Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Mad) 2168

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, R. SAKTHIVEL, JJ.
P.C. Vethagiri – Appellant
Versus
P.R. Chittibabu Mudaliar (Decd) – Respondent
O.S.A. No. 167 of 2013
Decided On : 21-03-2024

Advocates:
Advocate Appeared:
For the Appellant : R. Poornima
For the Respondent: T.V. Lakshmanan, T. Dhanasekaran, S. Rajkumar, K.A. Mariappan

The term 'born' in a settlement deed excludes adopted children, and the presumption of adoption under Section 16 of the Hindu Adoptions and Maintenance Act does not apply to deeds executed before the Act's enactment.

Headnote:(A) Hindu Adoptions and Maintenance Act, 1956 - Section 16 - Original Side Rules - Clause XXXIX, Rule (1) - Partition suit - Dismissal of suit regarding properties 'L' & 'M' - Plaintiffs claimed 9/48th share based on family arrangement and settlement deed - Court found that properties did not revert to plaintiffs as the 18th defendant proved adoption - The term 'born' in the settlement deed excludes adopted children - Appeal allowed, suit decreed for partition. (Paras 1, 9, 39)

(B) Adoption - Presumption under Section 16 - Court ruled that presumption does not apply to adoption deeds executed before the Act came into force - The burden of proof lies on the party claiming adoption - The 18th defendant failed to prove adoption. (Paras 25, 30)

(C) Will - Bequest to adopted son - The court held that the bequest was contingent upon proof of adoption, which was not established. (Paras 37, 38)

Facts of the case:
The plaintiffs appealed against the dismissal of their partition suit concerning properties 'L' & 'M', originally settled by Murugesa Mudaliar. The 18th defendant claimed rights as an adopted son, which the plaintiffs contested. The trial court upheld the adoption, leading to the appeal.

Findings of Court:
The court found that the plaintiffs were entitled to partition of the properties as the 18th defendant did not prove his adoption. The dismissal of the suit regarding 'L' & 'M' properties was set aside.

Issues: The main issues included whether the term 'born' in the settlement deed included adopted children and whether the 18th defendant proved his adoption.

Ratio Decidendi: The court ruled that the term 'born' in the settlement deed excludes adopted children, and the presumption under Section 16 of the Hindu Adoptions and Maintenance Act does not apply to deeds executed before the Act's enactment. The 18th defendant failed to prove his adoption.

Result: Appeal allowed; suit decreed for partition.

JUDGMENT :

R. SUBRAMANIAN, J.

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.

1. 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 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/ 1st defendant.

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.

4. 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 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 t