Saroja Vs Santhil Kumar
& Ors.
J U D G M E N T
L ANIL R. DAVE, J.
1.
Leave
granted.
2.
Being
aggrieved by the Judgment delivered in Appeal Suit No. 774 of 1989 dated 25th
June, 2004, by the High Court of Madras, this appeal has been filed by Original
Defendant No. 3 in the suit. The suit filed by present respondent nos. 1 and 2 had
been dismissed and, therefore, the plaintiffs had filed the foretasted appeal,
which has been allowed by the High Court and, therefore, original defendant no.
3 has filed the present appeal.
3.
The
facts giving rise to the present litigation in a nutshell are as under:
4.
Original
Suit No. 57 of 1985 was filed by present respondent nos. 1 and 2 for a
declaration that the properties referred to in Schedule `B' and `C' attached to
the plaint, belong to plaintiffs 1 and 2respectively and, therefore, the other defendants,
namely, the present appellant and other respondents be restrained from interfering
with their peaceful possession and enjoyment of the said property.
5.
It
was a case of the plaintiffs that plaintiff no. 2 who was the daughter of late
Arumugha Mudaliarand plaintiff no.1 was the son of plaintiff no. 2,i.e., grandson
of late Arumugha Mudaliar. Arumugha Mudaliar had three children, namely, Mangalam,
Saraswathi and Jaya subramanian. Jaya subramanian, the only son had expired in
1982 and he was survived by Saroja, his widow, the present appellant and
defendant no. 3 in the suit.
6.
As
son of late Arumugha Mudaliar had expired, he had adopted Santhil kumar, his
grand-son, the son of his daughter Saraswathi and plaintiff no. 1, by executing
an adoption deed dated 18th August, 1984, after doing necessary rituals
required to be performed under Hindu Law. Late Arumugha Mudaliar had thereafter
executed a registered will on October 11, 1984, whereby the properties referred
to hereinabove along with other properties had been bequeathed and properties
referred to in the schedule attached to the plaint had been disposed of in
favour of his daughter Saraswathi and his grandson Santhil kumar i.e. the
plaintiffs. Late Arumugha Mudaliar expired on 14th January, 1985.
7.
As
the defendants i.e. present appellant and respondent nos. 3 & 4 were
interfering with or were likely to interfere with the possession of the properties
referred to hereinabove, Original Suit No.57 of 1985 was filed by Saraswathi and
her son Santhil kumar, who was minor at the relevant time. The said suit was
dismissed for the reason that the trial court did not believe that Santhil kumar
was properly adopted by late Arumugha Mudaliar and the properties which had
been bequeathed in the will were ancestral properties and, therefore, late Arumugha
Mudaliar had no absolute right to dispose of the same.
8.
Being
aggrieved by the dismissal of the suit, Santhilkumar and Saraswathi filed
Appeal Suit No. 774of 1989 in the High Court of Madras which has been allowed
and, therefore, the present appeal has been filed by Saroja, widow of the son
of late Arumugha Mudaliar, and defendant no. 3.
9.
Learned
counsel appearing for the appellant mainly submitted that the properties which
had been bequeathed in the will were not self-acquired properties of Arumugha
Mudaliar and that other family members had also a right in the said properties,
as the properties were joint family properties. He, therefore, submitted that
late Arumugha Mudaliar had no right to execute the will and that the will, by
virtue of which the property had been bequeathed, was not a valid will in the
eye of law. Before the Trial Court it was urged that late Arumugha Mudaliar had
also executed another will on 13th January, 1985, which was unregistered and
that was a valid will as the said will, being executed latter in point of time,
the will dated 11th October, 1984, stood automaticallyrevoked.
10.
On
the other hand, the learned counsel appearing for the original-plaintiffs
Santhil kumar and Saraswathi submitted that the High Court had right lyre appreciated
the evidence and by reasoned judgment held that the properties in question were
not joint family properties and late Arumugha Mudaliar had validly adopted his grandson-Santhil
kumar and had executed will dated 11th October, 1984, which had been duly
proved and, therefore, the appeal deserved to be dismissed.
11.
We
heard the learned counsel and have gone through both the judgments & the
relevant record.
12.
We
do not accept the submission of the learned counsel appearing on behalf of the
appellant that the properties which had been bequeathed by late Arumugha Mudaliar
under his will dated 11th October, 1984 were joint family properties. The
learned counsel submitted that the said properties belonged to late Shri
RatnaMudliar, father of late Arumugha Mudaliar. We do not accept the said contention
for the reason that no documentary evidence of whatever type was adduced before
the trial court to show that late Arumugha Mudaliar had inherited the
properties referred to in the will dated 11th October, 1984 and that it
originally belonged to late Shri Ratna Mudliar, father of late Arumugha
Mudaliar. No documentary evidence or revenue record showing ownership of late
Shri Ratna Mudliar was produced before the trial court. In absence of such an evidence,
in our opinion, the High Court rightly came to the conclusion that the
properties which stood in the name of late Arumugha Mudaliar, belonged to him
and no other family member had any right therein, as the said properties did
not belong to the family. We, therefore, agree with the conclusion arrived at
by the High Court that the properties in question were not joint family
properties.
13.
So
far as adoption of Santhil kumar is concerned, in our opinion, the said
adoption had been duly established before the trial court. Late Arumugha Mudaliar
had followed the rituals required as per the provision of Hindu Law while adopting
Santhil kumar ash is son. There was sufficient evidence before the trial court
to establish that Santhil kumar had been validly adopted by late Arumugha Mudaliar.
Kandasamy (PW-2) had been examined in detail, who had placed on record photographs
taken at the time of the ceremony. The said witness had given details about the
rituals performed and the persons who were present at the time of the adoption
ceremony and the deed of adoption had also been registered. The afore stated
facts leave no doubt in our mind that the adoption was valid. Even photographs
and negatives of the photographs which had been taken at the time of adoption
are forming part of the record. In such a set of circumstances, we do not find any
reason to disbelieve the adoption. We, therefore, agree with the conclusion
arrived at by the High Court to the effect that the Santhilkumar was legally
adopted son of late Arumugha Mudaliar.
14.
So
far as execution of will dated 11th October,1984 is concerned, the said will had
been dulyregistered.15. For the purpose of proving the will, one of the
attesting witnesses of the will, namely, Umar Datta(PW-4) had been examined. In
his deposition, he had stated that he was present when the said will was being written
by Kalyana sundaram (PW-5). The scribe of the will had also been examined. The High
Court had appreciated the evidence and we have also gone through the relevant record
which clearly reveals that execution of the will dated 11th October, 1984, was
duly proved.
15.
An
effort was made on behalf of the present appellant to propound a will dated
13th January, 1985.The said unregistered will could not be proved and, therefore,
in our opinion, the High Court was right when it came to the conclusion that
will dated 13th January, 1985, was not a valid will.
16.
Looking
to the findings arrived at by the High Court and upon going through the
relevant record, we are in agreement with the conclusion arrived at by the High
Court to the effect that the adoption of Santhil kumar was valid and will dated
11th October, 1984executed by late Arumugha Mudaliar had been proved. In the circumstances,
the High Court has rightly allowed the appeal by setting aside the judgment and
decree of the trial court dated 15th February, 1989.
17.
For
the reasons stated hereinabove, we dismiss the appeal with no order as to
costs.
..................J.
(Dr. MUKUNDAKAM SHARMA)
..................J.
(ANIL R. DAVE)
New
Delhi
January
14, 2011.
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