one Mrs. Bellarmin Moses alias Thangam who was the wife of the deceased

M.K. Moses who died on 21.8.1979. The plaintiffs sister, Mrs. Bellarmin Moses, i.e., the widow of M.K. Moses also died on 18.1.1982. The

deceased M.K. Moses was in possession of the plaint schedule property with the building therein. The appellant alleged that on the death of M.K.

Moses, the property devolved on his widow Mrs. Bellarmin Moses and after her death, the plaintiff being the only legal heir, the property devolved

on her. The plaintiff further alleged that the appellant/defendant was one of the tenants in the said property and was occupying a portion of the

building. The plaintiff alleged that after the death of Mrs. Bellarmin Moses, the defendant claimed that he was the adopted son of the deceased

M.K. Moses and Mrs. Ballarmin Moses and thus he inherited the plaint scheduled property a portion of which was in his occupation. The plaintiff

filed the suit for a declaration to the effect that she is the legal heir of the deceased Mrs. Bellarmin Moses and that she was entitled to get

possession of the plaint schedule property. The appellant/defendant filed a written statement denying the allegations in the plaint. The appellant

specifically contended that he had been living with Mrs. Bellarmin Moses and as her son was doing of the duties of a son and he had never been a

tenant in the house. The appellant contended that as he lived with the deceased as an adopted son, on the death of Mrs. Bellarmin Moses, he

inherited the property. The trial Court framed the issues as to whether the plaintiff was the legal heir of the deceased Mrs. Bellarmin Moses,

whether the defendant is the adopted son of the deceased Mrs. Bellarmin Moses and whether the defendant was a tenant of the property. The trial

Court held that the plaintiff was not the legal heir of the deceased Mrs. Bellarmin Moses and that the defendant being the adopted son of the

deceased, he inherited the property and the plaintiffs suit was dismissed. Aggrieved by the same,. the plaintiff filed A.S. No. 419 of 1987 and the

learned single Judge held that the plaintiff being the sister of the deceased Mrs. Bellarmin Moses, she is the only legal heir of the deceased and even

if the defendant is an adopted son, he will not inherit the property of the deceased Mrs. Ballarmin Moses. This finding of the learned single Judge is

challenged before us.

We heard the appellant''s counsel. The counsel for the appellant contended that even though the parties are Christian, they belonged to Nadar

community and in that community, it is the prevalent custom that the parents would adopt a child as their son and the adopted son is entitled to

inherit the property of the parents and according to the appellant''s counsel, in the instant case, M.K. Moses and Mrs. Bellarmin Moses adopted

the appellant and treated him as their natural son and therefore, he is entitled to inherit the property left by the deceased Mrs. Bellarmin. The

appellant also relied on an affidavit (marked as Ex.B.4) alleged to have been filed by Mrs. Bellarmin while the appellant was seeking an

employment on compassionate ground on the death of the deceased M.K. Moses.

At the outset, we must note that there is no specific plea in the written statement that in the community to which M.K. Moses and Mrs.

Bellarmin belonged, there was a custom of adoption. The only plea is that the appellant was treated as their son by M.K. Moses and his wife Mrs.

Bellarmin. When there is no basis in the pleading, the plea now advanced before us cannot be accepted. Such a plea was not raised by the

appellant before the lower court.

The next contention urged by the appellant''s counsel is that the appellant being an adopted son, is entitled to inherit the property of the

deceased Mrs. Bellarmin. It was argued that even though there is no personal law of adoption for Christians, following the observation made by

the Supreme Court in Lakshmi Kant Pandey Vs. Union of India (UOI), , a Christian can adopt a child and the adopted son can inherit the

property. That is a case where the Supreme Court laid down certain guidelines in the matter of inter-country, adoptions. A reference was also

made to the Adoption of Children Bill 1980, but Parliament has not passed any Act on this subject. The entire guidelines included in the decision

are in respect of inter-country adoptions. It was stated in page 480 regarding the status of the child, that it is essential that in inter-country adoption

child is given the same legal status and rights of inheritance, as if the child had been born to the adoptive parents in marriage. But as long as there is

no personal law governing the situation, it can only be held that the appellant has no right to inherit the property of the deceased Mrs. Ballarmin

Moses, even if it is assumed that he is the adopted son of Mr. M.K. Moses.

The counsel relied also on a decision reported in Anthonyswamy Vs. M.R. Chinnaswamy Koundan by Lrs. and Others, ). That is a case where

a question arose whether the son of the Vanniya Tamil Christians of Chittur Taluk, Kerala who was governed by the Mitakshara School of Hindu

Law was found by the doctrine of pious obligation. It was held that the doctrine of pious obligation is not merely a religious doctrine but it has

passed into the realm of law and the doctrine is a necessary and logical corollary to the doctrine of the right of the son by birth to a share of the

ancestral property and both these conceptions are correlated and the liability imposed on the son to pay the debt of his fattier is not a gratuitous

obligation thrust on him by Hindu Law but is a salutary counterbalance to the principle that the son from the moment of his birth acquires along with

his father an interest in joint family property and therefore it was held that though the Vannia Tamil Christians of the Chittur Taluk are governed as a

matter of custom by the Mitakshara School of Hindu Law, the doctrine of pious obligation is applicable. The said decision is of no assistance to the

appellant.

u/s 32 of the Indian Succession Act, the property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of

the deceased, in the order and according to the rules thereinafter contained in the chapter. As per Section 47 where the intestate has left neither

lineal descendant nor father nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of

them as may have died before him. Here the parties are Christians. Under Hindu Law, an adopted son is entitled to inherit the ancestral property.

Such adoptions are governed by either customary law or by the provision contained in the Hindu Adoptions and Maintenance Act, 1956. Under

Hindu Succession Act, an adopted son is treated as natural son for the purpose of succession of ancestral property whereas under Indian

Succession Act, an adopted son is not treated on par with natural son and he will not inherit the property of the parents by interstate succession. It

is not seriously contended that the plaintiff is not the sister of the deceased Mrs. Bellarmin Moses. Though at the time of the argument, the counsel

for the defendant contended that there is no proof to show that the plaintiff is the sister of the deceased Mrs. Bellarmin Moses, it was not

specifically denied by the appellant in his written statement. It may be noted that the plaintiff gave evidence to the effect that she is the sister of Mrs.

Bellarmin Moses and produced a certificate issued by the Village Administrative Officer (marked as Ex.A.7) to the effect that she is the daughter

of one Rajendra Nadar and that the said Rajendra Nadar has only two daughters, viz., the plaintiff and the deceased Mrs. Bellarmin and the

appellant had only made a vague suggestion to the witness that she was not the sister of Mrs. Bellarmin Moses, but no serious contention was

raised nor any evidence was let in. Lastly, the appellant contended that the plaintiff has not proved title over this property and the deceased M.K.

Moses and his wife never had any title to the property. No such plea was raised in the written statement and the specific plea raised was that he

was the adopted son of M.K. Moses and Mrs. Bellarmin Moses arid therefore, he inherited the said property left by them. The plaintiff in his plaint

has made a specific averment to the effect that the property belonged to the deceased M.K. Moses and it was devolved on his wife and after her

death, the plaintiff inherited the property. In the absence of any plea or evidence to the contra, the learned single Judge was perfectly justified in

accepting the contention of the plaintiff. The plaintiff being the only sister of Mrs. Bellarmin Moses, she is the legal heir to inherit the property as per

Section 47 of the Indian Succession Act and even if the defendant is the adopted son of the deceased M.K. Moses and Mrs. Bellarmin Moses, he

cannot inherit the property left by them. We do not find any reason to interfere with finding of the learned single Judge. Appeal is dismissed.

Consequently, C.M.P. No. 354 of 2000 is dismissed.