R. Sakthivel, J. – These Second Appeals are directed against the common judgment and decree dated March 26, 2002, passed in A.S.No.25 of 2001 and A.S.No.43 of 2001 by the ‘learned Subordinate Judge, Mettur’ [henceforth ‘First Appellate Court’ for the sake of brevity] confirming the common judgment and decree dated April 23, 2001 passed in O.S.No.262 of 1991 and O.S.No.68 of 1998, by the ‘learned District Munsif, Mettur’ [henceforth ‘Trial Court’ for the sake of brevity].

2. The appellants no.(1) to (4) herein are the defendants no.(1) to (4) in O.S.No.262 of 1991 and O.S.No.68 of 1998. The respondents herein are the plaintiffs in the said Suits. For the sake of convenience, henceforth, the parties herein will be referred to as per their array in the Suits.

3. The case of the plaintiffs is as follows:

3.1. The suit properties were ancestral properties allotted to R.S. Kandasamy in a partition among his brothers. On and after the said partition, R.S. Kandasamy was enjoying the suit properties. R.S. Kandasamy married the first plaintiff namely, Sivagamiammal according to their caste customs and rituals in the year 1943. Hence, the first plaintiff is the legally wedded wife of Late R.S. Kandasamy. No children were born to the couple. Hence, the first plaintiff and R.S. Kandasamy decided to adopt a son. On December 2, 1981, first plaintiff Sivagamiammal and R.S. Kandasamy jointly adopted the second plaintiff as their son. Thereafter, R.S. Kandasamy passed away on May 2, 1990, at Salem. He was buried in the Suit properties. The second plaintiff, being the adopted son of R.S. Kandasamy performed all the final rites of Late R.S. Kandasamy. After the demise of R.S. Kandasamy, the plaintiffs became the absolute owners of the suit properties and they started enjoying the estate of R.S. Kandasamy.

3.2. The first defendant was a Commercial Tax Officer working in Tondiarpet Division Commercial Tax Office, Madras. His father name is Arockiasamy. Second defendant is the wife of the first defendant. The defendants 3 and 4 are the sons of the defendants 1 and 2. The defendants have no right, title, interest or possession over the suit properties. On May 20, 1990, the defendants came to the suit properties and made attempts to trespass into the suit properties. The defendants are strangers to the suit properties. The plaintiffs with the help of relatives and neighbours rightly prevented the defendants from their illegal attempt to trespass.

3.3. Initially, the plaintiffs filed a Suit for permanent injunction in O.S.No.262 of 1991. Since the defendants created a cloud over plaintiffs’ title, the plaintiffs filed another Suit in O.S.No.68 of 1998 for declaration of title and permanent injunction.

4. The case of the defendants is as follows:

4.1. R.S. Kandasamy executed two separate registered Wills dated December 12, 1986, and February 11, 1987, in favour of the defendants. R.S. Kandasamy passed away on May 2, 1990. Thereafter, the registered Wills came into force and the defendants are in possession and enjoyment of the suit properties. Hence, the defendants alone are the absolute owners of the suit properties. The plaintiffs have no right, title, interest or possession over the suit properties.

4.2. According to the defendants, Arputhammal is the first wife of R.S. Kandasamy, who is no more. Madalai Muthu (first defendant) is the son of R.S. Kandasamy and Arputhammal. The plaintiffs suppressed the said facts intentionally. The defendants are not strangers to the suit properties. The suits filed by the plaintiffs are not maintainable. The plaintiffs did not approach this Court with clean hands. The defendants alone are in possession and enjoyment of the suit properties as owners thereafter. Accordingly, they prayed to dismiss the same.

5. The following issues were framed in O.S.No.262 of 1991 by the Trial Court:

(i)Whether the plaintiffs are title holders of the suit properties?

(ii)Whether the plaintiffs are in possession over the suit properties?

(iii)Whether the plaintiffs are entitled to the relief of permanent injunction?

(iv)To what other reliefs?

6. The following issues were framed in O.S.No.68 of 1998 by the Trial Court:

(i)Whether the Wills dated December 12, 1986 and February 11, 1987 allegedly executed by Late R.S. Kandasamy are valid and binding on the plaintiffs?

(ii)Whether the first defendant is the son of Late R.S. Kandasamy and his first wife Arputhammal?

(iii)Whether the Court fee has been paid correctly?

(iv)Whether the plaintiffs are title holders of the suit property?

(v)Whether the plaintiffs are in possession over the suit property?

(vi)Whether the plaintiffs are entitled to the relief of declaration and permanent injunction?

(vii)Whether the second plaintiff is the adopted son of R.S. Kandasamy and Sivagamiammal?

(viii)Whether the cancellation of adoption deed dated December 11, 1986 is true, valid and binding on the second plaintiff?

(ix)To what other reliefs?

7. Both the suits were jointly tried. Before the Trial Court, in order to prove the case, the plaintiffs examined P.W.1 to P.W.5 and marked Ex-A.1 to Ex-A.38. On the side of the defendants, three witnesses were examined as D.W.1 to D.W.3 and Ex-B.1 to Ex-B.10 were marked. Original served summon in O.S.No.241 of 1991 on the file of Sub Court, Sankari was marked as Ex-C.1 during cross examination of D.W.1. Signature of the first defendant in Ex-C.1 was marked as Ex-C.2 during cross examination of first defendant. To be noted, O.S.No.241 of 1991 was transferred to District Munsif, Mettur and assigned O.S.No.68 of 1998.

8. The Trial Court gave findings that the alleged Wills dated December 12, 1986 and February 11, 1987 were not proved and the first defendant failed to prove that R.S. Kandasamy married Arputhammal and he was the son born to them; that the second plaintiff is the adopted son of R.S. Kandasamy; that the cancellation of Adoption Deed is not true and not binding on the plaintiffs; that the plaintiffs are in possession and enjoyment over the suit properties and are entitled to the relief of declaration. Accordingly, the Trial Court, decreed both the suits as prayed for.

9. Feeling aggrieved with the said judgment and decree, the defendants preferred appeals in A.S.No.25 of 2001 and A.S.No.43 of 2001 before the First Appellate Court and the First Appellate Court concurred with the views of the Trial Court and dismissed both the appeals.

10. Feeling aggrieved with the concurrent findings of the Trial Court and the First Appellate Court, the defendants have preferred these two Second Appeals.

11. This Court, on September 12, 2002, admitted these Second Appeals on the following substantial questions of law:

‘1. When the execution of Ex.B2 Registered Will dated 12.12.1986 is established in accordance with Section 68 of the Indian Evidence Act, 1872 read with Section 63(c) of the Indian Succession Act 1925 and the second respondent examined as P.W.1 has admitted the execution of the Will, whether the courts below are justified in law in not upholding the same, on the basis of surmises and conjectures?

2. When as per Section 16 of the Hindu Adoptions and Maintenance Act of 1956, to prove adoption, it has to be shown that after adoption, adoptee was treated as his son by adopter and that mere placing of registered adoption deed is not sufficient, whether the respondents can claim any right on the basis of Ex.A1 Adoption Deed, which is not proved in accordance with law (vide AIR 1996 Punjab & Haryana 203)?’

Arguments

12. The learned counsel for the appellants/defendants has argued that the second plaintiff is not the adopted son of Late R.S. Kandasamy and Sivagamiammal; that the plaintiffs failed to prove Ex-A.1 – Adoption Deed; that R.S. Kandasamy himself cancelled the alleged adoption by way of Cancellation of Adoption Deed on December 11, 1986 (Ex-B.3); that in these circumstances, the plaintiffs ought to have proved the factum of adoption, but the plaintiffs miserably failed to prove the said factum; and that both the Courts did not consider the evidence properly. Hence, he prayed to allow these Second Appeals.

13. In support of his submissions, learned counsel for the appellants relied on the judgments in Kishori Lal Vs. Mt.Chaltibai [AIR 1959 SC 504 (V 46 C 65)]; K.Srinivasa Iyengar Vs. K.Srinivasan and Another [1973 (2) SCC 327]; Arakhita Swain Vs. Kandhuni Swain [AIR 1983 ORISSA 199]; Kashibai W/o. Lachiram Vs. Parwatibai W/o. Lachiram [1996-1-LW-317]; Smt.Dhanno W/o. Balbir Singh and Others Vs. Tuhi Ram (Died) son of Puran son of Raje and others [AIR 1996 PUNJAB AND HARYANA 203]; Kousalya Ammal Vs. Valliammai Ammal and Another [AIR 1998 Madras 287]; M.Vanaja Vs. M.Sarla Devi (Dead) [AIR 2020 SC 1293]; and T.Tamilarasan Vs. Arokkiasamy [2007 (3) CTC 456].

14. Per contra, learned Senior Counsel for the second respondent has argued that the defendants did not deny the factum of adoption of the second plaintiff and the execution of Adoption Deed (Ex-A.1) in their written statements; that the first defendant is a retired Commercial Tax Officer and he did not establish that R.S. Kandasamy married Arputhammal and he was born to R.S. Kandasamy and Arputhammal. On the other hand, the plaintiffs established that the first defendant was born to Arockiasamy by marking certified copy of Sale Deed (Ex-A.37) and Voters list (Ex-A.38). The third defendant (D.W.1) who is the son of first defendant has clearly admitted the execution of Adoption Deed (Ex-A.1). Further, when the plaintiffs put a suggestion to D.W.2, who is the attestor of Ex-B.2 – Will, that R.S. Kandasamy did not execute the Will and the alleged signature found in Ex-B.2 is not that of R.S. Kandasamy – he has answered that he lacks knowledge of the same. Further, he deposed that he knew about the factum of adoption of second plaintiff only when R.S. Kandasamy cancelled the Adoption Deed. He further argued that once adoption is established, the adoptive parents have no right to cancel the adoption deed. Both the Courts after analysing the oral and documentary evidence concurrently found that the second plaintiff is the adopted son of R.S. Kandasamy and Sivagamiammal and the plaintiffs were in possession and enjoyment of the suit properties. Post the demise of the first plaintiff Sivagamiammal, second plaintiff Karthikeyan is in possession and enjoyment of the suit properties.

Hence, there is no warrant to interfere with the said concurrent findings. Accordingly, he prayed to dismiss both these Second Appeals.

15. This Court has considered the rival submissions and the evidence available on record.

16. The plaintiffs filed a Suit in O.S.No.262 of 1991 before the Trial Court, seeking permanent injunction. The defendants filed written statement denying the title. Hence, the plaintiffs filed another suit in O.S.No.68 of 1998 before the Trial Court, seeking declaration and permanent injunction. The case of the plaintiffs is that the first plaintiff is the wife of R.S. Kandasamy and out of their wedlock, no child was born to them. Hence, R.S. Kandasamy and Sivagamiammal decided to go for adoption. Accordingly, they adopted the second plaintiff as their son. The second plaintiff is none other than the grandson of R.S. Kandasamy’s brother. The plaintiffs have filed the original Adoption Deed along with the plaint.

Factum of adoption

17. Second plaintiff has been examined as P.W.1. During examination, P.W.1 deposed that he has been adopted by R.S. Kandasamy and Sivagamiammal; that on and after the date of adoption, he has been treated as the adopted son of R.S. Kandasamy and Sivagamiammal; that he has performed the final rites of R.S. Kandasamy; that he is none other than the brother’s grandson of R.S. Kandasamy; that after the demise of R.S. Kandasamy, the plaintiffs are in possession and enjoyment over the suit properties. P.W.2 Bharathi is none other than the paternal uncle of P.W.1. In his chief examination, he deposed about the factum of adoption and the execution of Ex-A.1 – Registered Adoption Deed. Further, he deposed that post the lifetime of Sivagamiammal, the second plaintiff is in enjoyment and possession over the suit properties. It is pertinent to extract the relevant portion of Ex-A.1 – Registered Adoption Deed dated December 2, 1981.

Notably, in Ex-A.1 Registered Adoption Deed, R.S. Kandasamy’s wife Sivagamiammal and four others have signed as witnesses, besides the biological parents of the adoptive son, namely Manokaran and Jamuna.

18. P.W.3 to P.W.5 deposed that after the demise of R.S. Kandasamy, the plaintiffs are managing the affairs of the School, which was run by R.S. Kandasamy during his lifetime.

19. The defendants filed written statement in both the suits and they did not deny the factum of adoption and the execution of Adoption Deed (Ex.-A.1). The defendants resisted the suits by stating that R.S. Kandasamy executed a Will dated December 12, 1986 and subsequently, another Will dated February 11, 1987. In short, the third and fourth defendants claim testamentary succession. They did not specifically deny the adoption. In fact, third defendant examined as D.W.1 has admitted the factum of adoption including the execution of Ex-A. 1 – Registered Adoption Deed. The relevant portion extract of the evidence of D.W.1 is as follows:

Since there is no denial of adoption, the defendants impliedly admitted the factum of adoption.

20. On the other hand, the plaintiffs marked Adoption Deed as Ex-A.1. In the Adoption Deed, R.S. Kandasamy and his wife Sivagamiammal, who were the adoptive parents, and Manokaran and Jamuna who were the biological parents of the adoptive son, have signed. Further, in Ex-A.1, it has been stated that the adoption took place in the presence of elders and relatives of both the families. Admittedly, R.S. Kandasamy and his wife Sivagamiammal (first plaintiff) and Manokaran and Jamuna, who are the biological parents of second plaintiff belong to Hindu religion. Hence, the Hindu Adoptions and Maintenance Act, 1956 is the applicable law in this case. It is apposite to extract here Section 16 of the Hindu Adoptions and Maintenance Act, 1956:

’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 presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.’

The Adoption Deed (Ex-A.1) has fulfilled the requisite conditions as per law. Hence, Adoption Deed (Ex-A.1) attracts the presumption under Section 16 of The Hindu Adoptions and Maintenance Act, 1956. The defendants did not rebut the presumption. The Trial Court as well as the First Appellate Court have decided that the second plaintiff is the adopted son of R.S. Kandasamy.

21.The case of the defendants is that R.S. Kandasamy cancelled Ex-A.1 – Adoption Deed vide Ex-B.3. Relevant extract of Ex-B.3 is hereunder:

To be noted, Sivagamiammal is not a party or witness to Ex-B.3 and Sivagamiammal asserted the factum of adoption and Ex-A.1 – Adoption Deed in the plaint.

22. It is evident from the said document that R.S. Kandasamy has executed the Adoption Deed adopting the second plaintiff as his son. This Court is of the view that once the adoption took place, it cannot be cancelled subsequently as per Section 15 of The Hindu Adoptions and Maintenance Act, 1956, which is extracted hereunder:

’15. Valid adoption not to be cancelled.-No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.’

Hence, the adoption is valid. In view of the evidence of P.W.1 and P.W.2 and discussion alluded to supra, this Court concludes that the second plaintiff is the adopted son of R.S. Kandasamy.

Is first defendant is son of R.S. Kandasamy

23. The case of the defendants is that the first defendant’s mother Arputhammal was the first wife of R.S. Kandasamy. However, there is no piece of evidence available on record to show that R.S. Kandasamy married Arputhammal. Admittedly, the first defendant is an educated person and has served as a Commercial Tax Officer. If really R.S. Kandasamy was his father, he could have very well produced his Service Register and School Certificate. Be that as it may, the first defendant himself admitted that in the School records, his father’s name was shown as Arockiasamy. The plaintiffs produced Sale Deed (Ex-A.37) which stands in the name of the first defendant. In the said Sale Deed, the first defendant has been described as son of Arockiasamy. Further, it is evident from the Voters List (Ex-A.38) that the first defendant is the son of Arockiasamy. During cross examination, the first defendant (D.W.1) has admitted the contents of the Sale Deed (Ex-A.37) and the Voters List (Ex-A.38) as true. The defendants relied on Ex-B.4 and Ex-B.7. Ex-B.4 is the letter dated February 2, 1989, said to have been written by R.S. Kandasamy to first defendant wherein R.S. Kandasamy has described Madalai Muthu as ‘dear son’ (md;g[ kfDf;F). Ex-B.7 is the discharge summary dated October 29, 1986 of R.S. Kandasamy. It is typical for public figures like R.S. Kandasamy, who held a prominent position within a political organization to address individuals with terms of endearment such as ‘dear son’ or similar expressions. Therefore, it is possible that R.S. Kandasamy may have addressed the first defendant in this manner. From the discharge summary, it is seen that the first defendant admitted R.S. Kandasamy in the hospital. In the absence of pleadings and proof to show that R.S. Kandasamy married Arputhammal, Ex-B.4-letter written by R.S. Kandasamy to Madalai Muthu and Ex-B.7-discharge summary do not help the case of the defendants. Both, the Trial Court and First Appellate Court concurrently found that first defendant was not the son of R.S. Kandasamy. In view of the above reasons, there is no need to interfere with the said findings.

Testamentary Succession

24. The case of the defendants is that R.S. Kandasamy executed two Wills dated December 12, 1986 and February 11, 1987. In fact, the defendant no.(3) and (4) filed O.S.No.208 of 1991 on the file of Sub Court, Sankari seeking permanent injunction against first plaintiff herein. The said suit was later transferred to District Munsif, Mettur and assigned as O.S.No.162 of 1999 and the same was dismissed as not pressed and the certified copies of the judgment and decree were marked as Ex-A.31 and Ex-A.32 respectively. The said suit was also filed based on the Wills said to have been executed by R.S.Kandsasamy. The suit properties in the present suits and the suit properties in O.S.No.162 of 1999 are one and the same.

25. The defendants filed Ex-B.2 original Will dated December 12, 1986 and the certified copy of the same was marked as Ex-B.9 i.e., Ex-B.2=Ex-B.9. With a view to prove the Will (Ex-B.2), the defendants examined D.W.2 who is one of the attestors of the Will (Ex-B.2). In his cross examination, he deposed as follows:

26. Further, according to the defendants, the last Will was executed on February 11, 1987. However, the same was not produced by the defendants. Hence, both the Courts found that the defendants failed to prove Ex-B.2 as per Section 63 of Indian Succession Act, 1956 read with Section 68 of the Indian Evidence Act, 1872. This Court does not find any illegality or irregularity in the said findings. Moreover, the alleged last Will dated February 11, 1987 executed by R.S. Kandasamy, has neither filed nor proved by the defendants. Hence, this Court is of the considered view that Ex-B.2 Will dated December 12, 1986 and the alleged last Will dated February 11, 1987 are not proved by the defendants.

Possession and Enjoyment

27. After the demise of R.S. Kandasamy, the plaintiffs are in possession and enjoyment over the suit properties. After demise of first plaintiff, the second plaintiff is in possession and enjoyment over the suit properties by paying water tax, electricity charges and property tax etc. To prove their possession, the plaintiffs produced Ex-A.5 to Ex-A.19 and Ex-A.24 to Ex-A.28 (Property tax receipt, electricity consumption charges receipt and water tax receipt etc.). The Trial Court as well as the First Appellate Court after considering the said documents, concluded that the plaintiffs are in possession and enjoyment over the suit properties. This Court is of the view that the said findings is based on the records and there no need to interfere with the said findings.

28.In both the suits, an extent of 12 cents in S.No.85/8, an extent of 26 cents in S.No.85/10 and an extent of 7 cents in S.No.85/18A are described as the suit properties. The case of the plaintiffs is that the suit properties are ancestral properties. An extent of 38 cents comprised in S.No.85/8 and S.No.85/10 were purchased by R.S. Kandasamy vide Ex-B.8 Sale Deed dated January 7, 1951. Hence, the said extent of 38 cents is the self acquired properties of R.S. Kandasamy. The remaining extent of 7 cents in S.No.85/18A might be the only ancestral property among the suit properties. It is relevant to note that no issues were framed as to whether the suit properties are self acquired properties or ancestral properties of R.S. Kandasamy. Further, the Wills have not been proved by the defendants and hence, the question as to whether the suit property is ancestral property or not, does not gain significance. Therefore, this Court shall not delve into the said question.

29. The learned counsel relied on decisions within the factual matrix where adoption had been denied. In this case, as stated supra, the defendants did not deny the factum of adoption and the execution of Ex-A. 1 – Adoption Deed. Therefore, those case laws are not applicable to the facts and circumstances of this case.

30. In view of the concurrent findings rendered by the Trial Court as well as the First Appellate Court, the facts and circumstances of the case, this Court is of the considered view that the second plaintiff is the adopted son of R.S. Kandasamy and after the demise of R.S. Kandasamy, the plaintiffs are entitled to the relief of declaration. The substantial questions of law framed in these Second Appeals are accordingly answered in favour of the respondents / plaintiffs and against the appellants / defendants. There is no merit in these two Second Appeals and accordingly, the appeals must fail.

31.In fine, both the Second Appeals are dismissed. No costs.