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2011 Supreme(Ker) 159
High Court of Kerala
S.S. SATHEESACHANDRAN
Philips Alfred Malvin
Versus
Y.J. Gonsalvis & Others
S.A.No.375 of 1992 (C)
Decided on : 11-02-2011
For the Appellant :Sri. Siby Mathew, M.S. Manikandan, Advocates.
For the Respondents:M. Ramesh Chander, M.V. Vijayakumar, Advocates.
The central legal point established in the judgment is that the recognition of adoption under personal law, along with the applicability of civil law and international conventions, determines the status of an adopted child and their rights as a legal heir.
Headnote:
Adoption - Partition Suit - Indian Succession Act - Canon Law - Evidence Act - Constitution - Juvenile Justice Act - Guardians and Wards Act
Fact of the Case:
Plaintiff claimed to be the adopted child of George Correa and Jane Correa, seeking a share in the property. Lower appellate court dismissed the suit, stating that Christianity does not recognize adoption. The Apex Court remitted the appeal for hearing and disposal, formulating questions of law.
Finding of the Court:
The court examined whether Christianity recognizes adoption, the appellant's status as a legal heir under the Indian Succession Act, and the presumption of adoption under the Evidence Act. The court also considered constitutional guarantees, international conventions, and proposed adoption laws. The plaintiff failed to prove his claim as an adopted child, and the appeal was dismissed.
Issues: Recognition of adoption under Christianity, appellant's status as a legal heir, presumption of adoption, and applicability of constitutional guarantees and international conventions.
Ratio Decidendi: The court emphasized that the personal law governing the parties did not recognize adoption. It considered the provisions of the Indian Succession Act, Canon Law, Evidence Act, Constitution, Juvenile Justice Act, and Guardians and Wards Act. The plaintiff's failure to prove adoption under the applicable laws led to the dismissal of the appeal.
Final Decision: The appeal was dismissed, and both parties were directed to bear their respective costs.
1. Plaintiff in a suit for partition is the appellant. Preliminary decree passed in the suit upholding his claim for partition and allotting him a share in the suit property was reversed and the suit was dismissed by the lower appellate court in the appeal preferred by the 2nd defendant. Feeling aggrieved, he has preferred this appeal.
2. Plaint schedule property admittedly belonged to late George Correa and his wife Jane Correa, who pre-deceased her husband. Plaintiff claimed that he is the adopted child of the abovesaid George Correa and Jane Correa. Defendants 1 and 2 and another viz., Marvin Correa, who is no more, are the natural children of the abovesaid George Correa and Jane Correa. Defendants 3 to 8 are the wife and children of the aforesaid late Marvin Correa. Pending the appeal before the court below, the 2nd defendant, who along contested the suit, had passed away and her legal representatives brought in are respondents 9 to 11 in this appeal.
3. According to the plaintiff he was adopted by George Correa and Jane Correa on 8.6.1946 at Kannur Holy Trinity Church, and was brought up by them along with their natural children. He being an adopted child, with the natural children he is also a legal heir of Correas, was his case. With the natural children of Correas, he is also entitled to succeed to their estate left behind, the plaint property, and as such, a decree for partition of the property into 4 equal shares and allotting of one such share to him, was applied for in the suit.
4. The 2nd defendant alone resisted the claim for partition disputing the status of the plaintiff as an adopted child of her parents. Though he was treated by her parents and also by the members of the family as a close relation and he was given a lot of encouragement and assistance, according to this defendant, that would not confer on him the status of an adopted child of her parents and thus to claim a share in their estate. There was no valid and legal adoption of the plaintiff by her parents, and even on the date on which the plaintiff claimed of his adoption, his natural father viz., Sri. T.J. Netto was alive and so much so, there could not be a legal adoption of the plaintiff by her parents was the further contention of the above defendant to resist the suit claim for partition.
5. On the pleadings of the parties, the trial court raised the following issues for adjudication:
(i) Whether the plaintiff is the adopted son of George Correa?
(ii) Whether the plaintiff has any right to claim partition of the plaint property?
6. On the materials placed which consisted of Pws.1 and 2 and Exts.A1 to A8 for the plaintiff, but with no evidence, oral or documentary for the contesting defendant, the trial court concluded that the plaintiff is an adopted son of the Correas and as such he is entitled to a share in their properties with the natural children. Accordingly, a preliminary decree was passed directing division of the suit properties into four equal shares and allotting of one such share to the plaintiff.
7. In the appeal preferred by the 2nd defendant, the lower appellate court, after re-appreciating the materials tendered, in the backdrop whether the personal law of the parties, who are admittedly Christians, recognize adoption, expressing the view that it does not, concluded that the claim raised by the plaintiff for partition as an adopted child of the Correas has not been established in the case. In that view of the matter, reversing the decree passed by the trial court, the plaintiff was non-suited. Aggrieved by the dismissal of the suit, the appeal was preferred. This court had earlier set aside the judgment of the lower appellate court and restored the decree of the trial court, allowing the appeal. The judgment of this court was challenged before the Apex Court by the 1st respondent, one among the legal heirs of the 2nd defendant. The Apex Court, after setting aside the judgment of this court, has remitted the ap
