Madras High Court
Esakkiammal @ Yasotha vs Parvathiammal on 26 February, 2021
S.A.(MD)No.300 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.02.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.300 of 2015
Esakkiammal @ Yasotha : Appellant
Vs.
Parvathiammal : Respondent
PRAYER:- Second Appeal filed under Section 100 of Code of Civil Procedure,
to set aside the decree and judgment, dated 28.11.2014 rendered in A.S.No.28 of
2014 on the file of the Principal District Court, Tirunelveli, reversing the decree
and judgment, dated 25.02.2014 rendered in O.S.No.74 of 2010 on the file of
the Subordinate Court, Ambasamudram.
For Appellant :Mrs.J.Jessy Jeeva Priya
For Respondent :Mr.M.P.Senthil
****
JUDGMENT
The plaintiff in O.S.No.74 of 2010 is the appellant. The challenge is to
the judgment and decree of the learned Principal District Judge, Tirunelveli,
made in A.S.No.28 of 2014 reversing the judgment and decree of the trial Court
granting the relief of declaration of title and recovery of possession.
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S.A.(MD)No.300 of 2015
2.The plaintiff sued for the aforesaid relief contending that the suit
property belonged to one Karuppasamy Asari and Muthulakshmi, adoptive
parents of the plaintiff. The said Karuppasamy Asari died on 29.07.1989 and
Muthulakshmi also died in 2010. On the death of Muthulakshmi, the defendant,
who is the brother's wife of Karuppasamy Asari and was permitted to occupy
the suit property, had claimed independent title and disputed the status of the
plaintiff, as adopted daughter of Karuppasamy Asari and Muthulakshmi.
Hence, the plaintiff had come up with the above suit.
3.The suit was resisted by the defendant contending that the suit property
was not the exclusive property of Karuppasamy Asari. Her husband, Mani
Asari, also contributed towards the purchase of the suit property. The adoption
set up by the plaintiff was denied by the defendant.
4.At trial, the plaintiff examined herself as PW-1 and examined one
independent witness as PW-2. Ex-A1 to Ex-A11 were marked. The defendant
examined herself as DW-1. Ex-B1 to Ex-B8 were marked.
5.The learned trial Judge, upon a consideration of the evidence on record,
accepted the evidence of PW-2, which was supported by the documentary
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S.A.(MD)No.300 of 2015
evidence in the form of Ex-A7 and Ex-A9. The trial Court also found that the
plaintiff has proved adoption. The claim of the defendant that the suit property
was purchased in the name of Karuppasamy Asari with the aid of the
contribution from Mani Asari was rejected. Upon the above findings, the trial
Court decreed the suit as prayed for. Aggrieved, the defendant preferred an
appeal in A.S.No.28 of 2014.
6.The learned appellate Judge, on a re-consideration of the evidence on
record, concluded that the evidence of PW-2 cannot be accepted, as PW-2 was
only 28 years old at the time of adoption and could not have developed a
friendship with Karuppasamy Asari, who was 44 years old. The fact that the
PW-2 was resident of Virudhunagar was also taken as a ground to disbelieve the
evidence of PW-2. The learned Appellate Judge also rejected the documentary
evidence in the form of Ex-A7, the marriage invitation and Ex-A9, the school
record sheet. The learned appellate Judge referred to certain judgments of the
Honourable Supreme Court, which deal with the nature of proof required for
adoption and held that since adoption displaces the natural line of succession,
very strong proof is required to uphold adoption. On the said findings, the
learned appellate Judge allowed the appeal and dismissed the suit. Hence, the
second appeal.
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S.A.(MD)No.300 of 2015
7.The following substantial questions of law were framed by this Court at
the time admission:
“(a)Whether the Lower Appellate Court has failed to accord
proper weightage to the Record Sheet produced as Ex-A9 and
committed an error in law in holding to be not a public document?
(b)Whether Lower Appellate Court committed an error in
law in holding that Ex-A9 is not reliable as it does not contain the
signature of the person claimed to be the adoptive father of the
plaintiff?
(c)Whether the Lower Appellate Court has rendered a
perverse finding regarding the person who performed the marriage
by preferring Ex-B4 and Ex-A7?”
8.I have heard Mrs.S.Jessi Jeeva Priya, learned Counsel appearing for the
appellant and Mr.M.P.Senthil, learned Counsel appearing for the respondent.
9.Mrs.S.Jessi Jeeva Priya, learned Counsel appearing for the appellant,
elaborating on the questions of law, would vehemently contend that the learned
appellate Judge was not right in rejecting Ex-A9, which is an official document
issued by the School authority, more so, when the first defendant, as DW-1, has
admitted the fact that the plaintiff studied in the school, which had issued Ex-
A9. The learned Counsel would also submit that the reasons assigned by the
learned appellate Judge for disbelieving Ex-A7, the marriage invitation, as well
as the evidence of PW-2, are unnatural and as such the judgment of the lower
appellate Court has to be interfered with.
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S.A.(MD)No.300 of 2015
10.Contending per contra, Mr.M.P.Senthil, learned Counsel for the
respondent would submit that the standard of proof required for adoption is very
high, since the adoption seeks to displace normal course of succession. He
would point out that the evidence of PW-2 is quite unnatural and PW-2, who
was only 28 years old at the time when the adoption is said to have taken place,
could not have developed a friendship with the 44 years old man, namely,
Karuppasamy Asari. The learned Counsel would also point out that the
evidence offered by Ex-A7 is weak, since the defendant has produced Ex-B4,
which describe the plaintiff as daughter of her natural father, Palani Asari.
11.I have considered the rival contentions.
12.The lower appellate Court has overlooked an important admission in
the pleadings as well as evidence of DW-1. DW-1 has, in the pleadings and in
the evidence, admitted that the plaintiff was brought up Karuppasamy Asari and
Muthulakshmi. This vital fact, which is admitted, would help a long way in
assessing the other evidence available in the case on hand. Unfortunately, the
learned appellate Judge did not take into account the specific admission made
by DW-1. It is also seen that DW-1 has admitted that the plaintiff was the
student of St.Xavier's Middle School, at Irudhayakulam.
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S.A.(MD)No.300 of 2015
13.Ex-A9 is the record sheet issued by the school, in which the father's
name of plaintiff has been shown as Karuppasamy. No doubt, the learned
appellate Judge has given certain reasons for rejecting Ex-A9, namely, while
describing Karuppasamy both the terms, namely, the father and guardian, are
stated therein, one of them should have been scored off and the same has not
been done. The signature of the father is not borne out in the record. Ex-A9
has been issued by the Headmistress of St.Xavier Middle School. It is not
denied that it relates to the plaintiff. It is admitted that the plaintiff studied in
the said school. Therefore, the non-scoring out of either the father or guardian
in the record sheet and the absence of signature in the record sheet cannot be a
ground to totally discard an official document maintained by the School in the
course of its usual activities.
14.As regards, Ex-A7 and Ex-B4, the learned appellate Judge has rejected
Ex-A7 on the ground that it contains the name of the deceased adoptive father
of the plaintiff. A reading of Ex-A7 would show that it is prepared by the
bridegroom's side and the plaintiff is described as the daughter of Karuppasamy
and Muthulakshmi. The fact that Karuppsamy Asari's name is shown as one of
the invitors cannot be a ground to outright reject the Ex-A7. The defendant has
produced Ex-B4, the marriage invitation, in which the plaintiff is described as
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S.A.(MD)No.300 of 2015
the daughter of natural father, Palani Asari. It is not known as to how the
defendant secured the invitation of a marriage, which took place in the year
1990 and produced it in Court in the year 2013. The custody of the marriage
invitation of the plaintiff with the plaintiff can be explained, but, the custody of
the marriage invitation of the plaintiff in the hands of the defendant, that too
after 23 years of marriage, creates a doubt in the mind of the Court as to the
genuineness of Ex-B4. The appellate Court, in my considered opinion, erred in
discarding Ex-A7 and Ex-A9, which are very vital documents. The reasons
assigned by the appellate Court for disbelieving or discarding the evidence of
PW-2 are also unsound.
15.In view of the above, all the three substantial questions of law are
answered in favour of the appellant and the appeal is, therefore, allowed and the
judgment and decree of the lower appellate Court is aside and that of the trial
Court is restored. The suit is stand decreed as prayed for. No costs.
Index: Yes/No 26.02.2021
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S.A.(MD)No.300 of 2015
To
1.The Principal District Judge, Tirunelveli.
2.The Subordinate Court, Ambasamudram.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.300 of 2015
R.SUBRAMANIAN, J.
cmr
Judgment made in
S.A.(MD)No.300 of 2015
26.02.2021
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