Appellants (Appellants/Defendants) v. V.Arjunan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 29.04.2008CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENS.A.No.1227 of 20061.Lalitha2.Malathi3.A.Srinivasan4.A.Prabhu..Appellants(Appellants/Defendants) VersusV.Arjunan..Respondent (Respondent/Plaintiff)PRAYER:Appeal under Section 100 of CPC against the judgment anddecree, dated 25.08.2006, made in A.S.No.575 of 2005, on the file of theII Additional City Civil Court, Chennai, confirming the judgment anddecree, dated 21.02.2005, made in O.S.No.552 of 2002, on the file of theVIII Assistant City Civil Judge, Chennai. For Appellants : Mr.K.SukumaranFor Respondent : M/s.R.T.ShyamalaJ U D G E M E N TThe second appeal has been filed against the judgment and decree,dated 25.08.2006, made in A.S.No.575 of 2005, on the file of the IIAdditional City Civil Court, Chennai, confirming the judgment anddecree, dated 21.02.2005, made in O.S.No.552 of 2002, on the file of theVIII Assistant City Civil Court, Chennai. 2. For the sake of convenience, the parties in the appeal arereferred to as they have been arrayed in the original suit in O.S.No.552of 2002. 3. Originally, one V.Arumuga Naicker was the defendant in the suitin O.S.No.552 of 2002. During the pendency of the appeal in A.S.No.575of 2005, the said Arumuga Naicker had died. Hence, the presentappellants in the second appeal were brought on record as the legalrepresentatives of the deceased Arumuga Naicker by an order, dated23.03.2006. https://hcservices.ecourts.gov.in/hcservices/

4. The legal representatives of the deceased V.Arumuga Naicker,namely, the defendant in the suit O.S.No.552 of 2002 are the appellantsin the present second appeal. The plaintiff, who is the respondentherein, had filed the suit, on the file of the VIII Assistant City CivilCourt, Chennai, praying for the relief of recovery of possession of thesuit property from the defendant and for costs. 5. It is stated by the plaintiff that the house and the landsituate at Door No.61, Venkatesan Ali Street, New Washermenpet, Chennai-81, measuring 3600 Sq.ft, more fully described in the schedule to theplaint, had originally belonged to late Parvathiammal, Wife of RajuNaicker. Parvathiammal and Raju Naicker did not have issues.Parvathiammal had died intestate in the year 1996, leaving behind herhusband Raju Naicker as her legal heir to inherit the schedule mentionedproperty. Raju Naicker had died intestate, on 09.09.2001.5.1 It is the case of the plaintiff that he is the only survingbrother of late Raju Naicker. Thus, the plaintiff is the only legal heirentitled to inherit the schedule mentioned property of his brother lateRaju Naicker. As the sole legal heir, the plaintiff had become theabsolute owner of the suit schedule mentioned property.5.2. The defendant is the son of late V.Venu Naicker, who pre-deceased late V.Raju Naicker. After the death of V.Raju Naicker, thedefendant had illegally occupied the schedule mentioned property andstarted collecting the rents from the tenants therein. The defendantdoes not have any right, title or interest over the schedule mentionedproperty. The defendant is only a trespasser. The plaintiff had issued alegal notice, on 22.10.2001, to the defendant and the tenants to handover vacant possession of the suit schedule mentioned property. Thedefendant had sent a reply notice, on 05.11.2001, stating that he is theadopted son of late V.Raju Naicker.5.3. The plaintiff had stated that the defendant, who is 52 yearsold, could not have been adopted at the age of 46 years. It is for thedefendant to prove that he was adopted by late V.Raju Naicker and thatthe adoption is valid in the eye of law. Further, the defendant hadclaimed that there is a partition deed between V.Raju Naicker and thedefendant. The alleged adoption and the partition deed are also falseand the claims of the defendant regarding the adoption and the partitionare false. The defendant is collecting rents from 16 tenants and therent amount is nearly Rs.5,000/-. Late V.Raju Naicker had never executeda Will as alleged by the defendant, as he was unconscious for more thana year before his death. 6. In the written statement filed by the defendant, the claims andthe allegations made in the plaint have been denied. Prior to the deathof the father of the defendant there was a partition made on 04.10.1999,under a Document No.2856/1999, by which the defendant had been allotted https://hcservices.ecourts.gov.in/hcservices/ a major share and a small portion had been allotted to late V.RajuNaicker. In respect of the extent allotted to him, the father of thedefendant had executed a will, on 25.01.2001, in favour of thedefendant. In view of the documents executed in favour of the defendant,the claim of the plaintiff that he is the only surviving brother of thelate V.Raju Naicker and that he is entitled to inherit the suit propertyis baseless. The defendant had denied the allegations that he is atrespasser in the suit property and that he is illegally collecting therents from the tenants in the suit property. The defendant being inlawful possession and absolute enjoyment of the suit property isentitled to receive the rents from his tenants. The plaintiff ought tohave filed a suit for declaration of title, instead of a mere suit forrecovery of possession. The value of the suit as given by the plaintiffis incorrect and therefore, the suit is liable to be rejected, underOrder VII Rule 11 of Civil Procedure Code, 1908. Since the plaintiff hadfiled a frivolous suit, it is to be dismissed as devoid of merits, withcosts.7. Based on the pleadings, the trial Court had framed the followingissues for consideration:1. Whether the plaintiff alone is entitled to inherit thesuit property after the death of late Thiru.V.Raju Naicker?2. Whether the defendant is an adopted son of Thiru.RajuNaicker?3. Whether the plaintiff is entitled to get recovery ofpossession of the suit property as prayed for?"8. The plaintiff had examined himself as P.W.1 and marked twodocuments as Exs.A1 and A2. The defendant was examined as D.W.1 and hehad marked Ex.B-1. 9. The trial Court had decided issue No.2 in favour of theplaintiff holding that the defendant had not pleaded that he is theadopted son of V.late Raju Naicker, except in the legal notice issued byhim, on 05.11.2001, marked as Ex.B-1, which has also been marked by theplaintiff as Ex.A-2.10. With regard to issues 1 and 3, the trial Court had found thatthe partition between late V.Raju Naicker and the defendant was admittedby the plaintiff. However, the defendant had not produced the partitiondeed or the Will alleged to have been executed in his favour. Unless,the defendant could prove that he is the adopted son of the late V.RajuNaicker, he could not claim any right in the property. A mere admissionby the plaintiff regarding the partition will not give any right to thedefendant in the suit property. Since, the defendant was not a co-sharerin the suit property on the date of the partition, the alleged partitionbetween the owner of the property and the defendant, who was a strangerto the property, will not confer any right on him. Since the plaintiffwas the only surviving legal heir on the date of the death of the late https://hcservices.ecourts.gov.in/hcservices/ V.Raju Naicker, he is entitled to the suit property. Though, thedefendant had disputed the value of the property, no documents wereproduced to show the actual value of the property in question. Since,there was nothing shown by the defendant to prove that the suit had beenundervalued, the assessment of the plaintiff is to be accepted ascorrect. Thus, the trial Court had decided the issues 1 and 3 in favourof the plaintiff and decreed the suit as prayed for, directing thedefendant to deliver possession of the suit property, within a period ofthree months. 11. Aggrieved by the judgment and decree of the trial Court, dated21.02.2005, the defendant had filed an appeal, on the file of the IIAdditional City Civil Court, Chennai, in A.S.No.575 of 2005.12. The defendant had filed the appeal raising various grounds. Itwas stated, inter alia, that the plaintiff was not the only legal heirto inherit the suit property after the death of late V.Raju Naicker. Thedefendant is not claiming any right in the suit property by virtue ofadoption, but only on the basis of the documents executed by late V.RajuNaicker. The plaintiff is not entitled to get a decree without seeking adeclaration of title. The plaintiff had not produced any evidence toshow that he is the sole surviving legal heir of late V.Raju Naicker.The trial Court had erred in decreeing the suit in favour of theplaintiff on the premise that the defendant has no title to the suitproperty. The first Appellate Court had framed the following points forconsideration. "1. Whether the plaintiff is the sole surviving legalheir of Raju Naicker?2. Whether the defendant is the adopted son of RajuNaicker?3. Whether the said Raju Naicker executed a Will infavour of the defendant on 25.1.2001?4. Whether the appeal is allowable or not?"13. While considering the points raised, the first Appellate Courthad found that according to the plaintiff, Raju Naicker andParvathiammal had no issues and as such the plaintiff, being the fullbrother of late V.Raju Naicker, is entitled to the entire property oflate V.Raju Naicker as a class (ii) heir, under the provisions of theHindu Succession Act, 1956. 13.1. On the other hand, the defendant had claimed that he is theadopted son of late V.Raju Naicker that he was entitled to the suitproperty as per the partition deed and the Will. The First AppellateCourt had found that the said documents had not been produced and provedby the defendant to substantiate his claims. https://hcservices.ecourts.gov.in/hcservices/ The first Appellate Court had also considered the contention of thedefendant that the plaintiff had not prayed for the relief ofdeclaration and had merely asked for recovery of possession. Such arelief, as prayed for, is not maintainable in law. On the other hand,it was contended by the plaintiff that when he had pleaded and provedthat he is the sole surviving brother and that he is entitled to inheritthe estate of late V.Raju Naicker as a Clause (ii) heir, there is noneed for him to pray for the relief of declaration. Therefore, the suitfor recovery of possession is maintainable in law. On considering therival claims, the First Appellate Court had come to the conclusion thatthe plaintiff had pleaded in the plaint that he is the only survivingbrother of late Raju Naicker and that he is entitled to inherit theproperty as it has been proved by his evidence, as well as by theadmission of the defendant in his evidence. The defendant had failed toprove his claims by positive and admissible evidence. Thus, the firstAppellate Court had confirmed the conclusions arrived at by the trialCourt. 14. Aggrieved by the judgment and decree of the first AppellateCourt, dated 25.08.2006, made in A.S.No.575 of 2005, the legalrepresentatives of the defendant in the suit O.S.No.552 of 2002 hadfiled the present second appeal, on the following substantial questionsof law:"Whether or not the lower Appellate Court is correct ingranting the decree for recovery of possession without givinga finding that the respondent is the sole surviving legal heirof late Raju Naicker?2. Whether the lower Appellate Court is correct inobserving that there is no need for the plaintiff to seek fordeclaration and the respondent is entitled to file a suit forrecovery of possession, when this defendant has been pleadedin his written statement that the claim of theplaintiff/respondent is without any basis and on the fact ofthe documents executed in favour of the defendant/appellant,the claim of the plaintiff is liable to be rejected."15. The learned counsel appearing on behalf of the appellants hadsubmitted that when the plaintiff had claimed that his brother lateV.Raju Naicker had died intestate leaving the plaintiff as the solelegal heir to inherit his property, the plaintiff ought to have filedthe death certificate of late V.Raju Naicker before he could claim thathe had become the owner of the property. From the admission made by theplaintiff (P.W.1), during his cross examination, he had admitted thatthe death certificate relating to late V.Raju Naicker had not beenfiled. It was also admitted that no legal heir certificate had beenfiled to substantiate his claims. It was further stated by the learned counsel for the appellantsthat the claim of the appellants regarding the issues of is adoption as https://hcservices.ecourts.gov.in/hcservices/ well as the partition had not been specifically challenged. The date onwhich the defendant had entered the suit property had not beendisclosed. While the plaintiff had admitted in his oral evidence thatthe plaint property is worth about 50 to 60 lakhs, the concerned Courtought to have called upon the plaintiff to pay the Court fee, as it wasspecifically pleaded in the written statement filed by the defendant. 17. The learned counsel for the appellants had also pointed outthat in spite of the interim applications filed by the plaintiff inI.A.Nos.15935 to 15938 of 2004, being allowed by the trial Court, on20.10.2004, to condone the delay in filing the documents and to receivethe additional documents, reopen and recall P.W.1, the plaintiff hadfailed to avail the opportunity of marking the required documents. Inspite of such lapse by the plaintiff, the first Appellate Court hadrelied on the unmarked documents and decided the points, raised forconsideration, in favour of the plaintiff. 18. No issue was framed relating to the partition either by thetrial Court, or by the first Appellate Court. Further, there is nofinding by the Courts below that the plaintiff is the sole survivinglegal heir. However, the burden of proof had been shifted on thedefendant to disprove the claims made by the plaintiff, especially, whenthe defendant had not admitted that the plaintiff is the only solesurviving legal heir either, in his pleadings or in his evidence. 19. The learned counsel for the defendants/appellants has relied onthe following decisions in support of his contentions:i) In P.S.Ratna Bai Vs. D.V.Ramanan alias D.Venkataramana Bhatt(1983 TLNJ 203), it has been held as follows:"Party litigant must succeed only on the basis of his owncase and cannot abandon the same and fall back upon the caseof opponent."ii) In Ramasamy Moopanar V. Rathnammal and others (1976 II) MLJ363), it has been held as follows:"Where the suit is for injunction based on possession theplaintiff need not prove title. The question of title is notrelevant for the purpose of considering the eligibility forinjunction prayed for by the plaintiff. The plaintiff isentitled to injunction on the basis of his possession."iii) In Arunachalam Pillai Vs. Ramu Mudaliar (died) and threeothers (1998(II) CTC 146), it has been held as follows:"Jurisdiction of Civil Court to grant relief must bebased on pleadings or admission of defendant – Granting reliefwhich does not flow from plaint or admission of defendant isin excess of jurisdiction of Civil Court." https://hcservices.ecourts.gov.in/hcservices/ iv) In Brahma Nand Puri V. Neki Puri (AIR 1965 SC 1506), it hasbeen held as follows:"In a suit for ejectment the plaintiff has to succeed orfail on the title that he establishes and if he cannot succeedon the strength of his title his suit must failnotwithstanding that the defendant in possession has no titleto the property."20. Per contra, the learned counsel for the plaintiff/respondenthad relied on the following decisions in support of her contentions:i) In V.Ravichandran V. R.Ramesh Jayaram and others (1999(1) MLJ223), it has been held as follows: "Moreover, when there is no registered documentpertaining to adoption under Section.16 of the Act, then theCourt has to be very cautious and extremely alert to guard thepersons against being ensnared by the unscrupulous persons whoindulge in grabbing the properties. Further, as held by theApex Court, the plaintiff has a heavy duty to prove theceremony of adoption, in the absence of any registereddocument to explain to the satisfaction of the conscience ofthe Court regarding such an adoption by producing accounts toshow that there were expenses incurred due to the ceremony ofadoption and by examining the Priest who performed theceremony."ii) In Mahalingam V. Kannayyan and another (1989 (2) MLJ 341), ithas been held as follows:"In this case, the pleadings with regards to custom orprevalent usage in the community of the parties permittingadoption of persons who have completed the age of fifteenyears is totally lacking. Equally so, evidence is lacking.Hence, the adoption of the person over fifteen years of agecould not be sustained on the ground of custom and usage.The implication of Section 16 of the Hindu Adoptions andMaintenance Act 78 of 1956 Act is: if there is any documentpurporting to record an adoption, and it is signed by theperson giving and the person taking the child in adoption andthat document is registered under any law for the time beingin force and it is produced before any Court, the court shallpresume that the adoption has been made in compliance with theprovisions of the Act, unless and until it is disproved, whenSection 16 speaks about compliance with the provisions of theAct, it has reference to the general requirements under theAct with regard to a valid adoption. The general requirementstake in what has been laid down in Section 1C clause (iv)thereof set down the requirement regarding the age of theperson to be adopted as fifteen years, if the conditions asper Section 16 are satisfied, there could be a presumptionalso as to the satisfaction of the requirement of the age https://hcservices.ecourts.gov.in/hcservices/ being fifteen years. But when the admitted position is thatthe age of the person adopted was over fifteen years, then itcould only come under the exception, and the validity of suchadoption could be upheld only when the custom or rangeapplicable to parties permitting the adoption of a person overthe age of fifteen years is proved and established. The simplereason is, with regard to an exception, there could not be apresumption, legal or otherwise, exception is a departure fromthe formal and general requirements. An exception takes thecase from the purview of general requirements. An exceptionmust be proved and it cannot be presumed. When an exception isengrafted in the main part of the provision to the effect thatno satisfaction of certain conditions the general requirementsneed not be invoked, the onus in regard to such exceptionalcondition is on the person who pleads them. An exception mustbe strictly construct. The presumption under Section 16 doesnot cover the same of an exception to the general requirementsof the provisions of the Act. That is how, Section 16 must beconstrued, otherwise, it will tend to anomalous results. Evenif there is no satisfaction of the general requirements,regarding age, court will be called upon to presume theexception. This could not be the intendment of the legalpresumption under Section 16. There must be a plea and proofof the exception under custom or usage spoken to in clause(iv) of Section 10. Unless that is made out, the exceptioncannot rule. There could not be a presumption of such customor usage. Even by a bare reading of section 16, it is notpossible to spell out a theory that it dispenses with pleadingand proof of the case of an exception under Section 10(iv) ofthe Act. As already noted, one of the four qualifications setout in Section 10 of the Act is that the person, who is to beadopted should not have completed the age of fifteen years.If there should be an exception as contemplated in thatclause, certainly, there has got to be a pleading and proof ofthe same. By having resort to Section 16 of the Act, it is notpossible to dispense with the said pleading and proof, section16 has no relevance at all with regard to the exception setforth in Section 10(iv) of the Act."iii) In Jai Singh Vs. Shakuntala (2002(3) SCC 634, it has been heldas follows:"Section 16 of the Hindu Adoptions and Maintenance Act,1956 envisages a statutory presumption that in the event ofthere being a registered document pertaining to adoption therewould be a presumption that adoption has been made inaccordance with law. Mandate of the statute is rather definitesince the legislature has used "shall" instead of any otherword of lesser significance. Incidentally, however, theinclusion of the words "unless and until it is disproved" https://hcservices.ecourts.gov.in/hcservices/ appearing at the end of the statutory provision has made thesituation not that rigid but flexible enough to depend uponthe evidence available on record in support of adoption. It isa matter of grave significance by reason of the factum ofadoption and displacement of the person adopted from thenatural succession – thus onus of proof is rather heavy.Statute has allowed some amount of flexibility, lest it turnsout to be solely dependent on a registered adoption deed. Thereason for inclusion of the words "unless and until it isdisproved " shall have to be ascertained in its properperspective and as such the presumption cannot but be said tobe a rebuttable presumption. Statutory intent thus stands outto be rather expressive depicting therein that the presumptioncannot be an irrebuttable presumption by reason of theinclusion of the words just noticed."iv) In Nagayasami Naidu and others V. Kochadai Naidu and others(1969 ILR MAD 459), it has been held as follows:"The burden of proving an adoption is a very grave andserious one, as an adoption displaces the natural succession."21. Relying on the above decisions, the learned counsel for theplaintiff/respondent had submitted that it is for the defendant to proveby sufficient evidence that he is the adopted son of late V.RajuNaicker. The onus of proof is on the defendant, since he had claimed theright to inherit the property as the adopted son of late V.Raju Naicker,excluding the vested rights of the plaintiff in the suit property as thesole surviving legal heir of late V.Raju Naicker. 22. Further, it is not the case of the defendant that the plaintiffhas surviving sisters who may claim certain rights in the suit property.It was only during the cross examination, the defendant had raised suchan issue and had made a claim that he was the adopted son of late V.RajuNaicker. It was further contented that as a class (ii) heir, theplaintiff alone had the right to inherit the suit property. With regardto the value of the suit it was submitted that the value of the propertyin issue in the suit is to be assessed as it existed on date of thefiling of the suit.23. The plaintiff had no need to seek a prayer for a declaration asthe defendant did not dispute the fact that the plaintiff is the legalheir of the deceased V.Raju Naicker. Since the plaintiff alone wasentitled to inherit the property, as per the provisions of the HinduSuccession Act, 1956, there was no need for the plaintiff to file a suitseeking the relief of declaration. In spite of the fact that theplaintiff had specifically pleaded that he is the sole surviving legalheir of late V.Raju Naicker, the defendant had refuted the claims bymaking evasive statements, stating that the plaintiff did not plead thathe is the sole surviving legal heir of late Raju Naicker. https://hcservices.ecourts.gov.in/hcservices/

24. In spite of the claim made by the defendant, that he was theadopted son of the late V.Raju Naikcer, he had not filed any document tosubstantiate his claim . Though the defendant had also claimed that hehad partition deed in his favour, the said document was also notproduced before the Courts below. When the plaintiff had proved that heis the sole surviving legal heir of late V.Raju Naicker, the burden ofproof had been automatically shifted upon the defendant to disprove thesame.25. In view of the averments made by the learned counsels appearingfor the parties concerned and on a perusal of the documents available,and on analysing the evidence recorded, this Court is of the consideredview that both the Courts below have erred in decreeing the suit asprayed for by the plaintiff, merely on the basis of Ex.A-1, which is thelawyer's notice, dated 22.10.2001, issued by the plaintiff's counsel tothe defendant and the reply notice issued by the defendant, on05.11.2001, marked as Ex.A-2. The same document, dated 5.11.2001 hasbeen marked as Ex.B-1, on behalf of the defendant.26. Both the Courts below have also erred in not framing an issueregarding the claim of partition. Though the Courts below have held thatthe plaintiff is the only surviving brother of late V.Raju Naicker andthat he alone is entitled to inherit the property, it has not been heldthat the plaintiff is the sole surviving legal heir of late V.RajuNaicker. While the defendant had filed a written statement, denying theclaim of the plaintiff that he is the sole surviving legal heir of lateV.Raju Naicker and when the defendant had seriously disputed the titleof the plaintiff, the Courts below ought to have held that the title ofthe suit property is to be decided by way of a suit for declaration oftitle. 27. In spite of the plaintiff filing a suit for recovery ofpossession of the suit property, he has not produced the necessary deathcertificate and the legal heir certificate to show that he is the solesurviving legal heir to inherit the property of late V.Raju Naicker. Thefirst Appellate Court had also gravely erred in looking into thedocuments which were not marked, in spite of the applications inI.A.Nos.15935 to 15938 of 2004 having been filed by the plaintiff andafter the applications had been allowed by the trial Court. Once theplaintiff had failed to mark the necessary documents, the Courts belowought to have drawn adverse inference against the plaintiff in thatregard. Thus, it is clear that both the Courts below have misdirectedthemselves in coming to a perverse conclusion. 28. Though this Court, normally, does not interfere with thefactual findings of the Courts below, in rare cases, they could beinterfered with if the findings of the Courts below are unreasonable andunjust, as held by the Supreme Court in Ramlal and another Vs.Phagua andothers (2005(5) CTC 282). https://hcservices.ecourts.gov.in/hcservices/

29. This Court while dealing with the second appeals under Section100 of the Code of Civil procedure, 1908, could interfere with theconcurrent findings of the Courts below, once it is found that thefindings are perverse or they are not based on the evidence available orthe conclusions have been arrived at without any evidence whatsoever. Inthe present case, both the Courts below have arrived at theirconclusions in such a manner as would lead this Court to conclude thatthe judgment and decree of the Courts below are unsustainable in the eyeof law. 30. In such circumstances, the judgments and decree of the Courtsbelow are set aside and accordingly, the second appeal stands allowed.No costs. Sd/Asst. Registrar/true copy/Sub Asst.RegistrarcshTo1. The II Additional Judge, City Civil Court, Chennai.2. The VIII Assistant Judge, City Civil Court, Chennai.3. The Registrar, City Civil Court, Chennai.4. The Section Officer, V.R.Section, High Court, Madras.+1 cc to Ms.R.T.Shyamala, Advocate, SR.No.25628.+1 cc to Mr.K.Sukumaran, Advocate, SR.No.25603.Bv (co)krd / 16.6.08S.A.No.1227 of 2006