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2019 Supreme(Mad) 2830
IN THE HIGH COURT OF MADRAS
C. SARAVANAN, J.
A. Thulasi Kumari - Appellant
Versus
K. Deenadayalan and Ors. - Respondent
C.R.P.(NPD) Nos. 1350 to 1352 of 2014, M.P. No. 1 of 2014, C.M.P. No. 2988 of 2018
Decided On : 30-04-2019
Advocate Appeared:
For the Appellant :R. Srinivas, Advocate
For the Respondent:Hema Sampath, Senior Counsel for R. Meenal, Advocate
Headnote:
Civil Procedure Code,1908 - Order 26, Rule 13 - Hindu Adoption and Maintenance Act, 1956 - Section 16 - Petitioner claims - Appointment an Advocate Commissioner - Court, Chennai shall determine the status of Petitioner as to whether he is entitled to represent the estate of the deceased Plaintiff- Respondents are entitled to raise their respective objection and Defences that are available to them law - Judge shall decide issue independently uninfluenced by the observations made this Order on merits while at same time keep law laid down by Supreme Court and cited on subject Advocate Commissioner served a Notice for conducting Inspection of property - Since Respondent were represented by Counsel Notice was received by him on their behalf - Respondent however could not be served as door was locked –Held, Code also provides that where one of Respondents dies and right sue does not survive against surviving Respondents Court shall an Application made in that behalf cause Legal Representatives of deceased Respondent be made parties and then proceed with case Though Rule does not specifically provide that determination of Legal Representative should precede hearing of Appeal on merits Rule read Rule makes it clear that the Appeal can be heard only after Legal Representatives are brought on record Court in Debt Prasad Devi and others recognized reasoning of the Privy Council Moors Indian Appeals wherein was that although a person who pleads that was adopted is bound to prove his title as adopted son as fact yet from long period during which has been received as an adopted son every allowance for absence evidence to prove such fact was to be entertained and that case was analogous to that in which legitimacy of a person in possession had been acquiesced in for considerable time Petitioner to prove his adoption by way circumstantial evidence and by way of Adoption Deed there is a legal presumption there was adoption if such document is produced - It is open for the Respondents to challenge same in any independent proceeding. Even as per the decision of this Court rendered case back Asst - City Civil Court Chennai to determine question as to whether the Petitioner is indeed the Legal Representative of deceased Plaintiff-A and that of her husband - Petitioner shall therefore file copies of the documents referred to in this Order and produce them before Asst - City Civil Court Chennai along with an Affidavit to substantiate his claim that he is the Legal Representative of deceased Plaintiff-A and that of her husband late - Such exercise shall be carried out latest by Petitioner with one month from date of receipt of copy of this order - Petitions allowed
JUDGMENT :
C. SARAVANAN, J.
1. By this Common Order all the three Civil Revision Petitions are being disposed.
2. These Civil Revision Petitions have been filed by one A. Prakash, who claims to be the adopted son of the Plaintiff viz., A. Thulasi Kumari in O.S. No. 6147 of 2005 before the XVII Judge, City Civil Court, Chennai. After the Preliminary Decree was passed on 2.4.2007, Plaintiff A, Thulasi Kumari died on 2.12.2008.
3. The said Suit was filed by the deceased Plaintiff to partition Family properties amongst six siblings. Respondents 1 to 5 were the Defendants. The 1st Defendant has since deceased, pending disposal of the present Civil Revisions and therefore, the Respondent Nos. 6 to 8 were impleaded and brought on record as Legal Heirs of the 1st Respondent pursuant to an Order, dated 6.12.2017 of this Court.
4. In the said Suit, the 1st & 2nd Respondent filed their Written Statement and objected to the Partition of the Suit Schedule properties while the Respondent Nos. 3 to 5 (Defendant Nos. 3-5) filed their Written Statement stating that they had no objection to the property being partitioned before as prayed for in the Plaint.
5. After the Preliminary Decree was passed on 2.4.2007, the original Plaintiff viz., A. Thulasi Kumari filed I.A. No. 15221 of 2007 under Order 26, Rule 13 of C.P.C., to appoint an Advocate Commissioner to demarcate the Suit Schedule property the into 6 equal shares and for grant of 1/6th share to all the parties in the Suit property. I.A. No. 15221 of 2007 was ordered on 21.1.2008 consequent to which Advocate V. Malleswari was appointed as Advocate Commissioner to inspect the property.
6. On 22.8.2008, the Advocate Commissioner served a Notice for conducting Inspection of the property. Since Respondent No. 3 to 5 were represented by the Counsel, Notice was received by him on their behalf. Respondent Nos. 1 & 2 however could not be served as the door was locked.
7. On 22.8.2008, the Advocate Commissioner filed her Report stating that the property was indivisible. On 28.2.2008, the 5th Respondent (D5) executed a Release Deed in favour of the Plaintiff. Thus, the Plaintiff became entitled to 2/6th share in the Suit Schedule property. Unfortunately, before Preliminary Decree could be passed the Plaintiff died became intestate on 2.12.2008.
8. On 12.5.2009, the deceased Plaintiffs husband R. Adikesavan executed a Deed with the biological parents of the Petitioner in a bid to officially record adoption of the Petitioner by them ostensibly made on 3.9.1989. It records the adoption was made, after observing the formalities and rituals in accordance with the Hindu rites and' custom after performing Datha Homem.
9. The deceased Plaintiff's husband-R. Adikesavan thereafter executed a Settlement Deed, dated 16.6.2009 wherein he transferred one half of the 2/6th undivided share in the Suit property in favour of the Petitioner and recorded transfer of possession to the Petitioner. It was executed under the underlying assumption that the Petitioner is the adopted son of the deceased Plaintiff and her husband R. Adhikesavan.
10. All these documents including the Release Deed were prepared by Mr. K.C. Krishnamoorthy, the original Counsel for Respondent No. 3 to 5 on 25.6.2009. Meanwhile, the deceased Plaintiff's husband R. Adikesavan also died on 25.6.2009.
11. After the death of the deceased Plaintiff's husband on 25.6.2009, the Petitioner herein filed I.A. 18700 of 2009 under Order 22, Rule 3 to implead himself in I.A. No. 15222 of 2007 for passing a Final Decree in the above Suit filed by the deceased Plaintiff.
12. There, the First and the Second Respondent remained absent and were set ex parte. No objection was given by Mr. K.C. Krishnamoorthy as the Counsel for Respondent No. 3 to 5 for impleading the Petitioners.
13. On 31.5.2011, a fresh Warrant was issued to the Advocate Commissioner to determine the Market V
