Madras High Court
Dr.M.A.M.Ramaswamy Chettiar Of vs The Tahsildar on 13 October, 2022
1/19 W.P.No.15003/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 13-10-2022
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.No.15003 of 2016
Dr.M.A.M.Ramaswamy Chettiar of
Chettinad Charitable Trust,
rep.by its Managing Trustee
Dr.A.C.Muthiah ... Petitioner
-vs-
1.The Tahsildar,
Mylapore-Triplicane Taluk,
Mylapore,
Chennai- 600 028.
2.M.A.M.R.Muthiah ... Respondents
Petition under Article 226 of the Constitution of India, praying for issuance
of a writ of certiorari, to call for the records relating to the order of the first respondent
herein in B4/11118/2015, dated 10.03.2016, and quash the same.
For Petitioner : Mr.R.Srinivas,
for M/s.S.Sithirai Anandam.
For Respondent 1 : Mr.V.Arun,
Additional Advocate General,
assisted by Mr.T.Venkatesh Kumar,
Special Government Pleader.
https://www.mhc.tn.gov.in/judis
2/19 W.P.No.15003/2016
For Respondent 2 : Mr.M.S.Krishnan,
Senior Counsel,
for Mr.T.Balaji
ORDER
This Writ Petition has been filed challenging the impugned order of the first
respondent in proceedings No.B4/11118/2015, dated 10.03.2016, issuing Legal
Heirship Certificate to the second respondent.
2. The brief facts leading to the filing of this Writ Petition are that the
leading industrialist Dr.M.A.M.Ramaswamy is said to have adopted the second
respondent by an adoption deed, dated 09.02.1996. After the said adoption, the second
respondent and Dr.M.A.M.Ramaswamy were residing together for several years. After
some time, a dispute arose between the father and the son in the year 2014. The
adoptive mother expired on 24.03.2006 and the adoptive father died on 02.12.2015.
During his lifetime, it appears that, Dr.M.A.M.Ramaswamy executed a Will in favour of
the petitioner in respect of certain properties. After the death of Dr.M.A.M.Ramaswamy,
the second respondent applied to the first respondent for Legal Heirship Certificate on
09.12.2015. The first respondent, on receipt of the said application, called for objections
and pursuant to the same, the writ petitioner and four others filed objections for grant of
https://www.mhc.tn.gov.in/judis
3/19 W.P.No.15003/2016
Legal Heirship Certificate in favour of the second respondent. The objections mainly
relate to questioning the very adoption itself. In the objections, they raised a point that
the adoption was cancelled and, therefore, the Legal Heirship Certificate cannot be
issued. After hearing both sides, the first respondent, took note of the fact that in the
earlier Legal Heirship Certificate, which was issued after the death of the adoptive
mother, the name of the second respondent was also shown as a legal heir along with the
adoptive father. That apart, the Ration Card issued by the authority concerned also
contained the name of the second respondent as a family member and
Dr.M.A.M.Ramaswamy, as the head of the family. Considering the said aspects, the
first respondent issued Legal Heirship Certificate to the second respondent. Challenging
the said Legal Heirship Certificate, the entire proceedings are sought to be quashed in
this Writ Petition.
3. Disputing the pleadings in the writ petition, the second respondent has
filed a counter, questioning the locus of the petitioner to challenge the Legal Heirship
Certificate. According to the second respondent, the petitioner is a stranger to the family
and he has no right whatsoever to question the adoption or Legal Heirship Certificate.
Accordingly, he sought for dismissal of the Writ Petition.
https://www.mhc.tn.gov.in/judis
4/19 W.P.No.15003/2016
4. Though the Writ Petition has been filed challenging the issuance of the
Legal Heirship Certificate, the entire pleadings focussed on the validity of the adoption
and the rights of the parties.
5. The contention of the petitioner is that the adoption of the second
respondent in the year 1996 is not valid under law as per the Hindu Adoptions and
Maintenance Act,1956. It is the main contention of the petitioner that at the relevant
point of time the second respondent was aged more than 15 years and, therefore, the
adoption is void ab initio. Therefore, the question raised in this Writ Petition is mainly
with regard to the validity of adoption. Though several pleadings have been made in the
Writ Petition, this Court is of the view that to decide the issue with regard to the
impugned order passed by the first respondent, the pleadings with regard to the validity
of the adoption deed and its genuineness are irrelevant, as, to question any valid
document and non-suit the adoption, the forum is different. It is a matter of evidence
based on proof and disproof on certain facts. Therefore, this Court is of the view that
irrespective of various pleadings made in the writ petition, those pleadings are irrelevant
to the issue, which pertains only to issuance of Legal Heirship Certificate.
https://www.mhc.tn.gov.in/judis
5/19 W.P.No.15003/2016
6. Mr.R.Srinivas, learned counsel for the petitioner, mainly argued on the
validity of the adoption deed. It is his contention that as per Section 10 (iv) of the Hindu
Adoptions and Maintenance Act, 1956, the adoption is void. According to him, since
the person adopted at the relevant point of time was aged about 24 years, the Tahsildar
ought not to have issued the Legal Heirship Certificate in favour of the second
respondent. It is his further contention that burden also lies on the person, who pleads
adoption, to establish the issue. When serious objections had been raised, the same
were not considered by the Tahsildar. He also submitted that a Will was also executed
in favour of the petitioner on 18.02.2015 bequeathing all the properties of
Dr.M.A.M.Ramaswamy. Now, the Will is in the process of Probate in T.O.S.No.27 of
2021 on the file of this Court. Therefore, his contention is that the petitioner has every
right to object to the issuance of Legal Heirship Certificate in favour of the second
respondent. In support of his submissions, the learned counsel relied upon the following
decisions :
(i) Rathnamma and Others v. Sujathamma and Others, (2019) 19 SCC 714,
wherein it has been held as under :
''16. This Court in a judgment reported as Salekh Chand
(Dead) by LRs v. Satya Gupta & Ors., while dealing with the claim of
adoption under the Hindu Adoption and Maintenance Act, 1966, held
as under:
https://www.mhc.tn.gov.in/judis
6/19 W.P.No.15003/2016
22. It is incumbent on party setting up a custom to
allege and prove the custom on which he relies. Custom
cannot be extended by analogy. It must be established
inductively and not by a priori methods. Custom cannot be a
matter of theory but must always be a matter of fact and one
custom cannot be deduced from another. It is a well-
established law that custom cannot be enlarged by parity of
reasoning.''
(ii) K.M.Subramaniam v. Parvathiammal, AIR 2017 Mad 37, wherein, it is
held as under :
''23. The Hon'ble Supreme Court had again reiterated in
Daulatrao Jairamji vs. Harishchandra and others reported in AIR
1972 SC 2446, the burden of proof of adoption is on the person, who
claims adoption.
24. If we analyse the evidence on record, in light of the
observations of the Hon'ble Supreme Court referred to above, we
find that the case of adoption put forth by the respondent should not
have been accepted by the Trial Court. The reasons are not far to
seek. The case of the 1st defendant in his written statement is that the
adoption took place during the month of Avani 1960. Admittedly the
2nd plaintiff was born in the year 1940. Therefore, he was nearly 20
years old on the date of the alleged adoption. After coming into force
of Hindu Adoption and Maintenance Act, a child above the age of 15
cannot be adopted, unless such adoption is shown to be according to
the custom or usage of community to which the parties belonged to,
in view of prohibition contained under Section 10(iv) of the Hindu
Adoptions and Maintenance Act 1956. In the case on hand, custom or
https://www.mhc.tn.gov.in/judis
7/19 W.P.No.15003/2016
usage in the community to which the parties belong to has neither
been pleaded nor proved.''
7. On the other hand, Mr.M.S.Krishnan, learned Senior Counsel appearing
for the second respondent, vehemently contended that the petitioner has no locus to
challenge the Legal Heirship Certificate and that this Court is not the appropriate forum
to agitate the validity of adoption. It is his contention that the petitioner is well aware of
the adoption from the year 1996; he also participated in the adoption proceedings and
he has knowledge about the adoption; however, no suit whatsoever has been filed
challenging the said adoption. He would also submit that even assuming that the Will is
claimed to have been executed by Dr.M.A.M.Ramaswamy in favour of the Petitioner
Trust, it does not take away the relationship of the parties. According to him, even in
the event of the Will being probated, the consequence would be that only the beneficiary
will get the properties, in which event, the relationship of the parties, as established by
the adoption deed, will not be taken away. His further submission is that except for the
Will, the petitioner has no other right; and only on the basis of the Will, he claims right,
but the Will is the subject matter of T.O.S. and unless and until the Probate is granted,
the petitioner has no right either in the properties or in the family to question the validity
of adoption or relationship of the parties. He would also submit that the petitioner is a
stranger to the family and adoption cannot be challenged by any third party. Therefore,
https://www.mhc.tn.gov.in/judis
8/19 W.P.No.15003/2016
it is his contention that the Tahsildar has issued the Legal Heirship Certificate in favour
of the second respondent, taking note of the previous relationship and the existing
documents pertaining to the relationship of the family, after hearing the objections of the
parties, and, as such, the said Legal Heirship Certificate cannot be quashed in these writ
proceedings. In support of his contentions, the learned Senior Counsel relied upon the
following decisions :
(i) Kadappa Satyappa Terani v. Siddappa Khandappa Terani and Ors.,
MANU/KA/4321/2022, wherein, it is held as follows :
''15. This Court also has to take note of the judgment rendered by
the Co-ordinate Bench of this Court in Veerabhadrayya R.Hiremath vs.
Irayya A.F.Basayya Hiremath, MANU/KA/0306/2006 : ILR 2006 K 1740.
This Court was of the view that except genitive parents, adoptive parents
and the adopted son, others have no locus to question the validity of
adoption. The principles laid down by the Co-ordinate Bench are
squarely applicable to the present case on hand.''
(ii) Mst.Deu and Others v. Laxmi Narayan and Others, (1998) 8 SCC 701,
wherein, is has been held as under :
https://www.mhc.tn.gov.in/judis
9/19 W.P.No.15003/2016
''3. In view of Section 16 aforesaid whenever any document
registered under any law for the time being in force is produced before
any court purporting to record an adoption made and is signed by the
persons mentioned therein, the court shall presume that the adoption has
been made in compliance with the provisions of the said Act unless and
until it is disproved. According to us, it was not open to the defendants
of the said suit for partition to collaterally challenge the said registered
deed of partition. In view of Section 16 of the aforesaid Act it was open
to them to disprove such deed of adoption but for that they had to take
independent proceeding. The High Court was fully justified in directing
that the respondent be substituted in place of Smt Phulla on the basis of
the registered deed of adoption produced before the court.''
(iii) Sumitra Bai v. Baratu and Others, 2019 SCC OnLine Chh 333,
wherein, it has been held as under :
''22.The Karnataka High Court in the matter of Verabhadrayya
R.Hiremath v. Irayya A.F.Basayya Hiremath, has held that in the normal
circumstances, adoption can be challenged either by the natural parents
of the boy or by the adoptive parents or by the child who has been given
in adoption.
23. Drawing analogy from the said principle, it is held that
defendants No.2 to 7 being total strangers to the fact of adoption cannot
set up the plea of adoption of Vishambhar by Vishal Lodhi in absence of
the plea having been taken by Udairam, as he filed written statement
https://www.mhc.tn.gov.in/judis
10/19 W.P.No.15003/2016
before the trial Court prior to his death and even Vishal Lodhi was not
examined by the defendants to at least prove the fact of adoption.
Therefore, the plea of adoption taken by defendants No.2 to 7 and found
established by the Court, the fact that even there is not an iota of
evidence to establish the fact of adoption, the finding regarding
adoption of Vishambhar by Vishal Lodhi is hereby set aside.''
(iv) Veerabhadrayya R Hiremath and Others v. Irayya A.F.Basayya
Hiremath, ILR 2006 KAR 1740, wherein, it is held a under :
''12. But I am unable to accept the arguments advanced by the
learned Counsel for the appellants for the following reasons:
The appellant admits the execution of the adoption deed taking the
defendant in adoption by Basayya. According to the appellant the
adoption deed as per Ex.D1 came into existence by playing fraud on
deceased Basayya. According to him, Basayya died six years prior to the
institution of the suit. It is also his case that he cams to know of adoption
of the defendant by Basayya in the year 1979. The suit was filed in the
year 1992. If Basayya of died six years prior to the institution of the suit,
in all probabilities Basayya was alive till 1986. If plaintiff had come to
know of the adoption deed in the year 1979, if really adoption deed had
been obtained by the defendant by playing fraud on Basayya, there was
no difficulty for the appellant-plaintiff to request Basayya to challenge
the adoption deed contending that the same was obtained by
misrepresentation or fraud. But such an action has not been taken by the
https://www.mhc.tn.gov.in/judis
11/19 W.P.No.15003/2016
plaintiff, requesting Basayya to file a suit to challenge the adoption
deed. Admittedly, the suit is filed six years after the death of Basayya
and 13 years after coming to know of the adoption of the defendant by
Basayya. In the normal circumstances, adoption can be challenged
either by the natural parents of the boy or by the adoptive parents or by
the child who has been given in adoption. But in the instance case, the
plaintiff is a stranger to the defendant. If really, a fraud had been played
on Basayya, it-was for Basayya to file a suit for cancellation of the
adoption. The very fact that the plaintiff had not requested Basayya to
file a suit for cancellation on the ground that Ex.D1 had come into
existence on account of the fraud played by Police-Patil of Astakatti
village on Basayya, it is not open for the plaintiff to challenge the
adoption of defendant, six years after the death of Basayya. In other
words/ this Court is of the opinion there is no cause of action for the
plaintiff to file the suit.''
(v) Sukhbir Kaur v. Balwant Singh and Another, 2016 SCC OnLine P&H
19487, wherein, it has been held as under :
''46. Here a question arises as to who can challenge the adoption
and whether defendants have any locus standi to challenge the adoption.
The first Appellate Court, while discarding the plea of plaintiff that she is
adopted daughter of Dalip Singh, has looked into all the facts like non-
performance of required ceremonies; not giving of information/notice to
entire village, producing of bahi entry of expenses of ceremony, calling
the relatives etc. The fact of the matter is that adoption deed was
executed by Dalip Singh. He had never challenged the adoption of
https://www.mhc.tn.gov.in/judis
12/19 W.P.No.15003/2016
Sukhbir Kaur. Balwant Singh or attorney of Dalip Singh had no locus
standi whatsoever to challenge the adoption deed. Neither of the plea of
Balwant Singh, if accepted, confer him any right, title or interest in the
property of Dalip Singh by natural succession. In normal circumstances,
adoption can be challenged either by natural parents or by adoptive
parents or the child who has been given in adoption. A stranger lacks
the authority to challenge the adoption deed.''
8. Mr.V.Arun, learned Additional Advocate General, appearing for the first
respondent-Tahsildar, has submitted that the Tahsildar has followed due process of law,
invited objections, and taking note of the adoption deed and the previous Legal Heirship
Certificate issued after the death of the adoptive mother and the Ration Card, wherein
the second respondent was shown as a member of the family of the adoptive mother,
issued Legal Heirship Certificate. Therefore, his contention is that when the Legal
Heirship Certificate has been issued by following due process of law particularly the
Revenue Standing Orders and the G.O.Ms.No.581, the same cannot be faulted. It is also
his submission that mere issuance of Legal Heirship Certificate will not take away the
rights of the parties and it is for the party to establish the right in a competent Civil
Court and not in the writ petition. Accordingly, he prayed for dismissal of the Writ
Petition.
https://www.mhc.tn.gov.in/judis
13/19 W.P.No.15003/2016
9. After hearing the parties and on perusal of the records, this Court is of
the view that though the relief itself has been camouflaged as if it is against the Legal
Heirship Certificate, the entire pleadings and other aspects are beyond that. What is
pleaded in the Writ Petition is just like the pleadings in the Civil Suit. The main ground
of attack of Legal Heirship Certificate is of the adoption of the year 1996, which is
registered as per law.
10. On mere affidavit and assumption, the Writ Court cannot go into the
question whether the adoption is void or valid in the eye of law, as it has to be proved in
the manner known to law. One cannot merely assume that the adoption is void merely
because the adopted son crossed the age of 15 years at the relevant point of time. It is
relevant to note Section 10 of the Hindu Adoptions and Maintenance Act,1956, which
reads as under :
''10. Persons who may be adopted.— No person shall be capable of
being taken in adoption unless the following conditions are fulfilled,
namely:—
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or
usage applicable to the parties which permits persons who are married
being taken in adoption;
https://www.mhc.tn.gov.in/judis
14/19 W.P.No.15003/2016
(iv) he or she has not completed the age of fifteen years, unless
there is a custom or usage applicable to the parties which permits
persons who have completed the age of fifteen years being taken in
adoption.
11. On perusal of the above statutory provision, it is clear that there is no
absolute bar for adopting a person, who completed the age of 15 years, if there is custom
or usage applicable to the parties. Such being the legal position, whether the custom is
prevalent in a particular community is a matter of evidence, which has to be proved
before the competent Civil Court and not in the Writ Petition before this Court.
Therefore, merely on the ground that the adopted son was beyond the age of 15 years at
the relevant point of time, this Court cannot come to the conclusion that the very
adoption itself is void as per Section 10 of the Act.
12. If the petitioner claims any right on the basis of the registered Will, said
to have been executed by Dr.M.A.M.Ramaswamy on 18.02.2015, this Court is of the
view that if at all the Will is established and probated as per law, the petitioner's status
will be only as the beneficiary under the Will and his position will not be elevated to that
of a legal heir to the original executor, namely, Dr.M.A.M.Ramaswamy. Even if the
Will is proved, the petitioner is entitled only to the property bequeathed under the Will
https://www.mhc.tn.gov.in/judis
15/19 W.P.No.15003/2016
and not any more and his position will not be elevated to that of relationship as Class 1
or Class 2 legal heir. Such being the position, the petitioner cannot challenge the
adoption. It is for him to work out his remedy before some other forum particularly the
Civil Court. Since the rights of the parties involved not only with regard to the Will but
also other properties, the same have to be established by adducing proper evidence
before the Civil Court and not before this Court in the Writ Petition. As far as the
issuance of Legal Heirship Certificate is concerned, it has been issued by the first
respondent – Tahsildar, after hearing the objectors and considering other documents,
namely, the adoption deed, which was registered in the year 1996, and the Legal
Heirship Certificate, issued in the name of the second respondent when the adoptive
mother died, wherein the adoptive father was also shown as one of the legal heirs. That
apart, the Family Card was also taken into consideration by the Tahsidar, Therefore, the
Tahsildar had issued the Legal Heirship Certificate in favour of the second respondent,
on forming an opinion. It is also to be noted that mere issuance of Legal Heirship
Certificate will not take away the rights of any party.
13. A Full Bench of this Court, in P.Venkatachalam v. The Tahsildar, in
W.P.No.25247 of 2021, has held that the certificates issued by the Tahsildar amount to
nothing more than a relationship certificate, reflecting the opinion of the Tahsildar as to
the relationship of the applicant and others named therein with the deceased.
https://www.mhc.tn.gov.in/judis
16/19 W.P.No.15003/2016
Consequently, the certificate issued by the Tahsildar does not affect the legal right of any
party and has no bearing on the status of a legal heir, which is conferred on an
individual under his/her personal law. It is also held therein that in the absence of any
conflict with any primary or delegated legislation holding the field, G.O.Ms.No.581
Revenue Department dated 03.04.1987 casts a duty on the Tahsildar to issue a legal
heirship certificate as per the norms and guidelines prescribed by the Commissioner of
Land Administration. G.O.Ms.No.581 Revenue Department dated 03.04.1987 is
undoubtedly a law as it has been issued in exercise of executive power under Article 162
of the Constitution of India. Consequently, when the Tahsildar keeps the application
pending and doe not decide on it one way or the other, a writ of mandamus may be
issued by the High Court directing the Tahsildar to decide the application in terms of
G.O.Ms.No.581 Revenue Department dated 03.04.1987 and the applicable circulars.
14. Therefore, this Court is of the view that mere issuance of Legal Heirship
Certificate, expressing the opinion as to the relationship of the parties, will not take
away the rights of the parties, particularly the petitioner and the second respondent. The
right independent has to be established before competent Civil Court. As such, mere
issuance of Legal Heirship Certificate by the first respondent will have no effect on the
rights of the parties, except to show the relationship between the deceased and the
second respondent. In other aspects, the same has to be established before a competent
Civil Court. Therefore, this Court does not find any merit in this Writ Petition.
https://www.mhc.tn.gov.in/judis
17/19 W.P.No.15003/2016
15. Further, even now, it is premature to contend that the petitioner has got
absolute right at this stage until the Will is probated and his right recognised by a Court
of Law. Petitioner being a stranger to family cannot question such documents, wherein
the second respondent has been declared as the adopted son. It is also well settled that
testamentary instruments can be challenged only by the members of the family and
strangers to the family are not competent to challenge the said documents.
16. In such view of the matter, the question of setting aside the impugned
order, namely, the Legal Heirship Certificate, issued by the first respondent – Tahsildar,
does not arise. Accordingly, this Writ Petition is dismissed. No costs. Consequently,
the connected W.M.P.No.13094 of 2016 is closed.
Index : Yes/No 13-
10-2022
Internet : Yes/No
Speaking / Non-speaking Order
dixit
To
https://www.mhc.tn.gov.in/judis
18/19 W.P.No.15003/2016
The Tahsildar,
Mylapore-Triplicane Taluk,
Mylapore,
Chennai- 600 028.
N.SATHISH KUMAR,J.
https://www.mhc.tn.gov.in/judis
19/19 W.P.No.15003/2016
dixit
W.P.No.15003 of 2016
13-10-2022
https://www.mhc.tn.gov.in/judis
