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2000 Supreme(Mad) 78
High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. K.G. BALA KRISHNAN & THE HONOURABLE MR. JUSTICE K. GOVINDARAJAN
Rabi
Versus
Jasu Leela
L.P.A. No. 5 of 2000 & C.M.P. No. 354 of 2000
Decided On :Decided on: 20-01-2000
R. Sankarasubbu, for Appellant. T.K. Rajeswaran, for the Respondent.
An adopted son is not treated on par with a natural son under the Indian Succession Act, impacting his rights of inheritance.
Headnote:
Adoption - Property Inheritance - Indian Succession Act, 1925, Section 32, 47 - The court discussed the applicability of the Indian Succession Act, 1925, and the rights of inheritance of an adopted son under Hindu Law. It highlighted the distinction between the treatment of an adopted son under the Hindu Succession Act and the Indian Succession Act, emphasizing that an adopted son is not treated on par with a natural son under the latter.
Fact of the Case:
The plaintiff filed a suit claiming to be the legal heir of a deceased, seeking possession of the property. The trial court held in favor of the defendant, who claimed to be the adopted son of the deceased and therefore entitled to inherit the property. The single Judge reversed the decision, leading to the appeal.
Finding of the Court:
The court found that the plaintiff, as the sister of the deceased, was the legal heir and entitled to inherit the property, even if the defendant was an adopted son.
Issues: The main issues were the legal heirship of the plaintiff and the inheritance rights of the adopted son under the Indian Succession Act.
Ratio Decidendi: The court held that under the Indian Succession Act, an adopted son is not treated on par with a natural son and does not inherit the property of the parents by intestate succession.
Final Decision: The appeal was dismissed, affirming the finding of the single Judge.
K.G. BALAKRISHNAN C.J.
1. 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.
2. 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.
3. We heard the appellants 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 appellants 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.
4. 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.
5. The next contention urged by the appellants counsel is that the appellant being an adopted son, is entitled to in
