C.G. Rajendran vs M. Senthilkumar

A.S. Venkatachalamoorthy, J.—The above revision petition has been filed against the order in I.A.No.16017 of 1998 in O.S.6278 of 1997

on the file of VIII Assistant City Civil Court, Madras, dismissing the application filed under Order 7 Rule 11(d) read with Section 151 of Code of

Civil Procedure, praying the Court to dismiss the suit.

The respondent/plaintiff filed the suit in O.S.6278 of 1997 against the petitioner herein and two others praying the Court to declare that the sale

deed executed by the petitioner herein (first defendant) in favour of defendants 2 and 3 dated 25.7.1997 at S.R.O., Ashok Nagar, Madras,

registered as document Nos.1125 and 1126 of 1997 as null and void and not binding upon the plaintiff and for permanent injunction restraining the

petitioner herein and other defendants from in any way dealing with the property morefully described in plaint ''A'' schedule either by way of

alienation or by encumbering and also for permanent injunction restraining the petitioner herein from in any way alienating and encumbering the

property morefully described in plaint ''B'' schedule and for other reliefs.

Briefly the case of the respondent/plaintiff is that he was born in the year 1975 to Dr.G.Munuswamy and at the age of one he was given in

adoption to the petitioner herein/first defendant and his wife Devaki Ammal. According to the plaintiff, he was given in adoption after performing all

Hindu rites viz., Datta Homam, etc., and from that day onwards plaintiff was brought up by the petitioner herein and that he is the only adopted son

of the couple and that the couple have no issues other than the plaintiff. It is the further case of the plaintiff that the plaint scheduled properties were

originally belonged to one Dhanalakshmi Ammal, mother of Devaki Ammal and after the death of Dhanalakshmi Ammal, Devaki Ammal inherited

the properties and they were absolute properties of Devaki Ammal and no one including the petitioner herein/first defendant has any right or

interest in the plaint scheduled properties.

On 18.10.1989, both the petitioner herein and his wife Devaki Ammal executed a will in favour of the respondent herein bequeathing the plaint

scheduled properties and the same was duly registered. Again in the year 1995, Devaki Ammal executed a will along with her husband viz.,

petitioner herein on 27.11.1995 bequeathing the plaint scheduled properties and the same was also registered. Devaki Ammal died on 10.3.1996.

Thereafter, there was a change in the attitude of the petitioner herein, in that, respondent/plaintiff was not even allowed to perform the last rites to

his mother. Even though petitioner/first defendant has no manner of right in the plaint scheduled properties, he sold the property bearing Door

No.12, 7th Street, Dr.Subbarayan Nagar, Kodambakkam, Madras-24 to the defendants 2 and 3 through a registered sale deed. When this was

brought to the notice of the respondent/plaintiff, he caused a lawyer''s notice to be sent to the petitioner/first defendant. Not being satisfied,

petitioner herein is making further attempts to dispose of the ''A'' scheduled properties and even prepared to sell it for a throw-away price. In brief,

the case of the respondent is that he is entitled to the properties as adopted son and that apart Devaki Ammal bequeathed the properties only in his

favour.

Petitioner herein as first defendant resisted the suit contending that he and his wife never treated the respondent/plaintiff as their adopted son.

Even though testamentary disposition executed by them on 18.10.1989 and 27.11.1995 may describe him as adopted son, there is no valid

adoption as per Hindu custom and rites. Further case of the petitioner/first defendant is that by virtue of power of revocation, he has subsequently

executed a modification deed dated 2.9.1996 (wife of the petitioner died on 10.3.1996) revoking the Joint Will dated 27.11.1995. There is yet

another contention raised by the petitioner/first defendant to the effect that after the demise of his wife on 10.3.1996, he became the only surviving

legal heir and became entitled to the properties and the properties are possessed by him absolutely and they are duly transferred in his name in the

revenue and municipal records.

Pending suit, petitioner/first defendant filed I.A.16017 of 1998 under Order 7 Rule 11(d) and Section 151 of CPC praying the Court to reject

the suit on the ground that the respondent/plaintiff''s claim is based on the Will but inasmuch as the said will has not been probated, he could not

have acquired any right under such document.

Respondent/plaintiff resisted the said application contending that he has filed the suit not basing on the Will but on the ground that he is the

adopted son of the petitioner/first defendant and his wife. The respondent/plaintiff would clarify the position by saying that he is relying on the

unprobated will only for collateral purpose and nothing else.

The trial Court dismissed the petition holding that the respondent/plaintiff would succeed if he is able to prove that he was validly adopted by the

petitioner and his wife way back in the year 1976.

The respondent/plaintiff has filed the suit claiming certain reliefs, about which a reference has already been made. In paragraph 3 of the plaint,

respondent/plaintiff has clearly stated that he was given in adoption in the year 1976 after performing all Hindu rites including Datta Homam, etc.,

and from that day onwards, he was brought up by the petitioner/first defendant and his wife Devaki Ammal and he was the only adopted son of the

couple and the couple have no issues other than himself. Of course, in the subsequent paragraphs the respondent/plaintiff has referred to the

execution of the wills by the petitioner/first defendant and Devaki Ammal. If one reads the plaint as a whole including the cause of action, it could

be seen that the respondent/plaintiff based his right to plaint scheduled properties as adopted son, he being the sole heir and also under the will.

In the counter affidavit filed in I.A.16017 of 1998, in paragraphs 2, 3, 5 and 6, the respondent/plaintiff has made it very clear that he has filed

the suit not basing on the will, but only as an adopted son of the petitioner and Devaki Ammal. In fact, there is a clear statement in paragraph 3 of

the counter affidavit, which reads thus,

I have not made any claim under the Will.

But, if one goes through the affidavit filed by the petitioner/first defendant, it would give an impression that the plaintiff is claiming only on the basis

of the will and not as adopted son and that is obviously wrong. In fact at this juncture it has to be pointed out that in paragraph 4 of the written

statement first defendant has stated as under,

This defendant states that the plaintiff has filed the suit alleging as if he is the adopted son of this defendant and his wife late Smt.Devaki Ammal

and he has been claiming rights in relation to the suit property. ...

This would show that the petitioner/first defendant is aware that the respondent/plaintiff has in the suit claiming right to the suit properties as the

adopted son of the couple also.

When a person makes a claim to certain properties both on the ground that he is a validly adopted son and no other heir to succeed as well as

beneficiary under an unprobated will and more so when he makes it clear before Court in an affidavit that he is claiming right to the suit properties

in that suit only on the basis that he is the adopted son and not under the will, then there can be no obstacle or impediment for the Court to

proceed to consider the claim of that person viz., the respondent herein as to whether he is the adopted son of the petitioner and his wife and

whether he would be entitled for the plaint scheduled properties by succession.

The next question is whether the unprobated will could be used for collateral purpose. The answer is in the positive. A person can rely on an

unprobated will provided he does not do so in order to establish his right under the will. Ganshamdoss Narayandoss Vs. Gulab Bi Bai, .

In view of the above, the revision petition is dismissed. No costs. Consequently, C.M.P.No.7728 of 2002 is also dismissed.