COMMON JUDGMENT The facts which are necessary for the purpose of disposing of the above two Appeals are as follows:
2. For the sake of convenience, the parties are referred to as per their rankings in the suit.
3. O.S.No.11 of 1999 was filed by the plaintiff, Chandrasekaran, for a permanent injunction restraining the defendant in the suit, Tmt.Rajeswari, from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property by way of dispossessing him except under due process of law.
4. According to the plaintiff in O.S.No.11 of 1999, he is the adopted son of Ganapathy Naicker and the first defendant in the suit. The plaintiff's mother Parameswari was the sister to Ganapathy Naicker. The parents of Ganapathy Naicker and Parameswari were Pattammal and Srinivasulu Naicker. Parameswari has two sons and the plaintiff is the younger son. The said Ganapathy Naicker and the plaintiff's mother were living in the properties mentioned in the schedule with their family.
5. According to the plaintiff, the suit property was originally purchased by his grand-mother Pattammal under a Sale deed dated 2.11.1958 out of the amount received by her and Ganapathy Naicker from the G.P.F. accumulations of Srinivasulu Naicker, the husband of Pattammal. Srinivasulu Naicker died on 9.1.1958. From the date of purchase, the suit properties were in possession and enjoyment of Pattammal and her son Ganapathy Naicker. After the death of Pattammal, Ganapathy Naicker was in possession and enjoyment of the same till his death. As the adopted son of Ganapathy Naicker, the plaintiff was also living with him in the property. The marriage of the plaintiff was arranged and celebrated by Ganapathy Naicker only. After the marriage, the plaintiff was living separately with his family in item No.1 of the suit schedule property. According to the plaintiff, as Ganapathy Naicker was suffering from nervous disorder and as there was no possibility of getting any child, he was adopted as his son. After the death of Pattammal, on 21.8.1973, the plaintiff's mother did not claim any share in her mother's properties as her son (the plaintiff) was adopted by her brother Ganapathy Naicker. Further, there was a good relationship that was maintained by all the parties including the plaintiff's mother, her brother and her brother's wife i.e. the defendant in the suit.
6. It is the further case of the plaintiff that Ganapathy Naicker gave the house bearing door No.35A, Chinnamanikara street absolutely to him after the death of Pattammal (item No.1 of the suit schedule property). During the lifetime of the plaintiff's mother, the defendant did not give any trouble and after the death of the plaintiff's mother in July 1996, the defendant developed hostile attitude towards the plaintiff. She further attempted to sell the suit schedule properties to third parties by claiming that the plaintiff is not the right person to claim and he has no rights in the property. The defendant went to the extent of creating false documents and also to dispossess the plaintiff from the suit property. Therefore, the plaintiff sent a notice on 25.04.1997 to the defendant, but, the defendant did not send any reply even though notice was acknowledged by her. The plaintiff claims that he has got half share in the suit property as the adopted son of the deceased Ganapathy Naicker. If the defendant alienates or creates documents encumbering the suit property, his interest would suffer. Hence, the plaintiff filed the suit in O.S.No.11 of 1999 for the above said relief.
7. This suit was resisted by the defendant by filing a written statement, wherein the defendant denied that the plaintiff is the adopted son of the defendant and her husband Ganapathy Naicker. According to the defendant, she and her husband Ganapathy Naicker were living in Item No.2 of the suit property and the plaintiff's mother Parameswari was living as a tenant in item No.1 of the suit property. The defendant further stated that the suit property was not purchased from the G.P.F. accumulations of Srinivasulu Naicker by Pattammal. Pattammal purchased the property out of her own funds. The death benefits of Srinivasulu Naicker were utilised for the welfare of Ganapathy Naicker. The defendant further claimed that during her lifetime, Pattammal executed a registered Settlement deed dated 13.7.1962 in favour of her son Ganapathy Naicker in respect of the suit property. Pattammal had given her daughter Parameswari in marriage to Venugopal Naicker with presents and gifts and that is why Pattammal did not give any share in the property to her daughter. Pattammal expected her son Ganapathy Naicker to have his own children and in anticipation of that, she settled the suit property in the name of her son. The defendant further stated that the plaintiff has been living in item No.1 as a tenant only after the demise of his mother and he has no title at all to item No.1 of the suit property. After the death of Parameswari, the plaintiff started claiming a right in the properties and in fact he started keeping the rents collected from the tenants for himself and without handing over the same to the defendant. Therefore, she objected to the plaintiff's conduct and asked him to vacate the item No.1 of the suit property. Only thereafter, the plaintiff issued a notice on 25.4.1997 claiming the right in the suit property, for which, the defendant issued a reply dated 18.6.1997. As the defendant is the true owner of the suit schedule property, the relief of permanent injunction could never be granted to the plaintiff. Hence, she prayed for the dismissal of the suit.
8. When O.S.No.11 of 1999 was pending on the file of the Additional District Judge (Fast Track Court No.1), Chengalput, the very same plaintiff filed another suit in O.S.No.34 of 2000 for the relief of partition and separate possession of the suit schedule properties into four equal shares by metes and bounds. In the latter suit, 32 properties are shown in the schedule and properties No.24 and 25 are the very same properties which are item Nos.1 and 2 of the suit schedule property in the previous suit, namely O.S.No.11 of 1999.
9. In O.S.No.34 of 2000 also, the plaintiff narrated the facts in the same manner as was done in the previous suit. He further stated that in the properties standing in the name of Srinivasulu Naicker and Pattammal, their son Ganapathy Naicker and their daughter Parameswari Ammal (mother of the plaintiff), each were entitled to half share. After the death of Ganapathy Naicker, his wife Rajeswari Ammal is entitled to half share and the plaintiff is entitled to the other half share of the property inherited by his mother Parameswari Ammal. Therefore, according to the plaintiff, he is entitled to 3/4th share in all the properties mentioned in the schedule and the defendant Rajeswari Ammal was entitled to 1/4th share. As Rajeswari Ammal maintained a hostile attitude, it was no longer possible for the plaintiff to continue the joint possession. Therefore, he issued a notice on 16.12.1999 to the defendants in the suit. The first defendant Rajeswari Ammal and the third defendant Thiagarajan received the notice, but, the first defendant alone sent a reply on 22.01.2000 containing false allegations. In fact, the first defendant stated that she appointed one Kuppan, son of Govindarajan, as her Power Agent on 18.01.1999 (the second defendant), in respect of the properties mentioned in 'C' schedule. She further alleged in the reply that A and B schedule lands were sold away during the lifetime of Pattammal. Therefore, he filed the second suit in O.S.No.34 of 2000 for partition and separate possession.
10. Kuppan, the Power Agent of Rajeswari Ammal filed a written statement wherein it was stated that Ganapathy Naicker alone was the heir of Srinivasulu Naicker. It was further stated that Pattammal purchased the suit 'C' schedule properties in her name and out of her own funds by selling the jewels and other amounts which were made available to her. Whatever money left behind by her husband were utilised by Pattammal for the medical treatment of her son Ganapathy Naicker. Therefore, Pattammal was the absolute owner of the suit 'C' schedule properties and she enjoyed the property in her own right. It was also denied that the plaintiff was the adopted son of Ganapathy Naicker and there was no such adoption at any point of time as claimed by the plaintiff. In this suit also Rajeswari Ammal took the stand that the plaintiff's mother was a tenant and thereafter, the plaintiff is residing in the same house as a tenant. Since the plaintiff is working in the Police Department, he used to threaten the first defendant Rajeswari. It is further stated that Pattammal executed a registered Settlement deed dated 13.7.1962 in respect of 'C' schedule properties in favour of Ganapathy Naicker and the Settlement deed was accepted and acted upon. It is clearly stated in the Settlement deed that in the event of no issues to Ganapathy Naicker, he shall take the properties absolutely. Thus, Ganapathy Naicker became the absolute owner of the 'C' schedule properties and and after his death, the first defendant Rajeswari Ammal became the absolute owner thereof. It was also claimed that A and B schedule properties were also in possession and enjoyment of Pattammal as her absolute properties. After her death, her son Ganapathy Naicker became the legal heir. Thereafter, the first defendant became the owner and she is in possession and enjoyment of almost all the items except certain items which she sold away to third parties. The plaintiff is not entitled to any share and his claim for 3/4th share is not correct. Hence, he prayed for the dismissal of the suit for partition with cost.
11. Defendants 4 and 5 have also filed a written statement wherein it was stated that Srinivasulu Naicker and Munuswamy Naicker constituted a joint family and there was no partition among them at any point of time. Srinivasulu Naicker died in 1955 before the Hindu Succession Act 1956 came into force. So on the death of Srinivasulu Naicker neither Pattammal, his wife nor Parameswari his daughter are entitled to any share. The son of Srinivasulu Naicker namely Ganapathy Naicker alone was the only heir of his father Srinivasulu Naicker who constituted a joint family with his father Srinivasulu Naicker and his paternal uncle Munuswamy Naicker. After the death of Srinivasulu Naicker, the joint family continued consisting of Ganapathy Naicker and Munusamy Naicker. Munuswamy Naicker died in the year 1989 leaving behind him his widow Nagabushana Ammal, the 5th defendant and his children, namely the defendants 4, 6 to 12. Ganapathy Naicker died in the year 1991 and thereafter his only heir and widow namely the first defendant Rajeswari Ammal and the defendants 4 to 12 continued the joint family. The first defendant is entitled to half share and the remaining half share belongs to the defendants 4 to 12. They also maintained the stand that the plaintiff is not at all the adopted son of Ganapathy Naicker and he cannot claim any share in respect of the joint family properties. The defendants 4 and 5 further contend that Pattammal had no means to purchase 'C' schedule properties and these properties were also purchased out of the income of the joint family properties in the name of Pattammal. That is why Pattammal never claimed that she is the owner of 'C' schedule properties during her lifetime. It is also a joint family property which cannot be given by Ganapathy Naicker to the plaintiff and the plaintiff is only in permissive occupation of a portion of the building bearing door No.35A, Chinnamanikara Street, Chengalput as he is a close relative of the defendants 1, 4 to 12. Hence, defendants 4 and 5 prayed for a preliminary decree for partition and separate possession of these defendants and defendants 6 to 12 in respect of their half share in the suit properties.
12. This statement filed by the defendants 4 and 5 were adopted by defendants 6 to 12.
13.An additional written statement was also filed by the defendants 1 and 2 reiterating their earlier stand.
14. The third defendant was set ex-parte as he did not come forward to contest the suit.
15. Both the suit namely, O.S.No.11 of 1999 and O.S.No.34 of 2000 were taken together by the trial Judge and the following issues were framed by him in O.S.No.34 of 2000;
1. Whether the 'C' schedule properties standing in the name of Pattammal are joint family properties ?
2. Whether the plaintiff is the adopted son of Ganapathy Naicker ?
3. Whether the plaintiff's mother Parameswari Ammal is a heir of Srinivasulu Naicker ?
4. Whether the plaintiff is enjoying the house property bearing door No.35A, Chinnamanikara street, Chengalput as a permissive occupant ?
5. What is the share of the plaintiff in the suit schedule property ?
6. Whether the suit is bad on the ground that there was already a partial partition ?
7. What other reliefs that are available to the plaintiff?
16. The trial court framed the following issues in O.S.No.11 of 1999:
1. Whether the plaintiff is in possession of the suit schedule property ?
2. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ?
3. To what other reliefs, the plaintiff is entitled to?
17. A memo was filed by the parties to the suit to try both the suits together and accordingly, it was tried together by the trial court. The evidence let in by the parties in O.S.No.34 of 2000 was also considered for the suit in O.S.No.11 of 1999.
18. Exhibits A1 to A53 were marked on the side of the plaintiff and Exhibits B1 to B44 were marked on the side of the defendants. The plaintiff was examined as P.W.1 and two other witnesses were examined as P.W.2 and P.W.3. The defendant Rajeswari Ammal was examined as D.W.1 and D5 was examined as D.W.2.
19. While considering the issue No.2, in O.S.No.34 of 2000, the trial court came to the conclusion that it was not proved by the plaintiff that he was the adopted son of Ganapathy Naicker.
20. While considering the issue No.1, in O.S.No.34 of 2000, the trial court found that items No.24 and 25 of 'C' schedule properties are the absolute properties of the first defendant Rajeswari Ammal and therefore, they are not the joint family properties.
21. Issue No.4, in O.S.No.34 of 2000 and issue No.1 in O.S.No.11 of 1999 were tried together by the trial court and it was held that the plaintiff enjoyed the property bearing Door No.35A, as a permissive occupant and he is not in possession of the property bearing door No.207, Anna Nagar.
22. While considering the issue No.3 in O.S.No.34 of 2000, the trial court held that Parameswari Ammal, the mother of the plaintiff is a heir of Srinivasulu Naicker.
23. While considering the issue No.5, in O.S.No.34 of 2000, the trial court rendered a finding that the plaintiff is entitled to a half share in all the properties except item Nos.24 and 25 in 'C' Schedule property which are the absolute properties of the first defendant Rajeswari Ammal.
24. While considering issue No.6 in O.S.No.34 of 2000, the trial court found that there was no proof for prior partition and therefore, the suit was not affected in any way.
25. Consequently, while considering the issue No.7, in O.S.No.34 of 2000, the trial court held that excepting item Nos.24 and 25 in 'C' Schedule property, the plaintiff and the defendants 4 to 12 together are entitled to equal shares in the other properties.
26. In so far as considering issue No.2 in O.S.No.11 of 1999, the trial court held that the plaintiff is not entitled to relief of permanent injunction and accordingly, the suit was dismissed in its entirety.
27. Aggrieved by the common judgment of the trial court, dated 9.10.2003, the plaintiff in both the suits filed A.S. No.1129 of 2004 and A.S.No.1130 of 2004.
28. A.S.No.1129 of 2004 was filed against the dismissal of O.S.No.11 of 1999 and A.S.No.1130 of 2004 was filed against the judgment and decree in O.S.No.34 of 2000 in so far as it relates to item Nos.24 and 25 of the 'C' schedule properties, which the trial court held that they were not available for partition as Rajeswari Ammal is the absolute owner of the property.
29. Heard the learned counsel for the appellant, Thiru S.V. Jeyaraman, the learned Senior counsel for R1 and R2 and the learned counsel for R4 to R12.
30. The learned counsel for the appellant submits that neither the first respondent nor the respondents 4 to 12 filed any appeal against the judgment of the trial court. Therefore, the finding of the trial court that except item Nos.24 and 25 of the 'C' schedule property, all other items are ancestral properties has become final. According to the learned counsel for the appellant, item No.24 and 25 of the 'C' Schedule properties are also joint family properties and the evidence let in by the parties would prove the same. He further pointed out that there was enough evidence to prove that the plaintiff is the adopted son of Ganapathy Naicker and therefore, the findings of the trial court to the contrary are to be interfered with. Hence, the learned counsel contended that in so far as O.S.No.34 of 2000 is concerned, the trial court ought not to have held that items No.24 and 25 of 'C' Schedule properties are the absolute properties of Rajeswari Ammal.
31. The learned counsel for the appellant further argued that in so far as O.S.No.11 of 1999 is concerned, the trial court has gone beyond the pleadings to render a finding that the deceased Parameswari Ammal and her son the plaintiff, were only permissive occupants. Once it was found that the plaintiff has been in legal possession and enjoyment of the suit properties, the trial court ought to have granted a permanent injunction to protect his lawful possession. Hence, the learned counsel prayed for allowing both the appeals.
32. Per contra, the learned Senior counsel for the respondents 1 and 2 submits that the plaintiff has miserably failed to prove with adequate evidence that he is the adopted son of Ganapathy Naicker. He submitted that the very act of giving and taking adoption as contemplated under Sec.11(vi) of the Hindu Adoptions and Maintenance Act 1956 is very much missing and therefore the plaintiff can never claim that he is the adopted son of Ganapathy Naicker. In support of this submission, the learned Senior counsel relied on a decision of this Court reported in CDJ 2007 MHC 566 (V.K.Jaishankar & antoher Vs G.Nambirajan & others).
33. The learned Senior counsel further points out that if the evidence adduced on behalf of the first defendant Rajeswari Ammal is considered in proper perspective, it will prove beyond doubt that item Nos.24 and 25 of the 'C' Schedule properties are the absolute properties of the first defendant.
34. He further added that once it is proved that item Nos.24 and 25 of the 'C' schedule properties belong to the first defendant absolutely, the possession of the plaintiff is only permissive and no injunction could be granted against her as prayed for by the plaintiff. Hence, he prayed for the dismissal of both the appeals.
35. I have considered the rival submissions carefully with regard to facts and the citation.
36. It is not in dispute that it is only the plaintiff who was aggrieved by the common judgment of the trial court and no appeal nor cross appeal was filed by the defendants. If that being so,the following issues alone are arising for consideration in these two first appeals.
1. Whether item Nos.24 and 25 of the 'C' schedule properties absolutely belong to the late Pattammal ?
2. Whether item Nos.24 and 25 of the 'C' Schedule properties are also available for partition ?
3. Whether the plaintiff has proved his case that he is the adopted son of Ganapathy Naicker ?
4. Whether the plaintiff is entitled to the relief of permanent injunction against the defendant Rajeswari Ammal ?
37. Issue Nos.1 and 2: The case of the plaintiff is that after the death of Srinivasulu Naicker, his wife Pattammal purchased item Nos.24 and 25 of the 'C' Schedule properties under a registered sale deed dated 2.11.1958 out of the funds and the G.P.F. accumulations of Srinivasulu Naicker. The property was purchased for the benefit of the joint family. This was contended by the defendant Rajeswari Ammal by stating that Pattammal purchased the suit 'C' Schedule property out of her own funds which were obtained by sale of the house property, the jewels and other amounts that were made available to her. It is further stated that the funds left behind by her husband Srinivasulu Naicker were utilised for the medical treatment of her son Ganapathy Naicker. Hence, according to the defendent Rajeswari Ammal, Pattammal was the absolute owner of the property.
38. It is not in dispute and in fact it is an admitted fact that the house properties shown as item Nos.24 and 25 in the 'C' Schedule properties were purchased in the name of Pattammal. When it was claimed by the plaintiff that they were also purchased out of the family income and therefore, they were also joint family properties. It was shown that these two properties were already settled by Pattammal in favour of Ganapathy Naicker when Pattammal herself was very much alive. Ex.B1 is the sale deed dated 2.11.1958 executed by one Kamakshi Ammal and others in favour of Pattammal. Ex.B2 is the Settlement Deed dated 13.7.1962 executed by Pattammal in favour of Ganapathy Naicker. The trial court has considered both these two documents and found from the sale deed (Ex.B1) that the two house properties were purchased by Pattammal on 2.11.1958 for a sum of Rs.8,400/- by selling her jewels. It was also found by the trial Court from the Settlement Deed (Ex.B2) that the amount received by Pattammal from the G.P.F. accumulations was spent for the treatment of Ganapathy Naicker. It was further stated in the Settlement Deed that these two properties were purchased out of her own funds and if no children were born to Ganapathy Naicker, then Ganapathy Naicker was entitled to the property absolutely. In the light of the above evidence, the trial court concluded that after the death of Ganapathy Naicker, the absolute property of Ganapathy Naicker was succeeded to by his wife, the defendant Rajeswari Ammal. While considering the claim of the plaintiff that the plaintiff's mother was also a heir of Pattammal and therefore, she was also entitled to a share in these two properties, the trial court found from the Settlement Deed itself that Pattammal did not give any share in the property to the plaintiff's mother as her marriage was celebrated in a grand manner and therefore, she settled the property exclusively in the name of Ganapathy Naicker out of love and affection.
39. After going through the evidence let in, in this regard and the averments made in the plaint and the written statement, I am of the considered view that the trial court has correctly decided this issue by holding that item Nos.24 and 25 of the 'C' Schedule properties are the absolute properties of Pattammal only and therefore, they are not joint family properties.
40. Thus, Issues No.1 and 2 are answered against the appellants by confirming the findings of the trial court.
41. Issue No.3 : It is the case of the plaintiff that he is the adopted son of Ganapathy Naicker. Though an averment was made in this regard very casually by the plaintiff, the requisite evidence was not let in, in support of this averment. The fact of adoption must be proved in the same way as any other fact. However, the evidence in support of an adoption must be sufficient to satisfy the onus that rests heavily upon any person who seeks to displace the natural succession by alleging an adoption. It is settled law that the burden lies heavily upon the person to prove the factum of adoption and its validity.
42. That apart, the very act of giving and taking adoption should be pleaded and proved by the person claiming adoption.
43. In C.D.J. 2007 MHC 566 (cited supra), this court after referring to Sec.11(vi) of the Hindu Adoptions and Maintenance Act 1956, held that to prove valid adoption under Hindu Law, it would be necessary to bring on record that there had been an actual giving and taking ceremony. Giving and taking of the child is siniquo non or the mandatory requirement for a valid adoption. If the facts of the present case, the averments made in the plaint and the evidence let in, are considered in proper perspective, that too, in the light of the above judgment, I have no hesitation in holding that the plaintiff has miserably failed to prove that he is the adopted son of Ganapathy Naicker. Therefore, this issue is also answered against the appellant by confirming the findings of the trial court.
44. Issue No.4 : I have already confirmed the findings of the trial court that item Nos.24 and 25 of the properties are the self acquired properties of Pattammal and therefore they are not available for partition. Further, there is no evidence at all to prove the contention of the plaintiff that item Nos.24 and 25 of the 'C' Schedule properties were given absolutely to the plaintiff by Ganapathy Naicker. Ex.A14 to Ex.A16 are the receipts for House tax paid for the house bearing door No.35A Chinnamanikara Street, Chengalput and they are standing in the name of Pattammal. Ex.A18 to Ex.A24 are also the House tax receipts, in which, both the plaintiff and the defendant Rajeswari Ammal's names were shown. The bills issued by the Electricity Board i.e. Ex.A40 to Ex.A46 were also in the name of Pattammal. Excepting these documents, no other document was filed by the plaintiff to prove his case that item Nos.24 and 25 of the 'C' Schedule properties were given to him by Ganapathy Naicker absolutely. Similarly, the plaintiff was not able to establish that he has any independent right in item No.25 of the 'C' schedule property. In some of the House tax receipts, Pattammal's name was found (Ex.A11 to A13 and Ex.A17) and in some of the House tax receipts, the defendant Rajeswari's name was found i.e. Ex.A25. Though in some of the House Tax receipts, the plaintiff's name was also found, these House tax receipts are not sufficient evidence to prove the case of the plaintiff that item Nos.24 and 25 of the properties are absolutely owned by him. In such circumstances, the only possible and inevitable conclusion that could be arrived at is that, the plaintiff's possession of item No.24 of the 'C' Schedule property is only permissible and therefore, he is not entitled to any decree of permanent injunction as prayed for by him against the defendant Rajeswari Ammal. Thus, this issue is also decided against the appellant and the findings of the trial court are upheld.
45. In the result, I do not find any merits in both the appeals and accordingly they are dismissed, by confirming the common judgment and decree of the trial court. Considering the close relationship of the parties, the above appeals are dismissed without any cost.
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