By no stretch of imagination, the letters could be relied upon to prove the fact of adoption. The plaintiff examined P.W.4 on her side, to say about the fact that she was with Chellammal during her life time. But, in his cross-examination, he crucifies the contention of the plaintiff by stating that Chellammal remained as a Christian till her last breath and that her funeral ceremonies were conducted by salvation army priest of Ganagagrammam Village and that the plaintiff was also a Christian. The concept of adoption is alien to Christian Law.1
Indian Evidence Act (1 of 1872) – Adoption – Factum of – Contention that plaintiff was adopted by Chellammal – Both were not relatives – Chellammal remained as a Christian till her last breath – Concept of adoption is alien to Christian law – Factum of adoption, not proved – Second appeal dismissed. By no stretch of imagination, the letters could be relied upon to prove the fact of adoption. The plaintiff examined P.W.4 on her side, to say about the fact that she was with Chellammal during her life time. But, in his cross-examination, he crucifies the contention of the plaintiff by stating that Chellammal remained as a Christian till her last breath and that her funeral ceremonies were conducted by salvation army priest of Ganagarammam Village and that the plaintiff was also a Christian. The concept of adoption is alien to Christian Law. Even though the third defendant claims that she was adopted by Chellammal and in case if she does not prove the said allegation that will not clothe the plaintiff with any rights to get reliefs as prayed for. 1
Second Appeal filed under Section 100 of the civil Procedure code against the judgement and decree dated 28-08-1995 made in A.S.No.7 of 1992, on the file of Sub-Court, Nagercoil reversing the judgment and decree dated 19-09- 1991 and made in O.S.No.479/1984 on the file of Principal District Munsif Court, Nagercoil.
!For Appellant ... Mr.L.Madhusudhnana
for M/s.G.R.Swaminathan
^For Defendants ... No appearance.
:JUDGMENT
The allegations in the plaint in brief as follows:- The property originally belonged to one Chellammal daughter of one Marthaal. The said Chellammal's father was brother of the plaintiff's grand mother. The said Chellammal had no issues and she was the only daughter for her father. She died intestate as Hindu on 16.01.1984. She got a divorce decree from the Court. After divorce, she became a Christian and she subsequently professed Hinduism. She adopted the plaintiff while she was one and half years. She brought up the plaintiff and celebrated her marriage. Even during the life time of Chellammal properties were in possession and enjoyment of the plaintiff. The fact of death of Chellammal was not intimated to her by the defendants and others, who are all avaracious to grab her properties. Since the plaintiff is entitled to inherit Chellammal, as her next heir, the suit has been laid for declaration that she is the adopted daughter of Chellammal for declaration of her title to the properties and for recorvery of possession and also for permenant injunction.
2.The averments found in the written statement of the third and the fourth defendants are as folows:-
It is incorrect to state that the father of Chellammal and grandmother of the plaintiff were siblings. Chellammal died intestate. But she was born as Christian and died as such. She was not at all a Hindu. She had never adopted the plaintiff. The plaintiff is not related to Chellammal and she did not live with her. The marriage of plaintiff was celebrated by her mother Thangam in Parappuvilai Village in C.S.I. church. One Alexandar is the father of the plaintiff. Since the plaintiff had no connection with Chellammal, the death intimation was not sent to her. The plaintiff was never in possession of the properties. She is not at all a heir to Chellammal. Hence, the suit has got to be dismissed with costs.
3.The Principal District Munsif, Nagercoil dismissed the suit refusing to grant relief. However, the Sub-Court, Nagercoil allowed the appeal dismissing the suit. Hence, the plaintiff is before this Court.
4.This Court while admitting the second appeal has formulated the following substantial question of law:-
"Whether the lower appellate Court erred in holding that the suit properties will vest with the Governmnet eventhough the appellant is entitled to succeed as heir of Chellammal either under Hindu Law or Indian Succession Act?"
5.Eventhough an answer has to be given for the substantial question of law, however, the learned counsel Mr.L.Madhusudhananan, Advocate on record, appearing for the appellant on behalf of Mr.G.R.Swaminathan, would draw the attention of this Court to some of the merits of the matter with regard to the adoption of the plaintiff by Chellammal. He further contended that the appellate Court has given a finding to the effect that it is an admitted fact that the plaintiff and Chellammal were relatives and that since Chellammal had no issues she was showering love and affection on the plaintiff. However, it is not an admitted fact that the plaintiff and Chellammal were relatives. Exhibit A-1 to A-7 are the letters addressed to the plaintiff by Chellammal. Since she was illiterate, it is stated that the said letters were written on her behalf by P.W.2, who would state that she wrote letters as per the information given by Chellammal, in cross-examination. A question was put to her that the hand- writings in all other letters were different from the handwriting contained in Ex.A-4. While Ex.A-4 is taken for consideration, it could be decided that the person, who has written other letters was not the author of Ex.A.4.
6.By no stretch of imagination, the letters could be relied upon to prove the fact of adoption. The plaintiff examined P.W.4 on her side, to say about the fact that she was with Chellammal during her life time. But, in his cross-examination, he crucifies the contention of the plaintiff by stating that Chellammal remained as a Christian till her last breath and that her funeral ceremonies were conducted by salvation army priest of Ganagagrammam Village and that the plaintiff was also a Christian. The concept of adoption is alien to Christian Law.
7.Even though the third defendant claims that she was adopted by Chellammal and in case if she does not prove the said allegation that will not clothe the plaintiff with any rights to get reliefs as prayed for.
8.The main contention of the learned counsel for the appellant is that the observation of the lower appellate Court that since the plaintiff or the second and third respondents are not heirs to Chellammal, the properties shall vest with the Governmnet by escheat, cannot be sustained. In this regard, he gathers support from a decision of Honourable Supreme Court reported in (1983) 3 S.C.C.118 reported in State of Bihar Vs Radha Krishna Singh and Others, wherein Their Lordships have held that in case the plaintiff has failed to establish his rights to the properties, no conclusion shall be reached directing that all the properties shall be vested with the State Government. The operative portion of the Judgment is as follows:-
"271.Before closing the colourful chapter of this historical case, we would now like to deal with the last point which remains to be considered and that is the question of escheat. So far as this question is concerned, M.M.Prasad,J. has rightly pointed out that as the State of Bihar did not enter the arena as a plaintiff to claim the properties by pleading that the late Maharaja had left no heir at all and, hence, the properties should vest in the State of Bihar, it would be difficult to hold that merely in the event of the failure of the plaintiff's case the properties would vest in the State of Bihar.
272.It is well settled that when a claim of escheat is put forward by the Government the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the Court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Governmnet so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State. In the instant case, the States of Bihar and Uttar Pradesh merely satisfied themselves by appearing to oppose the claims of the plaintiffs respondents. Even if they succeed in showing that the plaintiffs were not the nearest reversioners of late Maharaja, it does not follow as a logical corollary that the failure of the plaintiffs' claim would lead to the irrestible inference that there is no other heir who could at any time come forward to claim the properties."
9.Following the dictum laid down by the Apex Court, it is held that the observation of the lower appellate Court with regard to escheat, as aforestated is hereby set aside.
10.The learned counsel appearing for the appellant also submitted that in spite of interim injunction granted by this Court in favour of the appellant restraining the respondents to alienate the suit properties, they have effected alienations with regard to certain properties. Even though it is subsequent development, this Court need not embark upon the validity of the alienations, since they are hit by lis pendens. The substantial question of law is answered above.
11.For the foregoing reaons, the Judgment and Decree of the lower appellate Court are confirmed excepting its observation with reference to escheat as mentioned above. The appellant is at liberty to initiate further legal proceedings to claim right in the properties in any manner known to law as per other observations contained in the appellate Court Judgment.
12. In the result, the Second Appeal is dismissed. Consequently, connected M.P.s are closed. No costs.
ssm
To
1.The Sub-Judge,
Nagercoil,
2.The Principal District Munsif,
Nagercoil.
Print Page
Indian Evidence Act (1 of 1872) – Adoption – Factum of – Contention that plaintiff was adopted by Chellammal – Both were not relatives – Chellammal remained as a Christian till her last breath – Concept of adoption is alien to Christian law – Factum of adoption, not proved – Second appeal dismissed. By no stretch of imagination, the letters could be relied upon to prove the fact of adoption. The plaintiff examined P.W.4 on her side, to say about the fact that she was with Chellammal during her life time. But, in his cross-examination, he crucifies the contention of the plaintiff by stating that Chellammal remained as a Christian till her last breath and that her funeral ceremonies were conducted by salvation army priest of Ganagarammam Village and that the plaintiff was also a Christian. The concept of adoption is alien to Christian Law. Even though the third defendant claims that she was adopted by Chellammal and in case if she does not prove the said allegation that will not clothe the plaintiff with any rights to get reliefs as prayed for. 1
Madras High Court
Shobana vs Sundararaj on 20 December, 2007
Second Appeal filed under Section 100 of the civil Procedure code against the judgement and decree dated 28-08-1995 made in A.S.No.7 of 1992, on the file of Sub-Court, Nagercoil reversing the judgment and decree dated 19-09- 1991 and made in O.S.No.479/1984 on the file of Principal District Munsif Court, Nagercoil.
!For Appellant ... Mr.L.Madhusudhnana
for M/s.G.R.Swaminathan
^For Defendants ... No appearance.
:JUDGMENT
The allegations in the plaint in brief as follows:- The property originally belonged to one Chellammal daughter of one Marthaal. The said Chellammal's father was brother of the plaintiff's grand mother. The said Chellammal had no issues and she was the only daughter for her father. She died intestate as Hindu on 16.01.1984. She got a divorce decree from the Court. After divorce, she became a Christian and she subsequently professed Hinduism. She adopted the plaintiff while she was one and half years. She brought up the plaintiff and celebrated her marriage. Even during the life time of Chellammal properties were in possession and enjoyment of the plaintiff. The fact of death of Chellammal was not intimated to her by the defendants and others, who are all avaracious to grab her properties. Since the plaintiff is entitled to inherit Chellammal, as her next heir, the suit has been laid for declaration that she is the adopted daughter of Chellammal for declaration of her title to the properties and for recorvery of possession and also for permenant injunction.
2.The averments found in the written statement of the third and the fourth defendants are as folows:-
It is incorrect to state that the father of Chellammal and grandmother of the plaintiff were siblings. Chellammal died intestate. But she was born as Christian and died as such. She was not at all a Hindu. She had never adopted the plaintiff. The plaintiff is not related to Chellammal and she did not live with her. The marriage of plaintiff was celebrated by her mother Thangam in Parappuvilai Village in C.S.I. church. One Alexandar is the father of the plaintiff. Since the plaintiff had no connection with Chellammal, the death intimation was not sent to her. The plaintiff was never in possession of the properties. She is not at all a heir to Chellammal. Hence, the suit has got to be dismissed with costs.
3.The Principal District Munsif, Nagercoil dismissed the suit refusing to grant relief. However, the Sub-Court, Nagercoil allowed the appeal dismissing the suit. Hence, the plaintiff is before this Court.
4.This Court while admitting the second appeal has formulated the following substantial question of law:-
"Whether the lower appellate Court erred in holding that the suit properties will vest with the Governmnet eventhough the appellant is entitled to succeed as heir of Chellammal either under Hindu Law or Indian Succession Act?"
5.Eventhough an answer has to be given for the substantial question of law, however, the learned counsel Mr.L.Madhusudhananan, Advocate on record, appearing for the appellant on behalf of Mr.G.R.Swaminathan, would draw the attention of this Court to some of the merits of the matter with regard to the adoption of the plaintiff by Chellammal. He further contended that the appellate Court has given a finding to the effect that it is an admitted fact that the plaintiff and Chellammal were relatives and that since Chellammal had no issues she was showering love and affection on the plaintiff. However, it is not an admitted fact that the plaintiff and Chellammal were relatives. Exhibit A-1 to A-7 are the letters addressed to the plaintiff by Chellammal. Since she was illiterate, it is stated that the said letters were written on her behalf by P.W.2, who would state that she wrote letters as per the information given by Chellammal, in cross-examination. A question was put to her that the hand- writings in all other letters were different from the handwriting contained in Ex.A-4. While Ex.A-4 is taken for consideration, it could be decided that the person, who has written other letters was not the author of Ex.A.4.
6.By no stretch of imagination, the letters could be relied upon to prove the fact of adoption. The plaintiff examined P.W.4 on her side, to say about the fact that she was with Chellammal during her life time. But, in his cross-examination, he crucifies the contention of the plaintiff by stating that Chellammal remained as a Christian till her last breath and that her funeral ceremonies were conducted by salvation army priest of Ganagagrammam Village and that the plaintiff was also a Christian. The concept of adoption is alien to Christian Law.
7.Even though the third defendant claims that she was adopted by Chellammal and in case if she does not prove the said allegation that will not clothe the plaintiff with any rights to get reliefs as prayed for.
8.The main contention of the learned counsel for the appellant is that the observation of the lower appellate Court that since the plaintiff or the second and third respondents are not heirs to Chellammal, the properties shall vest with the Governmnet by escheat, cannot be sustained. In this regard, he gathers support from a decision of Honourable Supreme Court reported in (1983) 3 S.C.C.118 reported in State of Bihar Vs Radha Krishna Singh and Others, wherein Their Lordships have held that in case the plaintiff has failed to establish his rights to the properties, no conclusion shall be reached directing that all the properties shall be vested with the State Government. The operative portion of the Judgment is as follows:-
"271.Before closing the colourful chapter of this historical case, we would now like to deal with the last point which remains to be considered and that is the question of escheat. So far as this question is concerned, M.M.Prasad,J. has rightly pointed out that as the State of Bihar did not enter the arena as a plaintiff to claim the properties by pleading that the late Maharaja had left no heir at all and, hence, the properties should vest in the State of Bihar, it would be difficult to hold that merely in the event of the failure of the plaintiff's case the properties would vest in the State of Bihar.
272.It is well settled that when a claim of escheat is put forward by the Government the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the Court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Governmnet so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State. In the instant case, the States of Bihar and Uttar Pradesh merely satisfied themselves by appearing to oppose the claims of the plaintiffs respondents. Even if they succeed in showing that the plaintiffs were not the nearest reversioners of late Maharaja, it does not follow as a logical corollary that the failure of the plaintiffs' claim would lead to the irrestible inference that there is no other heir who could at any time come forward to claim the properties."
9.Following the dictum laid down by the Apex Court, it is held that the observation of the lower appellate Court with regard to escheat, as aforestated is hereby set aside.
10.The learned counsel appearing for the appellant also submitted that in spite of interim injunction granted by this Court in favour of the appellant restraining the respondents to alienate the suit properties, they have effected alienations with regard to certain properties. Even though it is subsequent development, this Court need not embark upon the validity of the alienations, since they are hit by lis pendens. The substantial question of law is answered above.
11.For the foregoing reaons, the Judgment and Decree of the lower appellate Court are confirmed excepting its observation with reference to escheat as mentioned above. The appellant is at liberty to initiate further legal proceedings to claim right in the properties in any manner known to law as per other observations contained in the appellate Court Judgment.
12. In the result, the Second Appeal is dismissed. Consequently, connected M.P.s are closed. No costs.
ssm
To
1.The Sub-Judge,
Nagercoil,
2.The Principal District Munsif,
Nagercoil.
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