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Judgment
Prabha Sridevan, J.—Plaintiff is the Appellant. He filed the suit for a declaration that the decree dated 05-09-2006 in O.S. No. 7302 of
2006 obtained by the first Respondent is null and void and for consequential injunction and also sought for interim injunction. By the decree dated
05-09-2006, the learned VIII Assistant City Civil Judge declared that the Plaintiff was the adopted son of one Pitty Indrasenu and the second
Respondent herein. The importance of this declaration is interlinked with the fact that several educational institutions are administered by a Trust
called Theagaraya Chetty Educational Institutions Managing Committee. It was founded by the philanthropist Pitty Theagaraya Chetty (Senior) and
Pitty Theagaraya Chetty (Junior). There were internal disputes among the Trustees. A scheme was framed by the Supreme Court. Subsequently,
there were other disputes and the consequence is that very often the Trustees are before this Court in one form of litigation or the other. If the
Respondent''s status is accepted then he will have the right to represent the Pitty Thegaraya Chetty (Junior) Family in the Board of Trustees. The
Appellant claims that he is the greatgrandson of Pitty Theagaraya Chetty (Junior) through his daughter Kanniamma and according to him, the first
Respondent cannot claim any right of nomination on the basis of the decree whilch he alleges to be collusive. Therefore, the importance of the
status flows from the fact that the recognition of the status would give the first Respondent the right to be on the Board of Trustees and the denial
of the status would take it away from him. The numerous litigations filed by the Trustees also underscore the struggle for power amongst the
Trustees.
Pitty Indrasenu and his wife, the second Respondent did not have any issues. According to the first Respondent, he was adopted by them in
1969. In 2006, the first Respondent filed the suit and obtained a decree. According to the Appellant it is rather curious that this suit was filed so
many years after the execution of the adoption deed. The so called adoption deed neither contains any recital of giving or taking of the adopted son
nor has it been signed by the person giving adoption. More importantly, the natural father had denied the adoption by his letters dated 29-10-1999
which is signed by the first Respondent himself and also by a subsequent letter dated 22-11-1999. It is also alleged that the first Respondent is
residing with his natural mother while the second Respondent is languishing in an old age home. The decree was obtained on the basis of a memo
filed by the natural mother and adoptive mother. According to the Appellant the adoption was not proved. So the suit was filed. The learned
Counsel for the Appellant submitted that adoption must be proved. There must be no suspicion. He submitted that the above letters were clear
evidence that there was no adoption.
3 According to the first Respondent, the adoption deed was a proof for valid adoption. His legal claim as an adopted son of Pitty Indrasenu and
the second Respondent was sought to be negated because of a single sentence in an order passed in Application No. 732 of 2006 that ""All the
facts now placed before this Court would at no stretch of imagination confer the right on Chandrasekar as adopted son"". So the Respondent had
to have his right declared and the suit was filed. The learned Counsel submitted that on the date of the suit, the only persons who had any say in the
matter were the natural mother and the adopted mother and both of them were shown as Defendants and they appeared before Court and they
submitted to the decree. The learned Counsel submitted that beyond this there was nothing further to be done. The learned Counsel appearing for
the first Respondent also submitted that the two letters were written as a reaction to certain decisions taken by the second Respondent and did not
reflect the correct statement of facts. Further, the learned Counsel submitted that when there is a valid adoption Section 15 of the Hindu Adoption
and Maintenance Act, 1955 provides that the same cannot be cancelled by the adoptive father or the mother or any other person or even the
adopted child renounce his status as such and cannot return to his family of birth. The learned Counsel submitted that, when that is the legal
position a mere letter written perhaps in a fit of anger cannot take away from the first Respondent the status of the adopted son of Pitty Indrasenu
and Leelavathi. The learned Counsel also referred to other proceedings before this Court where the Pitty Theagaraya Chetty (Senior) branch had
accepted the first Respondent as an adopted son. This admission is the best evidence. The learned Counsel submitted that such an admission was
actually against the interest of the Senior Branch. So it should be given due weight. He referred to the order passed by this Court on 19-10-1970
where the scheme had been amended pursuant to an agreement entered into between the adult male members of the family of Pitty Theagaraya
Chetty (Senior) and the second Respondent herein. The learned Counsel also submitted that when there is a decree declaring the status of the first
Respondent as an adopted son until and unless that is setaside, its effect cannot be nullified, especially at the interlocutory stage. The primafacie
case should be decided only on the basis of the decree granted on the suit filed by the first Respondent.
The importance of the proof of adoption is spelt out in Pentakota Satyanarayana and Others Vs. Pentakota Seetharatnam and Others, where
the Supreme Court has referred to the heavy onus that lies on the person who sets up a case of adoption to prove the factum of adoption and since
the person seeks to exclude the natural line of succession to property by alleging adoption. Therefore, the duty of the Court while considering the
question whether an adoption is genuine or not appears to be akin to that which is cast upon a Court while dealing with Wills. The Supreme Court
observed that just as a propounder of a Will is obliged to dispel the cloud of suspicion, there is a burden on the person who claims to have been
adopted to dispel the cloud of suspicion. The factum of adoption must be established to the satisfaction of the conscience of the Court by the party
contending that there was such an adoption.
In Mst. Gulkandi and Others Vs. Prahlad and Another, the Division Bench referred to Section 15 of the Act to show that a valid adoption
cannot be cancelled. But at the same time in that case, on facts, the Division Bench observed that it was nobody''s case that the endorsement that
was made on the adoption deed was intended by the adopted person or anybody on his behalf to renounce his inheritance in the adoptive family.
Therefore, on facts that issue relating to Section 15 did not come up for consideration in this case.
In Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, , the Supreme Court held,
It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies
upon him by proof of the factum of adoption and its validity.... Though there is no legal prohibition, it is well known that ordinarily an only son is
neither given nor taken in adoption.... Unless there were compelling and extraordinary circumstances which necessitated dispensing with all
formalities, it is unthinkable that in a village there could have been an adoption made in such an affluent family without pomp and show.
So the above decisions indicate how we should decide the question. Let us see the facts.
The adoption deed is dated 24-10-1969. Pitty Indrasenu was 52 years then. But he was obviously and admittedly of failing health. He died very
soon on 27-02-1970. In fact, we find that the registration of the adoption deed itself was made at the Nursing Home. The deed of adoption is
signed only by Pitty Indrasenu and not by the natural father. The recitals are as follows:
HEREAS THE BOY BY NAME M.M. CHANDRASEKAR who is the son of my brother-in-law M.S. Munuswamy, was looked upon by me
and my wife with love and affection.
I have on this the 24th day of October 1969 adopted M.M. Chandrasekar S/o. M.S. Munuswamy, residing at No. 76, Jeera-Secun-derabad-3,
(Having come down to Madras) a boy of 7 years as my son.
The said boy M.M. Chandrasekar has been given to me in adoption by his natural father the said M.S. Munusamy.
There is nothing to show that the natural father had also come down to Madras.
On 29-10-1999, parents of the first Respondent had written a letter that they question how their only son could suddenly become eligible for
being the Donor-trustee, 32 years after Pitty Indrasenu''s death. They called the adoption deed as concocted and they questioned how in spite of
the adoption and the first resondent becoming a major, the second Respondent continued to act as the Donor-trustee. They also brought to the
notice of the Managing Committee that the ceremony was not performed and that the first Respondent''s name was not changed to Pitty and that
the first Respondent did not attend the death of Pitty Indrasenu nor did he perform the obseques as per Hindu Rites and that even the marriage
function of the first Respondent was performed only by them as the natural parents. This was followed by another letter on 22-11-1999 which has
been signed by the first Respondent where they have once again declared that the natural father of the first Respondent is M. Munuswamy and the
first Respondent is by no means the adopted son of Pitty Indrasenu and Pitty Leelavathi and even if there was an illegal deed prepared
approximately 32 years'' ago with the connivance of the second Respondent ""when her husband was in death-bed without the moral/ the legal
consent of the natural father"" and without ""complying with all the formalities or fulfilling the said obligation"", the deed must ""be deemed to be null
and void"". They have also referred to the distribution by the second Respondent of some amount to their son on par with others.
It is the case of the counsel for the first Respondent that it is this distribution of money which was not to the expectation of the natural parents of
the first Respondent that provoked the natural father to write the letter. Actually there was a valid adoption. The learned Counsel also submitted
that it is not explained how this letter fell into the hands of the Appellant. However, there is no denial that this letter was indeed written by the
natural parents and the first Respondent. The only case is that there were other reasons for the letter to be written and the statement in the letter
that there was no adoption was a reaction to certain events that had happened and not a statement of fact. This letter was addressed to one
Bhoopal who was nominated by the second Respondent to be on the Board of Trustee. Therefore, it was contended that all these factors have to
be seen in the proper perspective to understand the circumstances under which those letters were written. At this stage, we have only the letters
before us for deciding the primafacie case. It is likely that the first Respondent may prove his case by adducing evidence at the time of trial. But we
do not have the benefit of that evidence now.
l0. Further, on 27-12-1999, the second Respondent had written a letter to the Secretary and Co-Respondent of the Trust where she has referred
to her nomination of the aforesaid Bhoopal as a trustee from the family of donors for a period of 5 years from 27-10-1997 and that it has been
counter-signed by the first Respondent. She had also referred to the letter dated 22-11-1999 by which the natural father of the first Respondent
has questioned the very factum of adoption and his unwillingness for the adoption of the first Respondent by her and her husband. She has stated
that ""It was with bona fide belief that Mr. M.M. Chandrasekar continues to be my adopted son, the earlier letter dt. 30.06.97 was countersigned
by him."" She has said that a dispute has been raised by his natural father and in the event of him not continuing to be her son, she as a only
descendant of Sir Pitty Theagaraya Chetty would be entitled to nomitate a Trustee from the family of donors. So even in this letter her stand is that,
even if he is not her son as a descendant, she has the right to nominate a trustee.
We must also refer to the orders passed by this Court on 16-07-1953 and 19-10-1970. On 16-07-1953, the Scheme was amended where it
provided that two of the members of the trustee should be appointed by the adult male members of the family of the donors. On 19-10-1970,
pursuant to an agreement dated 05-04-1970, the Scheme was amended as follows:
Two trustees to be appointed by the adult male members of the family of the donors ie the family of Pitty Theagaraya chetty senior and Sir Pitty
Theagarayachetty junior there are no adult male members of the family of donors the minor male members of the family if any of the family
represented by their guardian shall exercise their right to appoint a trustee; in the absence of the above two categories the widow or widows of the
deceased adult male members of the family of the donors shall be entitled to appoint trustees; each branch shall not be entitled to have more than
one trustee representing them in the board of trustees.
In this application, the first Respondent is shown as the sixth Respondent and in the deed of agreement dated 05-04-1970, the first
Respondent is shown as a party of the second part alongwith the second Respondent herein and he has been described P. Chandrasekar son of
late Pitty Indrasenu minor aged about 5 years represented by his mother and his natural guardian P. Leelavathi (abovesaid). In the body of the
agreement there is reference to the fact that the first Respondent is only aged five yers and will not be in a position to appoint trustees for nearly
thirteen years and it is also stated that the second Respondent will act as guardian of the first Respondent in appointing one trustee till he attains
majority. But even after the first Respondent attained majority, it is the second Respondent who made the nomination. The first Respondent only
countersigned this. His right to nominate as the son has not been exercised. (Emphasis supplied)
In 2006, that is seven years after the letters mentioned above, the first Respondent filed a suit for declaration. In that he has stated that this
adoption was also evidenced by a registered deed of adoption dated 24-10-1969 registered as Doc. No. 656/1969 and that the first Respondent
has also performed the obseques of late. Pitty Indrasenu. In this Plaint, it is averred that the letters were written in a fit of anger since the second
Defendant did not pay the entire sale proceeds of her house which was sold by her to the Plaintiff. According to him once an adoption takes place
and it is evidence by a registered deed of adoption it is presumed to be valid and the same cannot be doubted or questioned. On 01-09-2006, a
memo was filed stating that the Defendant being the natural and adoptive mother of the Plaintiff had hereby declared that the Plaintiff is the adopted
son of P.T. Indrasenu and the second Defendant herein and they have no objection in a decree being granted as prayed for in the above suit. The
memo is allegedly signed by the Defendants in the suit by the adoptive mother and natural mother and also the counsel. The learned Judge had
recorded that ""On petition hearing advanced Mrs. Sumithra files vakalath for Defendants 1 and 2. Defendants submitting to decree. Suit is decreed
as prayed for with no costs.
As we have observed earlier this suit had been filed only after the observation in Application No. 732 of 2006 which was a petition for
directing one C. Sivasankaran to demit office and to permit one Saravanan to assume office of the first Respondent-Trust. The application claimed
that the nomination of the sixth Respondent namely Sivasankaran though done by the second Respondent herein was neither attested or confirmed
and therefore, he cannot continue as Trustee. This application was resisted by the said Sivasankaran stating that it is figment of imagination to call
the said Chandrasekar namely the first Respondent to call himself as the adopted son of P.T. Indrasenu and that the writing of the letter would
indicate that the said adoption was not valid or true. After hearing both sides, the learned Judge observed that it is not in controversy that the
second Respondent had nominated one Bhoopal for the period between 1992 and 1997 and renewed in 1997 and that even in 1992 when the
second Respondent nominated Bhoopal, the first Respondent had become major. The learned Judge observed that ""after becoming major till this
day i.e. about 20 years when he gave this letter of nomination, he has never acted as a Trustee."" The learned Judge also observed that, ""it is also
pertinent to point out that in the letter placed in the hands of the Court not only the natural parents of Chandrasekar but Chandrasekar himself has
also joined with them to state that there was no adoption in fact"". Therefore, the learned Judge observed as already stated that all the facts before
the Court would at no stretch of imagination confer the right of Chandrasekar as adoptive son. However, the learned Judge also noted that the
question whether Chandrasekar is a adopted son or not was not the dispute before the Court. But it cannot be denied that these comments were
the cause for the Respondent to file the suit.
We have narrated the facts and referred to the documents relied on by the Appellant as well as the Respondents. According to the
Respondent the decree is in his favour and the agreement entered into between his adoptive mother and the senior branch which acknowledges
him as the adopted son is in his favour. According to the Respondent the primafacie case is not in favour of the Appellant.
The essentials of adoption are,(i) the person adopting has the capacity, and also the right, to take in adoption;(ii) the person giving in adoption
has the capacity to do so; (iii) the person adopted is capable of being taken in adoption. Nothing has been brought to our notice that these
requisities were not satisfied. But the points in favour of the Appellant are,
u/s 11(vi) of the Hindu Adoption and Maintenance Act, the child to be adopted must be actually given and taken in adoption by the parents or
guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption: Provided that the
performance of datta homam shall not be essential to the validity of adoption. This element is absent.
The adoption deed was not signed by the natural father;
The natural parents do not reside in Chennai, but, the adoption deed was executed in Chennai in a Nursing Home when admittedly the alleged
adoptive father was unwell. There is nothing to show that the natural parent had come down to Chennai.
Apart from the statement that the said boy has been given in adoption there is nothing else to indicate that he was actually given by the natural
father. The father himself has stated in his letter that he never gave his son in adoption and he has stated that he is the only son and there was no
religious ceremony is not gone into. The Act itself provides that datta homam is not necessary, but the denial here is of the adoption itself.
The sine qua non for a valid adoption is that the child should be given by the natural father. The father has said that he did not give the son in
adoption. The circumstances under which the letter was written may be proved by evidence, but at this stage we have the letter which is contra-
indicative of a valid adoption.
Section 15 of the Hindu Adoption and Maintenance Act will not come to the help of the first Respondent at this stage because it is for him to
prove that there was a valid adoption which he could have done before the City Civil Court by examining the mother who gave him and the mother
who took him. If there had been oral evidence that actually the natural mother and her husband gave their son to the adoptive parents and the
adoptive mother had said that they have taken him, that would have been the best evidence, which would have specifically dispelled the suspicion
raised by the letters. Instead for some reason they chose to submit to the decree. The first Respondent himself has signed the letter alongwith his
natural parents. The important order, to which the first Respondent and the senior branch were parties, gave him the right to nominate the trustee
once he attained majority. He must have attained majority in 1983 because he was five years in 1970. From 1983 till date, he has not exerted his
right. According to him, he signed the nomination along with his mother. That is not sufficient. If the mother''s authority to sign the nomination came
from her capacity as his natural guardian, there may be some strength in the submission. Here, the mother in her own right can nominate a Trustee
from the family of the donors to the Board of Trustees. Her right to nominate is not dependent on the fact that she is the mother of the adopted
son, but it comes from her status as the widow of Pitty Indrasenu. In that capacity, she had the right to sign and she had been exercising that right.
She was quite conscious of the nature of the right she was exercising as we have seen from the letter dated 22-12-1999. Even in the letter which is
in her own writing she could have easily said that there was a giving and taking of the son and there was a valid adoption, but she has not said so.
On the contrary she had only said that ""In the event of him not continuing to be my son"". So this also adds to the weakness of the Respondent''s
son. Another factor in favour of the Appellant are the initials of the first Respondent. The surname of a child who is given in adoption would have
been changed. The ""inte peru"" or surname is very important. The Respondent has continued to use the same ''inte peru'' of his natural family which
is ''Matcha'' instead of ''Pitty'', which is the name of the alleged adoptive family. The Supreme Court held that in matters of adoption the Court
should not have even a cloud of suspicion because Adoption and Wills divert the natural mode of succession. Against the decree of the Civil Court
and the alleged acquiescence Pitty Senior Branch, we have the natural father''s categoric stand that there was no adoption. The latter has more
weight.
In these circumstances, we are of the opinion that the Appellant has made out a primafacie case for grant of injunction. Further if we assess the
balance of convenience, the first Respondent has not exercised his right even though he had attained majority long ago, so the injury to him if he has
to wait till he proves his case is far less than the injury that will be caused if we allow an ""interloper"" to have the right of an adopted son. It is
needless to say that the truth of adoption can be proved by the first Respondent by adducing oral and documentary evidence at the time of trial.
These are just primafacie findings on the basis of the documents produced before us, for the purpose of deciding the grant of injunction.
When the case was pending it was reported that the second Respondent was died and the first Respondent should be permitted to continue
the proceedings as her adopted son. In view of the decision in the appeal, we close the memo filed under Order XXII Rule 2, Code of Civil
Procedure. The impugned order is set aside and the appeal is allowed. No costs.