Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 72077208/2008
Pharez John Abraham (Dead) By Lrs. …Appellants
Versus
Arul Jothi Sivasubramaniam K. & others …Respondents
J U D G M E N T
M.R. SHAH, J.
Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 22.11.2006 passed by the High
Court of Karnataka at Bangalore in R.F.A. No. 546/2004 and R.F.A.
No. 940/2004, the appellant herein – original defendant no.2 has
preferred the present appeals.
2. The facts leading to the present appeals in nutshell are as
under:
That one John D. Abraham is the propositus. That original
defendant no.1 is the wife of the said John D. Abraham. Original
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2019.07.02
16:57:27 IST
Reason:
defendant no.2, defendant no.3, one Triza Kalyani John (wife of
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original plaintiff no.1) and one late Maccabeaus are the children of
propositus. That the suit schedule house is the estate of the
propositus. That original defendant no.1 – wife of the propositus –
John D. Abraham died intestate during the pendency of the suit. That
after the demise of the propositus, his daughter Triza Kalyani John
married with original plaintiff no.1, who was a Hindu. At the relevant
time, Triza Kalyani John – daughter of the propositus got herself
converted to Hinduism and changed her name as A.S. Meenakshi.
Original plaintiff nos. 2 and 3 are the children born out of the said
wedlock. Triza Kalyani John died in the year 1986. That thereafter
and after the death of the said Triza Kalyani John, the original
plaintiffs – husband of Triza Kalyani John and their two children
instituted original suit no. 591/1987 in the Court of learned City Civil
Judge, Bangalore for partition and separate possession of the suit
schedule property. Original plaintiffs filed the suit seeking share of
Triza Kalyani John (A.S. Meenakshi). It was the case on behalf of the
plaintiffs that the said A.S.Meenakshi @ Triza Kalyani John was
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having 1/4 share in the suit property – property belonged to
propositus – John D. Abraham. The plaintiffs sought the following
reliefs in the suit:
i)
for partition and separate possession of their one third
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right and share, in absolute estate and title, in and in
relation to the properties and premises described in the
schedule ‘A’ hereunder, by metes and bounds, having
due regard to the quality of soil, utility and access to the
buildings and premises thereon and convenience of
enjoyment thereof, directing the defendants to put the
plaintiffs in such exclusive possession and enjoyment
thereof;
ii) appointing one or more Commissioners to inspect the
suit properties and premises and submits proposals,
together with plans and sketches of the buildings thereon
and of the premises thereat, allotting onethird share and
extent thereat to the plaintiffs;
iii) passing final decree in pursuance of the preliminary
decree herein;
iv) directing the defendants to pay the plaintiffs their cost of
the suit and
v)
glaring such other reliefs and making such further orders
as to it may deem fit and proper in the circumstances of
this case.”
2.1 It is required to be noted that initially the suit was filed
only against the two defendants – wife of late John D. Abraham
(defendant no.1) and the appellant herein – Pharez John Abraham,
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son of late John D. Abraham (defendant no.2).
2.2 The suit was resisted by defendant nos. 1 & 2 by filing the
joint written statement. It was contended that John D. Abraham had
another son and daughter, namely, Vasanthi and Maccabeaus. It
was contended that the said Vasanthi and Maccabeaus were born to
John D. Abraham on account of the intimate relationship of John D.
Abraham with St. Pushpa. It was submitted that they are also
entitled to share in the suit property of John D. Abraham. Therefore,
it was requested to dismiss the suit on the ground of nonjoinder of
proper parties. It was also contended on behalf of defendant nos. 1 &
2 that Meenakshi @ Triza Kalyani John being a Christian opted to
marry plaintiff no.1, a Hindu, much against the wishes of the
members of the family. Meenakshi @ Triza Kalyani John expressed
that she will marry plaintiff no.1 by converting herself to Hinduism
and also that a share in the assets of John D. Abraham may be given.
According to the defendants, in pursuance to the said demand put
forth by Meenakshi @ Triza Kalyani John, a sum of Rs.50,000/ and
certain gold ornaments were given to her as defendant nos. 1 & 2 felt
that it was not proper to partition the living house or to induct a non
Christian to stay in the house. According to the defendants,
Meenakshi @ Triza Kalyani John had taken her share in the assets of
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John D. Abraham and therefore the plaintiffs are not entitled to any
share and the suit of the plaintiffs is liable to be dismissed.
3. The learned trial Court framed the following issues:
i) whether plaintiffs prove that they and the defendants
are members of Hindu Joint Family?
ii) Do they further prove that late A.S. Meenakshi is the
st nd rd
wife of 1 plaintiff and mother of 2 and 3 plaintiffs, dies(sic)
as member of joint family and was in joint possession of the
suit properties?
iii) whether defendants prove that there was a family
arrangement or settlement and that late A.S. Meenakshi has
given up her claim for Rs.50,000/?
iv) whether the suit is bad for nonjoinder of necessary
parties?
v)
What is the share of the plaintiffs, if any, in the suit
properties?
vi) Whether the settlement pleaded by the defendants is
binding upon the parties?
vii) Whether the suit is properly valued and requisite court
fee has been paid/
viii)
To what relief, if any, the plaintiffs are entitled?
3.1 That subsequently Vasanthi and Maccabeaus were also
impleaded as parties to the suit and as Maccabeaus had died, his
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widow and his daughter were brought on record. They were joined as
defendant nos. 3 to 5.
3.2 Both the parties led evidence, oral as well as documentary.
That thereafter on appreciation of evidence and considering the
evidence on record, the learned trial Court answered issue no.3 in the
affirmative and held that there was a family arrangement or
settlement and that late A.S. Meenakshi @ Triza Kalyani John has
given up her claim for Rs.50,000/. It was held by the learned trial
Court that in that view of the matter, the plaintiffs are not entitled to
the partition and the share of late A.S. Meenakshi @ Triza Kalyani
John. Consequently, the learned trial Court dismissed the suit. The
learned trial Court also observed and held that the suit was barred by
limitation as John D. Abraham died intestate in the year 1964 and in
Christanity the property would be divided immediately after the death
of the intestate person and that during the life time Triza Kalyani
John @ A.S. Meenakshi has not put forth any claim against the
members of the erstwhile family after 1964 till her demise in the year
1986 and if she wanted any share in the assets of John D. Abraham,
then she should have done so within three years. The learned trial
Court also observed that for separate possession in the suit property,
the period would have been 12 years from the date of the death of
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John D. Abraham and accordingly the limitation got expired by 1976
itself.
4. Feeling aggrieved and dissatisfied with the judgment and
decree passed by the learned trial Court dismissing the suit, the
original plaintiffs preferred R.F.A. No. 546/2004 before the High
Court. Original defendant nos. 3 to 5 also filed a separate appeal
challenging the judgment and decree passed by the learned trial
Court dismissing the suit by filing R.F.A. No. 940/2004.
4.1 That by the impugned common judgment and order, the
High Court has allowed both the appeals and has held that the trial
Court erred in dismissing the suit and in rejecting the claim of
defendant nos. 3 to 5. The High Court has also observed and held
that as the first defendant died intestate during the pendency of the
suit, the two daughters and two sons of John D. Abraham are entitled
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to 1/4 share each. The High Court has held that consequently the
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plaintiffs together are entitled to 1/4 share, the 3 defendant is
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entitled to 1/4 share, defendant nos. 4 & 5 are entitled to 1/4
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share and defendant no.2 is entitled to 1/4 share. The High Court
has directed to draw the preliminary decree accordingly.
4.2 While allowing the appeals, the High Court has observed
and held that though the plaintiffs are Hindus and the property
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belongs to a Christian, still as per the Indian Succession Act plaintiffs
can have partition of a Christian property if a Christian dies intestate.
In support of the above, the High Court has relied upon and
considered the decision of the Calcutta High Court in the case of
Benoy Kumar Mondal v. Panchanon Majumdar, reported in AIR 1956
Calcutta 177 . While allowing the appeals, the High Court also did not
believe the case on behalf of defendant nos. 1 & 2 that A.S.Meenakshi
@ Triza Kalyani John relinquished her share by taking Rs.50,000/.
4.3 Now so far as the rights of defendant nos. 3 to 5 are
concerned, the High Court has observed and held, considering the
decision of the Kerala High Court in the case of Philips Alfred Malvin
, that even if
v. Y.J. Gonsalvis, reported in AIR 1999 Kerala 187
defendant no.3 and late Maccabeaus can be said to be adopted
children, adoption by a Christian couple is permissible and unlike the
Hindu Law there is no law prohibiting the Christian couple to adopt
male or a female child although they may have natural born male or
female child, as the case may be. Relying upon the aforesaid
decision, the High Court has held that defendant no.3 and defendant
nos. 4 & 5 (being the heirs of late Maccabeaus) are entitled to a share,
notwithstanding that the third defendant and late Maccabeaus are
adopted children.
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5. Feeling aggrieved and dissatisfied with the impugned
common judgment and order passed by the High Court, the original
defendant no.2 – Pharez John Abraham (now dead and represented
through legal heirs) has preferred the present appeals.
6. Shri N. Vasudevan, learned Advocate has appeared on
behalf of the appellant(s) and Ms. Shalini Kaul, learned Advocate has
appeared for the respondents.
6.1 It is vehemently submitted by Shri N. Vasudevan, learned
Advocate appearing on behalf of the appellants that in the facts and
circumstances of the case, the High Court has materially erred in not
accepting the case of defendant nos. 1 & 2 that there was a family
settlement by which Triza Kalyani John @ A.S. Meenakshi had given
up her share.
6.2 It is vehemently submitted by Shri N. Vasudevan, learned
Advocate appearing on behalf of the appellants that at the relevant
time Triza Kalyani John wanted to marry plaintiff no.1, who was a
Hindu and there was opposition by her family members and therefore
she converted herself to Hinduism and at that time she relinquished
her share in the property/suit property of John D. Abraham by taking
Rs.50,000/. It is submitted that the High Court has materially erred
in not accepting the same on the ground that there is no Deed of
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Relinquishment executed by Triza Kalyani John @ A.S. Meenakshi
and as such the Deed of Relinquishment is required to be registered.
It is vehemently submitted by Shri N. Vasudevan, learned Advocate
appearing on behalf of the appellants that family settlement need not
be registered and that it can be even oral.
6.3 It is vehemently submitted by Shri N. Vasudevan, learned
Advocate appearing on behalf of the appellants that the settlement in
favour of Triza Kalyani John @ A.S. Meenakshi has been proved on
the basis of evidence on record and preponderance of probabilities. It
is vehemently submitted that John D. Abraham died intestate on
19.10.1964; that Triza Kalyani John in the year 1979 converted to
Hinduism and changed her name to A.S. Meenakshi and she got
married to plaintiff no.1 in the year 1979; that the said Triza Kalyani
John @ A.S. Meenakshi died in the month of July 1986; that at no
point of time the said Triza Kalyani John @ A.S. Meenakshi claimed
her share in the property of John D. Abraham. It is submitted that
only thereafter and after the death of Triza Kalyani John @ A.S.
Meenakshi, the original plaintiff no.1 filed a suit for partition and
separate possession in the year 1987. It is submitted that therefore
the aforesaid conduct of Triza Kalyani John @ A.S. Meenakshi of not
claiming any share in the suit property during her life time though
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John D. Abraham died in the year 1964, would clearly show and
suggest that Triza Kalyani John @ A.S. Meenakshi had relinquished
her share by taking Rs.50,000/ at the time when she converted to
Hinduism to marry plaintiff no.1. It is further submitted that even
defendant nos. 1 & 2 also invested a huge amount in the repair of the
suit house.
6.4 It is further submitted by Shri N. Vasudevan, learned
Advocate appearing on behalf of the appellants that even considering
the aforesaid facts and circumstances, the suit was barred by
limitation. It is submitted that the High Court has materially erred in
holding that the suit was within the period of limitation on the ground
that the suit is filed within one year after demise of Triza Kalyani
John @ A.S. Meenakshi. It is submitted that the High Court has not
properly appreciated and considered that in Christianity, the property
would be divided immediately after the death of intestate person. It is
submitted that as John D. Abraham died intestate in the year 1964,
and that she converted to Hinduism in the year 1979 and the suit
was filed in the year 1987 and therefore considering the case from
any angle, i.e., to claim the share within a period of three years
and/or even the relief for separate possession in the property, the
period of limitation would be 12 years from the death of John D.
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Abraham, the suit was clearly barred by limitation. It is submitted
therefore the High Court has materially erred in holding the suit
within the period of limitation.
6.5 It is further submitted by Shri N. Vasudevan, learned
Advocate appearing on behalf of the appellants that even otherwise
the High Court has materially erred in holding that defendant nos. 3
th rd
to 5 are also having 1/4 share despite the fact that the 3 defendant
and late Maccabeaus were the illegitimate children who were baptised
on 22.7.1951 and 5.6.1959 respectively. It is submitted that even
otherwise the High Court has materially erred in holding that the
adopted Christian children are entitled to his/her share in the
property as it happens in a Hindu family.
6.6 It is vehemently submitted by Shri N. Vasudevan, learned
Advocate appearing on behalf of the appellants that even otherwise
defendant nos. 3 to 5 would not have claimed any share in absence of
any counter claim. It is submitted that therefore as such the appeal
filed by original defendant nos. 3 to 5 being R.F.A. No. 940/2004
would not at all be maintainable.
6.7 Making the above submissions, it is prayed to allow the
present appeals.
7. Both these appeals are vehemently opposed by Ms. Shalini
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Kaul, learned Advocate appearing on behalf of the respondents herein
– the original plaintiffs and the supporting defendants.
7.1 It is vehemently submitted by the learned Advocate
appearing on behalf of the respondents that in the absence of any
Deed of Relinquishment executed by Triza Kalyani John @ A.S.
Meenakshi relinquishing her share and in the absence of any other
evidence that A.S.Meenakshi @ Triza Kalyani John had given
up/relinquished her share by taking Rs.50,000/ and other gold
ornaments, the High Court has rightly disbelieved the same and has
rightly held that defendant nos. 1 & 2 have failed to prove that there
was any relinquishment of her share by Triza Kalyani John @ A.S.
Meenakshi.
7.2 It is vehemently submitted by the learned Advocate
appearing on behalf of the respondents that the High Court has
rightly held, considering the provisions of the Indian Succession Act
that even a nonChristian and in the present case Hindus can claim
partition in the suit property of a Christian died intestate.
7.3 It is further submitted by the learned Advocate appearing
on behalf of the respondents that so far as the finding recorded by the
learned trial Court on limitation is concerned, at the outset, it is
required to be noted that there was no specific issue framed by the
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learned trial Court with regard to limitation. It is submitted therefore
that in the absence of any specific issue framed on limitation, the
learned trial Court ought not to have held that the suit was barred by
limitation.
7.4 Now so far as the impugned judgment and order passed by
the High Court recognising the share of defendant nos. 3 to 5 is
concerned, it is vehemently submitted by the learned Advocate
appearing on behalf of the respondents that, in fact, defendant no.3
and the deceased Maccabeaus were the children of deceased John D.
Abraham out of his marriage with St. Pushpa in the year 1951. It is
submitted that assuming that they were the adopted children of
deceased John D. Abraham, in that case also, even being the adopted
children they are having the share in the property of deceased John
D. Abraham, who died intestate.
7.5 Now so far as the submission on behalf of the appellants –
original defendant nos. 1 & 2 that in the absence of any counter claim
by defendant nos. 3 to 5, the appeal filed by original defendant nos. 3
to 5 being R.F.A. No. 940/2004 was not maintainable at all and
therefore the High Court has materially erred in passing the decree in
their favour holding that original defendant no.3 and defendant nos. 4
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& 5 (being the heirs of deceased Maccabeaus) are having 1/4 share
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in the suit property is concerned, it is submitted that in a suit for
partition, every heir of the deceased who died intestate would have a
right and they can claim the share even without filing any counter
claim. It is submitted that even otherwise such a plea/objection was
never taken before the High Court and therefore now the appellants
are not permitted to take such a plea/objection after having lost
before the High Court.
7.6 Making the above submissions, it is prayed to dismiss the
present appeals.
8. We have heard the learned Advocates appearing for the
respective parties at length.
8.1 At the outset, it is required to be noted and as stated
hereinabove, the suit property initially belonged to one John D.
Abraham. The said John D. Abraham died intestate in the year 1964
leaving behind him his wife – Esther Abraham – original defendant
no.1 and four children – two sons and two daughters, namely, Pharez
John Abraham (original defendant no.2); Triza Kalyani John @ A.S.
Meenakshi (the eldest daughter of John D. Abraham and the wife of
original plaintiff no.1); Vasanthi (original defendant no.3); and Late
Maccabeaus (father of defendant nos. 4 & 5). That in the year 1979,
Triza Kalyani John converted to Hinduism and married with original
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plaintiff no.1. That she died in the year 1986 leaving behind her the
original plaintiffs. That after the death of Triza Kalyani John @
Meenakshi, the original plaintiffs – the husband and children of Triza
Kalyani John @ Meenakshi instituted the present suit for claiming
partition and a separate possession and claimed that Triza Kalyani
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John @ Meenakshi had 1/3 share in the property of John D.
Abraham, who died intestate. It is required to be noted that initially
the plaintiffs, claiming to be the heirs of Triza Kalyani John @
Meenakshi joined original defendant nos. 1 & 2 Esther Abraham,
wife of John D. Abraham and Pharez John Abraham, son of John D.
Abraham and stated that all the three namely original defendant
no.1, original defendant no.2 and Triza Kalyani John @ Meenakshi
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had 1/3 share each in the suit property. However, subsequently,
original defendant nos. 3 to 5 came to be joined as parties. It was
found that defendant no.3 – Vasanthi and late Maccabeaus were the
adopted children of John D. Abraham. The learned trial Court
dismissed the suit on merits as well as on the ground of limitation. In
the appeals preferred by the original plaintiffs and original defendant
nos. 3 to 5, the High Court has decreed the suit and has held that
original plaintiffs, original defendant no.2, original defendant no.3
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and original defendant nos. 4 & 5 (jointly) have 1/4 share each in
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the suit property. The impugned judgment and order passed by the
High Court is the subject matter of present appeals at the instance of
original defendant no.2 (now deceased and represented through the
legal heirs).
9. Having heard the learned counsel for the respective parties
and considering the evidence/material on record, we are of the view
that the High Court has completely erred in holding that the plaintiffs
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would have 1/4 share in the suit property being the heirs of
deceased Triza Kalyani John @ Meenakshi – the daughter of John D.
Abraham. It was the specific case on behalf of defendant nos. 1 & 2
that at the time of marriage of Triza Kalyani John @ Meenakshi with
original plaintiff no.1, she converted to Hinduism and her name was
changed to A.S. Meenakshi. It was the specific case on behalf of
defendant nos. 1 & 2 that at the relevant time when the said Triza
Kalyani John @ Meenakshi had married to original plaintiff no.1 and
converted to Hinduism, there was opposition. However, despite the
same, the said Triza Kalyani John @ Meenakshi converted to
Hinduism and married to original plaintiff no.1 and she was paid
Rs.50,000/ and some gold ornaments for relinquishing her right, if
any, in the suit property belonging to John D. Abraham. The trial
Court believed the case on behalf of defendant nos. 1 & 2, both on
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appreciation of evidence as well as on conduct of Triza Kalyani John
@ Meenakshi. The trial Court also dismissed the suit on the ground
of limitation. It is to be noted that the John D. Abraham died
intestate in the year 1964. Triza Kalyani John, the eldest daughter of
John D. Abraham married to original plaintiff no.1 in the year 1979.
She died in the year 1986. During her life time, she never claimed
any share/partition in the suit property belonging to John D.
Abraham. Only after the death of Triza Kalyani John @ Meenakshi,
the plaintiffs claiming to be the heirs of Triza Kalyani John @
Meenakshi instituted the suit for partition contending, inter alia, that
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Triza Kalyani John @ Meenakshi had 1/3 share in the suit property
belonging to John D. Abraham, who died intestate. Therefore,
considering the aforesaid conduct on the part of Triza Kalyani John @
Meenakshi during her life time, the learned trial Court rightly
accepted the defence on behalf of original defendant nos. 1 & 2 that
the said Triza Kalyani John @ Meenakshi was paid Rs.50,000/ and
some gold ornaments at the time of her marriage with original
plaintiff no.1 and the said Triza Kalyani John @ Meenakshi
relinquished her share in the suit property. It is required to be noted
that original defendant no.2 even incurred the expenditure from his
own income for the purpose of improvement of the property. Original
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defendant no.2 was serving in army and therefore he was having
independent income. Considering the aforesaid facts and
circumstances, the plaintiffs would not be entitled to any share of
Triza Kalyani John @ Meenakshi. Therefore, the learned trial Court
rightly dismissed the suit which was not required to be interfered
with by the High Court. In the facts and circumstances of the case,
that part of the impugned judgment and order passed by the High
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Court holding that original plaintiffs shall be entitled to 1/4 share in
the suit property being heirs of Triza Kalyani John @ Meenakshi
deserves to be quashed and set aside.
10. Now so far as the impugned judgment and order passed by
the High Court holding that original defendant nos. 3 to 5 are also
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having 1/4 share – defendant no.3 and defendant nos. 4 & 5 in the
suit property is concerned, it is the case on behalf of defendant no.2 –
the appellant herein that as the original defendant nos. 3 to 5 did not
file any counter claim in the suit claiming their specific share and the
suit was dismissed, the appeal at the instance of original defendant
nos. 3 to 5 was not maintainable is concerned, it is required to be
noted that the suit was for partition of the suit property amongst the
plaintiffs and the defendants including original defendant nos. 3 to 5.
In a suit for partition, every cosharer would have a right to claim the
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share/partition. Even considering the written statement filed on
behalf of original defendant nos. 3 and 4 & 5, they had specifically
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stated that they are having 1/4 share each in the suit property.
Therefore, when the suit for partition was dismissed, original
defendant nos. 3 to 5 can be said to be aggrieved by the judgment
and decree passed by the learned trial court dismissing the suit for
partition and therefore considering Section 96 of the CPC, the appeal
at their instance would be maintainable.
10.1 At this stage, a decision of this Court in the case of Baldev
Singh v. Surinder Mohan Sharma, reported in (2003) 1 SCC 34 is
required to be referred to. A three Judge Bench of this Court in the
aforesaid decision has opined that an appeal under Section 96 of the
Code would be maintainable only at the instance of a person
aggrieved by and dissatisfied with the judgment and decree. Thus, if
a person is prejudiced or adversely affected by the judgment and
decree, he can file an appeal. Even otherwise, it is required to be
noted that in an appeal preferred by the original plaintiffs challenging
the judgment and decree passed by the learned trial Court dismissing
the suit for partition, it would be open or permissible for original
defendant nos. 3 to 5 to file cross objection. As per the settled
proposition of law, a memo of cross objection is nothing but one form
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of appeal and it takes the place of a cross appeal. In the present
case, instead of filing the cross objection, original defendant nos. 3 to
5 filed a separate appeal challenging the judgment and decree passed
by the learned trial Court dismissing the suit for partition in which
they also claimed share in the suit property, of course in the written
statement. Therefore, original defendant nos. 3 to 5 can be said to be
aggrieved by the judgment and decree passed by the learned trial
Court dismissing the suit for partition claiming to be cosharers.
Even otherwise, it is required to be noted that as such no plea that
the appeal at the instance of original defendant nos. 3 to 5 was not
maintainable, was taken by the appellant before the High Court.
Therefore, the submission on behalf of the appellant – original
defendant no.2 that appeal at the instance of defendant nos. 3 to 5
being RFA No. 940/2004 was not maintainable, cannot be accepted.
11. Now the next question which is posed for consideration
before this Court is, whether defendant nos. 3 to 5 would have any
share in the suit property belonging to John D. Abraham?
11.1 It is required to be noted that initially defendant nos. 3 to 5
were not joined as parties to the suit. However, on the objection
being taken by defendant nos. 1 & 2 that defendant no.3 and late
Maccabeaus are also the heirs of deceased John D. Abraham and
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therefore the suit is bad for nonjoinder of proper parties, the
plaintiffs amended the suit and joined defendant nos. 3 to 5 as
parties in the suit. In the written statement, defendant nos. 1 & 2, in
fact, admitted that defendant no.3 and late Maccabeaus were the
children of John D. Abraham. But in the course of evidence and
arguments, it was stated that defendant no.3 and late Maccabeaus
were not the natural born children but they were adopted children.
Therefore, all proceeded on the premise that defendant no. 3 and late
Maccabeaus were the adopted children. Therefore, we may also
proceed further with the case on the assumption that defendant no.3
and late Maccabeaus were the adopted children of John D. Abraham.
It is required to be noted that in the Christian Law, there is no
prohibition against adoption. Nothing has been pointed out that
unlike in Hindu law, there is any law prohibiting the Christian couple
to adopt male or female child, although they may have natural born
male or female child, as the case may be. Once, it is observed and
held that original defendant no. 3 and late Maccabeaus were the
adopted children of John D. Abraham, both of them were entitled to
the share in the property of John D. Abraham – adoptive father.
11.2 By virtue of adoption, a child gets transplanted into a new
family whereafter he or she is deemed to be member of that family as
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if he or she were born son or daughter of the adoptive parents having
same rights which natural daughter or son had. The right which the
child had to succeed to the property by virtue of being son of his
natural father, in the family of his birth, is thus, clearly to be replaced
by similar rights in the adoptive family, and, consequently, he would
certainly obtain those rights in the capacity of a member of that
family as an adopted son. Thus, original defendant no.3 and
defendant nos. 4 & 5 (heirs of late Maccabeaus) are rightly held to be
the cosharers in the suit property belonging to John D. Abraham and
they are entitled to the respective shares in the suit property
belonging to John D. Abraham. Original defendant no.1 – the wife of
John D. Abraham had died and therefore the suit property is required
to be divided amongst original defendant no.2, defendant no.3 and
defendant nos. 4 & 5. Therefore, original defendant no.2, original
defendant no.3 and original defendant nos. 4 & 5 (jointly) shall have
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1/3 share each in the suit property. Therefore, the impugned
judgment and decree passed by the High Court holding that the
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original plaintiffs shall have 1/4 share, original defendant nos. 2 & 3
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shall have 1/4 share each and original defendant nos. 4 & 5(jointly)
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would have 1/4 share is required to be modified to the aforesaid
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extent holding that original defendant nos. 2 & 3 would have 1/3
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share each and original defendant nos. 4 & 5 jointly would have 1/3
share in the suit property.
12. In view of the above and for the reasons stated above, Civil
Appeal arising from R.F.A. No. 546/2004 is hereby allowed. The
impugned judgment and order passed by the High Court in R.F.A. No.
546/2004 preferred by the original plaintiffs is hereby quashed and
set aside and the judgment and decree passed by the learned trial
Court dismissing the suit is hereby restored.
Civil Appeal arising from R.F.A. No. 940/2004, preferred by
original defendant nos. 3 to 5 is hereby partly allowed and the
impugned judgment and order passed by the High Court is hereby
modified and it is held that original defendant no.2, original
defendant no.3 and original defendant nos. 4 & 5 (jointly) shall have
rd
1/3 share each in the suit property originally belonged to John D.
Abraham. However, in the facts and circumstances of the case, there
shall be no order as to costs.
…………………………………..J.
[L. NAGESWARA RAO]
NEW DELHI; ……………………………………J.
JULY 02, 2019. [M.R. SHAH]
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