Saroja vs Santhikumar & Ors

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 aforestated

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:

3

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 2

respectively 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 Mudaliar

and 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 Jayasubramanian. Jayasubramanian, the 4 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 Santhilkumar, 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 5 his grandson Santhilkumar 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

Santhilkumar, who was minor at the relevant time.

The said suit was dismissed for the reason that the

trial court did not believe that Santhilkumar 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. 6

8. Being aggrieved by the dismissal of the suit,

Santhilkumar and Saraswathi filed Appeal Suit No. 774

of 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 7 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 automatically

revoked.

10.

On

the

other

hand,

the

learned

counsel

appearing for the original-plaintiffs Santhilkumar and

Saraswathi submitted that the High Court had rightly

reappreciated 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-Santhilkumar and had 8 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 Ratna

Mudliar, father of late Arumugha Mudaliar. We do not

accept the said contention for the reason that no

documentary evidence of whatever type was adduced 9 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 10 joint family properties.

13. So far as adoption of Santhilkumar 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 Santhilkumar as

his son. There was sufficient evidence before the

trial

court to

establish that Santhilkumar 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 11 been registered. The aforestated 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 duly

registered.

15. For the purpose of proving the will, one of 12 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 Kalyanasundaram (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.

16. 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 13 January, 1985, was not a valid will.

17. 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

Santhilkumar was valid and will dated 11th October, 1984

executed 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.

18. For the reasons stated hereinabove, we dismiss

the appeal with no order as to costs. 14

..................J. (Dr. MUKUNDAKAM SHARMA)

.......................J. (ANIL R. DAVE)

New Delhi January 14, 2011.