P.C.Vethagiri Vs P.R.Chittibabu Mudaliar Decd — Partition | Madras HC (2024)

P.C.Vethagiri Vs P.R.Chittibabu Mudaliar Decd — Partition | Madras HC (2024)

O.S.A.No.167 of 2013

THE HIGH COURT OF JUD ICATURE AT MADRAS

Reserved on Delivered on 29.02.2024 21.03.2024

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN AND

THE HONOURABLE MR.JUSTICE R.SAKTHIVEL

O.S.A.No.167 of 2013

1.P.C.Vethagiri 2.P.V.Kumar

3.P.V.Ravikumar

P.V.Saraswathi (died)

...Appellants

Vs.

P.R.Chittibabu Mudaliar (decd)

P.C.Kubendran (decd)

1.P.K.Rajan 2.P.K.Gnanam 3.P.K.Naresh

P.C.Nehru (decd)

4.P.N.Angamma aliasYasodha 5.P.N.Sundari 6.P.N.Sridhar 7.P.C.Nagarathinam 8.P.C.Thanigaivelu 9.P.T.Mahalakshmi 10.P.T.Harinath 11.Kumudhavalli

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12.Vasantha

13.Devika Rani 14.Kumaravelu (died) 15.K.Premakumari 16.K.Balasubramanian 17.J.Lakshmi ...Respondents (R15 to 17 brought on record as LRs of the deceased R14 viz, Kumaravel vide Court order dt.28/2.2020 made in CMP.Nos.4653 & 4660/2020 in OSA/167/2013)

Prayer: Original Side Appeal filed under Clause XXXIX, Rule (1) of the Original Side Rules, r/w. Clause 15 of Letters Patent, against the judgment and decree dated 20.12.2011 made in C.S.No.1253 of 1992.

For Appellants : Mrs.R.Poornima For Respondents : Mr.T.V.Lakshmanan

for R1 to R6 & R8 to R10

Mr.T.Dhanasekaran for R14, R15 to 17 Mr.S.Rajkumar for R13 - No appearance Mr.K.A.Mariappan for R11 & R12

No appearance R7 - served - No appearance

J U D G M E N T

(Judgment of the Court was made by R.SUBRAMANIAN, J.)

The plaintiffs 1 to 3 in C.S.No.1253 of 1992, a suit for partition are

on appeal, aggrieved by the dismissal of the suit with reference to the properties described in schedules 'L' & 'M' to the plaint. The plaintiff sued 2/30

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O.S.A.No.167 of 2013 for partition and separate possession of their 9/48th share in the suit properties and for allotting the 'C' schedule properties to them as per the family arrangement dated 05.04.1978 and also for division of 'L' & 'M' schedule properties, contending that the suit properties were originally allotted to one Murugesa Mudaliar at a partition between him and his brother that took place on 25.02.1924 and the said Murugesa Mudaliyar died in 1936, leaving behind his only son, P.M.Rathnasabapathy Mudaliar, who also died in 1942.

2.It is claimed that the 'L' & 'M' schedule properties were settled by the said Murugesa Mudaliyar on one P.R.Subramania Mudaliar, who was the illegitimate son of Rathnasabapathy Mudaliar. According to the plaintiffs, as per the said settlement deed the property was settled on Subramania Mudaliar and his wife, Shivabhushanam Ammal just prior to their marriage and it provided that the property shall go to the children born to them. In the event, the said Shivabhushanam Ammal and Subramania Mudaliar died without issues, the properties shall revert back to the other heirs of Murugesa Mudaliar. It is claimed that Rathnasabapathy Mudaliar died leaving behind his son by name Chittibabu/ 1^st defendant.

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O.S.A.No.167 of 2013 3.The plaintiffs 2 to 4 are the sons and daughter of the 1st plaintiff.

The defendants 3 to 5 are the sons of the 2nd defendant. The defendants 7 to 9 are the daughters and son of the 6th defendant. The defendants 12 & 13 are the daughter and son of the 11th defendant. The 14th defendant is the wife of the 1st defendant / Chitti Babu. Defendants 15, 16 & 17 are the daughters of Chitti Babu. Since the 18th defendant, son of one Masilamani Mudaliar claims certain right to the 'L' & 'M' schedule properties as if he is the adopted son of Subramania Mudaliar, the illegitimate son of Rathnasabapathy Mudaliar, he was impleaded as the 18th defendant.

It is the contention of the plaintiffs that though the settlement deed

dated 09.03.1930 marked as Ex.P4 settles the properties found in 'L' & 'M' schedules to the suit to Subramania Mudaliar and his to be wife Shivabhushanam Ammal, the said settlement provides for the reversion of the property to the other heirs of Murugesa Mudaliar, in the event settlees do not have any issues " born " to them. Contending that Subramania Mudaliar and Shivabhushanam Ammal died issueless, the plaintiffs sought for partition of 'L' & 'M' schedules also. Since there is no dispute regarding the claim of the plaintiffs to schedules 'A' to 'K', we are not adverting to the

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pleadings regarding those properties. The 18th defendant also does not

make a claim to the suit schedules 'A' to 'K'. The other defendants, in fact, accepted the claim of the plaintiffs and some of them wanted their shares also to be declared.

5.The 18th defendant alone resisted the suit, contending that the schedule 'L' & 'M' properties do not belong to the joint family, of which, the 1st defendant was shown to be a Kartha. He would contend that, he, being the adopted son of Subramania and Shivabhushanam Ammal, who are settlees under the documents, he would be entitled to inherit those properties and hence the properties did not revert back to the estate of Murugesa Mudaliar.

6.In support of his claim for adoption, the 18th defendant would rely upon the document styled as adoption deed dated 24.06.1967, which was marked as Ex.D1. He would also contend that his adoptive father, when he was alive, had executed a Will dated 25.09.1967 and he has got it probated in O.P.No.779 of 1994 and therefore, as a legatee under the Will, he gets an absolute right over the properties that were settled on Subramania Mudaliar

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and his wife Shivabhushanam Ammal under Ex.P4, settlement deed dated

09.03.1930. According to the 18th defendant, while Subramania and his

wife Shivabhushanam Ammal would get absolute right under the settlement deed dated 09.03.1930 to the 'L' & 'M' schedules, he as the adoptive son of Subramania and Shivabhushanam Ammal would inherit the property that was subject matter of the settlement deed dated 09.03.1930.

7.On the above pleadings, the learned single Judge framed the

following issues:-

"1.Whether the plaintiffs are entitled to partition and

separate possession of 9/48th share in Schedule 'H' properties in the plaint as per family arrangement dated 05.04.1978?

2.Whether the 17th defendant Devikarani is entitled to 1/48

share in the suit properties.

3.Whether the plaintiffs are entitled to allotment of 'C'

schedule property as per the family arrangement dated 05.04.1978?

4.Whether the deed of Revocation dated 07.11.1989 is valid

and binding upon the plaintiffs ?

5.Whether the plaint schedule 'L' and 'M' properties are joint

family properties and are liable for partition ?

6.Whether the defendants 2,6,10,11 and 18 are liable to

render accounts from the suit properties ?

7. What relief are the plaintiffs entitled to ?"

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O.S.A.No.167 of 2013 8.Upon consideration of the pleadings and evidence available on

record and the fact that there was no dispute regarding the shares that the parties are entitled to in schedules 'A' to 'K' and accepting the memorandum of family arrangement dated 05.04.1978, the learned single Judge answered Issues 1 to 3 in the affirmative and Issue No.4 in the negative thus, affirming the allotments made under the memorandum of family arrangement dated 05.04.1978.

9.Addressing Issue No.5, the learned Judge found that in view of the Ex.D1, adoption deed, which is a registered document, which is entitled to a presumption under Section 16 of the Hindu Adoptions and Maintenance Act, it was not open to the plaintiffs to question the adoption of the 18th defendant by Subramania and Shivabhushanam Ammal. On the said conclusion, the learned Judge held that the plaintiffs would not be entitled to share in the 'L' & 'M' schedule of properties. There was also a decree for accounting for the income against defendants 2, 6, 10, 11 & 18. The said decree is not under challenge. The challenge is now restricted to the conclusions of the learned Judge on the validity of the adoption and the interpretation of the term "gpwf;Fk; re;jjp" in Ex.P1, settlement deed.

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10.We have heard Mrs.R.Poornima, learned counsel for the appellants and Mr.T.V.Lakshmanan, learned counsel for the respondents 1 to 6 & 8 to

Mr.T.Dhanasekaran, learned counsel for the respondents 14 to 17, Mr.S.Rajkumar, learned counsel for R13 and Mr.K.A.Mariappan, learned counsel for the respondents 11 & 12. The 7th respondent though served, is not appearing either in person or through counsel.

11.Mrs.R.Poornima and Mr.T.V.Lakshmanan, learned counsel would in unison contend that the settlement deed dated 09.03.1930 executed by Murugesa Mudaliar in favour of Subramania Mudaliar, though confers an absolute right on Subramania and his wife Shivabhushanam Ammal, provides for reversion of the property to the other heirs of the Murugesa Mudaliar in the event Subramania and Shivabhusanam Ammal do not have any children born to them. Interpreting words "gpwf;Fk; re;jjp" as meaning only children born to Shivabhushanam Ammal and not adopted child or children the learned counsel would submit that the 18^th defendant will not be entitled to L & M schedule properties.

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12.The learned counsel would submit that even assuming that the

18th defendant / Kumaravelu is the adopted son of Subramania Mudaliar and Shivabhushanam Ammal, he will not be entitled to property in question. They would also point out that the 18th defendant would claim as the adopted son under the Will said to have been executed by his father, P.R.Subramania Mudaliar on 25.09.1967. They would point out that the said Will was marked as Ex.D2. The said Will provides that the bequest is made to Kumaravelu as he is the adopted son of Subramania Mudaliar and Shivabhushanam Ammal.

13.Contending that the bequest is made in favour of the adopted son as a persona designata and therefore, unless he proves adoption, Kumaravelu cannot take legacy under the Will. In support of this submission, the learned counsel would rely upon the judgment of the Hon'ble Surpeme Court in AL.PR.Rangannathan Chettiar and another Vs. AL.PR.AL.Perikaruppan Chettiar and others reported in AIR 1957 SC Page 815 .

14.The learned counsel would also submit that the deed of adoption

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O.S.A.No.167 of 2013 marked as Ex.D1 is not one evidencing adoption that took place after

coming into force of the Hindu Adoptions and Maintenance Act,1956 and

hence, the presumption enacted under the Section 16 of the said Act would not stand attracted. In support of the said submission, the learned counsel would rely upon the judgment of the learned single Judge of the Orissa High Court in Ranjit Sahu Vs. Nilambar Sahu and Others reported in AIR 1978 Orissa 48 and the judgment of the Full Bench of the Jammu & Kashmir High Court Shamsher Singh Vs. Deputy Custodian General reported in AIR 1973 J&K 89 . Reliance is also placed by the learned counsel on the judgment of the Hon'ble Supreme Court in Addagada Raghavamma and Others Vs. Addagada Chenchamma and Others reported in AIR 1964 SC 136 . Reliance is also placed on the oft quoted judgment of the Hon'ble Supreme Court in Pentakota Satyanarayana and Others Vs. Pentakota Seetharatnam and Others reported in AIR 2005 SC 4362 to buttress the contention that an adoption requires very strong proof and the same cannot be a matter of presumption, since it displaces the original succession to the property.

15.On the above contentions, the learned counsel for the appellants as

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O.S.A.No.167 of 2013 well as the respondents, who are sailing with the appellants would submit that the Trial Court fell in error in applying the presumption under Section 16 of the Hindu Adoptions and Maintenance Act,1956 to uphold the adoption of 18th defendant and to dismiss the suit in respect of 'L' & 'M' schedule properties.

16.Contending contra, Mr.T.Dhanasekaran, learned counsel for the respondents would submit that the presumption enacted under Section 16 would apply and the deed of adoption dated 24.06.1967, being a registered instrument produced from proper custody would also be entitled to the presumptions applicable to old document under Section 90 of the Evidence Act. He would further contend that de hors the adoption deed, the Will dated 25.09.1967 executed by Subramania marked as Ex.D2 would also prove the factum of adoption as the 18th defendant has been referred to as the adopted son in the said Will. The fact that this Court has granted probate to the same Will in O.P.No.779 of 1994 is also projected as a determining factor for the correctness of the recitals made under the Will. The learned counsel would also placed reliance on an unreported judgment of the Karnataka High Court in RSA.No.498 of 2007 in respect of the

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O.S.A.No.167 of 2013 contention that the registration deed of adoption executed in the year 1956, recognizing an adoption that took place in 1954 would be entitled to a presumption under Section 16.

17.From the rival contentions, the following points emerge for determination in this appeal.

i) Whether the term " gpwf;Fk; re;jjp " used in the settlement deed Ex.P4 executed by Murugesa Mudaliar in favour of his illegitimate grandson, Subramania Mudaliar would mean and include adopted son also.

ii) Whether the 18th defendant has proved the adoption in the manner required by law.

iii) Whether the presumption enacted under Section 16 of the Hindu Adoptions and Maintenance Act would apply to Ex.D1, adoption deed which was executed in 1967 evidencing an alleged adoption that said to have taken place on 18.04.1943.

iv) Whether the bequest made under Ex.D2, Will would be termed as a bequest to a persona designata or it would take effect as a bequest to Kumaravelu, the 18th defendant even in the absence of proof of adoption.

ON THE POINTS :

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O.S.A.No.167 of 2013 18.Ex.P1, settlement deed executed by Murugesa Mudaliar in favour

of his illegitimate grand son (mgpkhd ngud;), Subramania and his to be

wife is the earliest document relating to suit schedules 'L' & 'M'. Under the said instrument, Murugesa Mudaliar settles the properties, which are shown in schedules 'L' & 'M' to the suit in favour of Subramania Mudaliar, and his would be wife Shivabhushanam Ammal. The said document states that the settlees are entitled to be in enjoyment of the property and use the income therefrom for their sustenance during their life time.

19.The actual dispossession in vernacular is as follows:-

c';fs; tpc&aj;jpy; vdf;F ,Uf;Fk; md;g[ tp!;thrj;jpdhYk;. c';fs; rthc&idf;fhf c';fSf;F xU tpj Provisions-fis bra;J itf;f ntz;Lbkd;fpw jPh;khdk; bfhz;L ,jdoapy; A&B bc&oa{ypy; tpthpf;fg;gl;Jk;. Rkhh; U:gha; 4000/00 ehyhapuk; U:gha; kjpg;g[s;s ,uz;L tPL kidfisa[k; ,e;j Settlement gj;jpu K:ykha; ,g;nghnj c';fSf;F bfhLj;J tpl;L c';fs; RthjPdk; bra;J tpl;oUf;fpwgoahYk; c';fspUth;fSila fypahzk; ,e;j 1930k; tUc&k; khh;r;rp khjk; 10k; njjp jp';fs; fpHik jpdk; fypahzk; Kof;fg;nghfpwgoahYk;. c';fspUth;fspd; fypahzk; Koe;j gpwF nkw;go tPL kidfspy; tug;gl;l Fof;Typ tifawhf;fis eP';fspUtUk; nrh;e;J tNy; bra;Jbfhz;L mg;go tNyhFk; Jifapy; nkw;go tPL kidfSf;Fzlhfpa thpfis brYj;jp nkw;go tPL kidfSf;Fz;lhfpa hpngh;

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tifawhf;fis mg;nghJf;fg;nghJ bra;J nky; fz;l thp hpngh; rpyt[fs; nghf ikj;jJifia eP';fspUtUk; c';fSila $Pt jpirtiuapy; c';fspUth;fspd; rhg;ghl;L rpyt[fSf;F cgnahfpj;Jf;bfhs;s ntz;oaJ/ c';fspUth;fSila $Ptjpirf;F gpwF c';fSf;F gpwf;Fk; Mz; re;jjpfs; xUtuhapUe;jhy; g{uhthft[k;. rk gytuhapUe;jhy; ghfkhft[k; xUf;fhy; Mz; re;jjpapy;yhky; bgz; re;jjpapUe;jhy; mg;bgz; re;jjpfSk; xUtuhapUe;jhy; g{uhthft[k;. gytuhapUe;jhy; rkghfkhft[k; jhdjpl tpf;fpua';fSf;F nahf;fpaijaha; Mz;L mDgtpj;Jf; bfhs;s ntz;oanj jtpu ,d;W Kjy; ehdhtJ vd; $Ptjpirf;Fg; gpwF eP';fs; ,Uth;fshtJ nkw;go tPL kidfis jhdk; tpf;fpiuak; mlkhdk; $hkPd; Kjypa vt;tpj ghujPdKk; bra;a ek;kpy; ahUf;Fk; mjpfhuk; fpilahJ/

20.Heavily relying upon the term "gpwf;Fk; Mz; re;jjp", the learned counsel for the appellants and the other respondents would submit

that "gpwf;Fk; Mz; re;jjp" would not include an adopted son or a daughter. In support of their submission, they would rely upon the judgment of the Hon'ble Division Bench of this Court in Muppidathi Ammal Vs. Muthuswami Pillai and Others reported in AIR 1928 Mad 126 wherein Hon'ble Justice Curgenven, speaking for the Bench, while discussing the word 're;jjp'. observed as follows:-

"1.The first question in this second appeal is as to the meaning to be attached to the word "Santhathi" as used in the 14/30

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compromise Ex.D. whether it includes an adopted as well as a natural born son. There is perhaps a significant difference between the phrasing of Ex.C embodying the provision made by Nainar Pillai in favour of his daughter Piramu Ammal born after the adoption of his son, and Ex D, the compromise now in question, for, in the former, the words used are:

if issue (santhathi) are not born to (or forthcoming from) you, which seems clearly to exclude an adopted son, while in the latter the expression is:

2.The phrase appears to me to be fully compatible with the view that both a natural and an adopted son was contemplated, for there is no doubt that in ordinary Hindu usage expressions signifying "offspring," "progeny", "issue", though in English they are ordinarily restricted to natural children, include children adoption. One would, therefore, expect the word to have been accompanied by some appropriate qualification had it been intended to exclude an adopted son ."

21.The other learned Judge on the Bench, Hon'ble Justice C.V.Ananthakrishna Iyer also concurred with the opinion of the Hon'ble Justice Curgenven and he observed as follows:-

3.I agree. The question that arises for decision in this case is about the proper interpretation to be placed on the

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expression used in Ex.D. 'If the defendant Piramu Ammal left no "Santhathi" the properties should go to the plaintiff (Shanmugha Nainar PIllai).' It is contended by the learned vakil for the appellant that the word 'Santhathi' should be confined to children born of Piramu Ammal, and that the existence of an adopted son of Piramu Ammal would not prevent the property going to the plaintiff. I am unable to accept that contention. The word 'santhathi' though a Sanskrit word is also in general use among people who use Tamil. This question whether the word 'Santhathi' is wide enough to include adopted son, arose for decision in the case Balasubramania Pillai V. Picha PIllai (1916) M.W.N. 306, and I agree with Sankaram Nair, J. that the word in general use is wide enough to include adopted son also. Justice Seshagiri Aiyar would seem to go further and would seem to be of the opinion that the word means "the heir in general" see Raja of Ramnad V. Sudnara Pandia Swami Thevar(AIR1915Mad664). If the context clearly shown that the word was not used in its ordinary sense, the question might be different. In the present case, I am not able to say that the context justifies us in placing a different construction. On the other hand, turning to Ex 0 under which Nainar Pillai settled the properties on his daughter Piramu Ammal, we find the expression used is : if no 'santhathi' be born to you ."

22.Reliance is also placed on the dictionary meaning assigned to

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words 're;jjp'. The learned counsel would contend that while the words

're;jjp' by itself would take within its sweep an adopted son, if it is qualified by a prefix or a suffix which would indicate an exclusion of an adopted son, then an adopted son will not take the property as a heir.

23.Drawing our attention to the contents of the settlement deed EX.P4 dated 09.03.1930 extracted supra, the learned counsel would contend that the settlor had used a specific expression "c';fSf;F gpwf;Fk; Mz; re;jjpfs;", meaning there by the word 're;jjp' is qualified by the word "gpwf;Fk;" occurring as a prefix.

24.Drawing our attention to the observation of the Division Bench in Muppidathi Ammal Vs. Muthuswami Pillai and Others reported in AIR 1928 Mad 126, the learned counsel would submit that the Division Bench had held that the term, if issue are not born to you would exclude an adopted son. As a coralery, if the word re;jjp is qualified by the word gpwf;Fk; in the case on hand, it would also exclude an adopted son. Unfortunately, we find these contentions were not adverted to by the learned Judge when he decided on the validity of the adoption alone. We therefore, find that even

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O.S.A.No.167 of 2013 assuming adoption to be true, Kumaravelu / 18th defendant would not qualify as a heir "born" to Subramania and Shivabhushanam Ammal in order to inherit their property under settlement deed dated 09.03.1930 marked as Ex.P4. Therefore, Point No.1 framed for determination is answered in favour of the appellants.

Point No.2 & 3:-

25.These points can be disposed of together since they are interconnected. The learned Judge had upheld the adoption on the ground that it is evidenced by Ex.D1, the deed of adoption. The said document, though registered, evidences an adoption that had took place on 18.04.1943. The learned counsel for the appellants would vehemently contend that this document by itself cannot be taken as proof of adoption more so, when adoption is denied. Our attention is drawn to Section 16 of the Hindu Adoptions and Maintenance Act, 1956, which reads as follows:-

" 16. Presumption as to registered documents relating to adoption.—

Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall

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O.S.A.No.167 of 2013 presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."

Section 16 provides that on production of a registered instrument purporting

to record an adoption made which is signed by the person giving and the person taking the adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. While the learned counsel for the 18th defendant would vehemently contend that Section 16 will apply to Ex.D1, adoption deed, the learned counsel appearing for the appellants and the other respondents would submit that Section 16 will apply only to documents evidencing adoption made after coming into force of the Act.

26.Reliance is placed on the language, particularly, the later portion of the Section which provides that the presumption is to an adoption having been made in compliance with the provisions of Hindu Adoptions and Maintenance Act and not otherwise. Therefore, the learned counsel would submit that the learned Judge erred in attaching presumption enacted under Section 16 to the said instrument of adoption. It is also pointed out that the document does not satisfy the requirements of Section 16 also.

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O.S.A.No.167 of 2013 27.Though it is executed by Subramania Mudaliar, the adoptive father

the natural father has not signed the document as an executant but he has

signed as a witness. The learned counsel for the appellants would rely upon the judgment of the Full Bench of the Jammu & Kashmir High Court in Shamsher Singh Vs. Deputy Custodian General reported in AIR 1973 J&K 89 and the judgment of the single Judge of the Orissa High Court, Hon'ble Justice Ranganath Mishra as he then was, in Ranjit Sahu Vs. Nilambar Sahu and Others reported in AIR 1978 Page 48 in support of their submissions.

The Full Bench Jammu & Kashmir High Court which has been followed by the Orissa High Court as on an interpretation of provisions of Section 16 held that a registered document evidencing a adoption made prior to coming into force of the Hindu Adoptions and Maintenance Act, 1956 will not be entitled to a presumption under Section 16 of the Act. The opinion of the Full Bench was expressed in the following terms:-

"9.....The contention of the learned counsel for the petitioner that there was a registered deed of adoption in favour of the petitioner which created a presumption in favour of adoption under Section 16 of the Hindu Adoptions and

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Maintenance Act 1956 and that therefore the courts below had committed a legal error in this regard is devoid of merit in as much as Section 16 can have no application to the present case. A presumption under Section 16 of the Act can be raised if the adoption is made under the Act. Here the petitioner is alleged to have been taken in adoption six years before the execution of the deed of adoption and before the Act came into force. According to Section 5 of the Act all such adoptions as are made after the commencement of the Act are to be regulated by the Act. It is only in respect of those adoptions made after the commencement of the Act that presumption under Section 16 of the Act can be drawn. But, as pointed out above, the alleged adoption in the instant case was made in the year much before the Act came into force, therefore no such presumption can be drawn under Section 16. This is also in view of Section 30 of the Act which provides that nothing contained in the Act shall affect any adoption made before commence of the Act and vlidy and effect of any such adoption shall be determined as if this Act had not been passed."

29.We do not see any reason to take a different view on the language

of Section 16 and we are in respectful agreement with the view expressed by the Hon’ble Full Bench. We therefore, conclude that the learned Single Judge

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O.S.A.No.167 of 2013 was not right in applying the presumption under Section 16 to Ex.D1, adoption document. The judgment of the learned single Judge of the Karnataka High Court relied by the learned counsel for the 18th defendant does not consider the language of Section 16 when it applied presumption to the document executed prior to coming into force of the Act. The learned Judge of the Karnataka High Court merely applied the presumption under Section 16 to a document executed in 1954. We are therefore, not inclined to accept the said judgment as a precedent to the preposition that even document executed prior 1956 would be entitled to presumption enacted under Section 16 of the Hindu Adoptions and Maintenance Act, 1956.

30.The learned counsel for the 18^th defendent would submit that presumption under Section 90 regarding documents that are 30 years old would apply to the Ex.D1, since it is more than 30 years old and it has been produced from proper custody. The submissions of the learned counsel overlooks the extent of presumption that could be drawn under Section 90. It is settled law, the presumption under Section 90 would not extend to the contents of the document. The presumption is only with reference to the execution and attestation of the document and nothing beyond that. While

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O.S.A.No.167 of 2013 the presumption under Section 90 may dispense with the proof of execution of the instrument, it would not dispense with the proof of contents of the instrument. Once it is held that the presumption under Section 16 of the Hindu Adoptions and Maintenance Act would not apply to Ex.D1, the adoption deed, there is no presumption of the adoption as such therefore, it was for the 18th defendant to have proved the adoption by independent witness more so, when it is sought to be denied.

31.In fact, when the suit was filed in the year 1992, Subramania was alive and hence, the properties covered by 'L' & 'M' schedules were not made part of the suit. Only after the death of Subramania on 07.01.1994, the plaint was amended and these properties were included in the schedule and the 18th defendant who claimed as the adopted son was impleaded as a party on 17.10.1997 by order made in A.No.1237 of 1997. Therefore, the 18th defendant has not made any attempt to prove the adoption by any other independent evidence, except Ex.D1, the adoption deed. No attempt has been made to examine any of the descendant of the adoptive father, Masilamani Mudaliar to prove adoption.

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O.S.A.No.167 of 2013 32.No doubt, the adoption is said to have been taken place in 1943,

finding direct evidence to prove the evidence may be difficult but, at the same time, the 18^th defendant should have at least produced some evidence to show that he was shown as an adopted son of P.R.Subramania Mudaliar in any other document or records. No attempt has been made in that direction also. The Will said to have been executed by Rathnasabapathy Mudaliar in the Month of February, 1937 has been produced along with the typed papers. But, we do not find that the said Will has been produced before the Trial Court and therefore, we can not look into the said Will as it not made part of the records. In the light of the above, we find that Ex.D1 is not entitled to the presumption created under Section 16 of the Hindu Adoptions and Maintenance Act,1956 and the 18th defendant has not proved the adoption in the manner known to law.

Point No.4:-

33.The next contention is that under Ex.D2, Will dated 25.09.1967. Subramania Mudaliar had bequeathed L&M schedule properties in favour of the 18th defendant and therefore, he would take as a legatee under the said instrument. Reliance is placed on the fact that probate has been granted to

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the said Will in O.P.No.779 of 1994. At the outset, we would like to point

out that grant of probate only means that the execution of the Will has been proved, it does not determine the correctness of the recitals in the instrument.

34.We shall now advert to the contention of the learned counsel for the appellant and the other respondents based on the judgment of the Hon'ble Supreme Court in AL.PR.Rangannathan Chettiar and another Vs. AL.PR.AL.Perikaruppan Chettiar and others reported in AIR 1957 SC Page 815.

35.Before going into the legal issue, we shall extract the bequest made in the Will. The testator makes the following recital in respect of the

bequest:-

"vd;Dila $Ptpajirf;Fg; gpwF V/ brl;oa{ypy; brhy;ypa xd;W Kjy; MW tiuapy; cs;s Il;l';fspy; cs;s tPL kidfis vd;Dila !;tPfhu g[j;jpud; FkuntY Kjypahh; ifg;gw;wp jhdjptpdpka tpf;fpua';fs; Kjypa rfytpj rhrd';fSk; bra;a nahf;fpa Ks;stuha;. g[j;jpu bgsj;jpu ghuk;ghpakha; Mz;L mDgtpj;Jf; bfhz;L FLk;g tpc&akhd fPH;fz;l jh;k fhhpa';fis rhptu Fiwt[ ,y;yhky; fhyhfhyj;jpy; cr;rpjhdrhukhf bra;a flik gl;lth;/"

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O.S.A.No.167 of 2013 Pointing out to the bequest made, the learned counsel for the appellants would submit that the 18th defendant would take the legacy only on proof of

adoption. The learned counsel would also point out that the bequest is not in favour of Kumaravelu but in favour of the adopted son of Subramania Mudaliar. Therefore, according to the learned counsel, unless the adoption is proved, the bequest will not take effect.

36.Our attention is drawn to the following passage in the judgment of the Hon’ble Supreme Court in AL.PR.Rangannathan Chettiar and another

Vs. AL.PR.AL.Perikaruppan Chettiar and others reported in AIR 1957 SC

Page 815:-

" 7. The question as to whether a disposition in such terms is to the person intended therein as a persona designata or by reason of his filling a particular legal status which turns out to be invalid is one of some difficulty and has been considered by the Courts in quite a large number of cases some of which have been cited before us. An elaborate consideration of these various cases cannot finally determine the question that arises in individual cases, which must ultimately depend on its own facts and the terms of the particular document containing the disposition.

It is enough to refer to two cases of the Privy Council

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cited before us, viz., Nidhoomoni D bya v. Saroda Pershad Mookerjee, 2 Ind App 253 (P C) (B) and Fanindra Deb Baikat v. Rajeswar Das, 12 Ind App 72 at p.89 (PC) (C). As pointed out in the first case the question in all such cases is whether the gift of the property by the testator to a person who is referred to as having been adopted is one which is dependent on whether all the requisites of a valid adoption have been complied with or whether it is to a designated person notwithstanding that it was desired and expected that the requisites for a valid adoption were complied with. As pointed out by their Lordships in the second case.

" the distinction between what is description only and what is the reason or motive of a gift or bequest may often be very fine, but it is a distinction which must be drawn from a consideration of the language and the surrounding circumstances. "

"If a man makes a bequest to his wife A.B. believing the person named to be his lawful wife, and he has not been imposed upon by her, and falsely led to believe that he could lawfully marry her, and it afterwards appears that the marriage was not lawful, it may be that the locality of the marriage is not essential to the validity of the gift. Whether is not essential to the validity of the gift. Whether the marriage was lawful or not may be considered to make no difference in the intention of the testator."

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O.S.A.No.167 of 2013 37.After saying so, the Hon'ble Supreme Court on the facts of that

case held that the dispossession therein was not dependent on the proof of adoption. If we are to examine the document in question before us namely, Will Ex.D2 it very clearly shows that the bequest is in favour of the adopted son, Kumaravelu. Even while nominating as an Executor of the instrument, the testator specifically states that my adopted son, Kumaravelu shall be the executor of the document. Therefore, on a reading of the instrument before us, we find that the bequest was initiated to the adopted son and not to Kumaravelu as a persona designata . Kumaravelu, having failed to prove the adoption, he cannot take the legacy as a legatee under the Will.

38.In the light of the above conclusions, all the four points that are framed for determination in the appeal are answered in favour of the appellants and against the 18th defendant, who figures as the 14th respondent in the appeal.

39.In the light of the above answers, the judgment of the learned single Judge dismissing the suit with reference to the 'L' & 'M' schedule properties is liable to be set aside and it is accordingly, set aside. This appeal

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is

is allowed and the suit in C.S.No.1253 of 1992 will stand decreed as prayed

for in its entirety. There will be a preliminary decree for partition as prayed

for in the suit. We direct the parties to bear their own costs, since the legal contentions that had been urged before us do not appear to have been urged before the learned single Judge.

(R.S.M., J.) (R.S.V., J.) 21.03.2024

kkn

Internet:Yes Index:Yes Speaking Nuetral Citation :Yes

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R.SUBRAMANIAN, J. and R.SAKTHIVEL, J.

KKN

O.S.A.No.167 of 2013

21.03.2024

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