IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18..09..2009 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU S.A.Nos.1237 of 2006 and M.P.Nos.1 of 2006 and 1 & 2 of 2007, S.A.Nos.1238 and 1239 of 2006 and M.P.Nos.1 and 2 of 2007, S.A.No.1274 of 2006 and M.P.Nos.1 of 2006 and 1 & 2 of 2007 and S.A.Nos.1275 and 1276 of 2006 and M.P.Nos.1 & 2 of 2007 S.A.No.1237 of 2006 G. Panneerselvam ... Appellant Vs 1. Ayyannan 2. Guptha Venkatrama Chettiar (died) 3. V. Sekar 4. Krishnan ... Respondents The Second Appeal is filed under Section 100 of Civil Procedure Code against the Judgement and Decree in A.S.No.69 of 2005 by the Principal District Judge, Salem, confirming the Judgment and Decree dated 26.07.2004 of the Additional Subordinate Judge, Salem, in O.S.No.62 of 1996. For Appellants : Mr.R. Viduthalai [in all S.As] Senior Counsel for Mr.L.N. Pragasam For Respondents : Mr. K.M. Vijayan [in all S.As] Senior Counsel Mr. S.V. Jayaraman Senior Counsel for Mr.V. Srinivasan C O M M O N J U D G M E N T 1. The following are the gist of the pleadings of the plaintiff in O.S.No.792 of 1993 who is defendant in all other suits:- 1.(a) The properties covered by the suits are coffee estate lands sprawling to an extent of 48.76 Acres situated in Mundagambadi village in Yercaud Taluk, a house and Rice mill with godown in Kannankurichi, Salem. They originally belonged to one Rengayya Chettiar, who is elder brother of Venkatarama Chettiar who is paternal grandfather of the plaintiff. At the time of filing of the suit the plaintiff Krishnan was 14 years of age. He was declared as major on 3.7.2000 by order passed in I.A.No.381 of 2000. 1.(b) Rengayya Chettiar had two wives. First wife is one Janaki Ammal through whom he had one daughter by name Amsaveni who was insane from birth. After the death of Janaki Ammal, he married the first defendant Padmavathi @ Padmalochini (hereinafter referred to as Padmalochini). She had no issues. She did not live with her husband and she filed suit for maintenance and got decree in her favour. Rengayya Chettiar preferred two appeals in A.S.No.684 of 1992 and A.S.No.718 of 1981. Pending hearing of the appeals, he died on 28.12.1982. While he was hale and healthy, he executed a Registered Will on 14.01.1980, bequeathing all his properties to the plaintiff by appointing one V. Sekar, father of the plaintiff as testamentary guardian to administer the estates till the minor attained majority. On 28.1.1980, he also settled the properties in favour of the plaintiff by means of a registered settlement deed. Since he was very old aged 82 years, having no male issues, he adopted the plaintiff on 30.01.1980 by performing "Dathahomam" for adoption in the presence of elders. At that time Padmalochani was also present. Subsequently an adoption deed was also written and registered. 1.(c) After the demise of Rengayya Chettiar, plaintiff Krishnan filed applications in the appeals to implead him as party before the High Court Madras and the High Court directed the court below to hold an enquiry as to whether the plaintiff alone was legal representative to the deceased. Padamalochani received two lakhs from the next friend of the minor plaintiff then and gave it in writing that she did not have any interest in his properties. She has also accepted therein that the deeds in favour of minor plaintiff were valid. Because of her voluntary statement, the Court also decided that the plaintiff is the legal representative of the deceased. After the settlement, the plaintiff got the properties and had been enjoying through his father and next friend V. Sekar. Patta was changed to his name and he has been paying the land revenue also. 1 (d). As regards the settlement executed by Rengayya Chettiar, he paid a sum of Rs.72,000/- as gift tax to the Income Tax Department. It was paid through his auditor one Sundaram. During second week of October 1993, it was given out that Padmalochani sold the properties to 3 to 16 defendants with the assistance of the second defendant. The said sales do not affect the rights of the plaintiff. The plaintiff alone has been in possession and enjoyment of the properties, defendants could not get any patta from the revenue department. Hence, suit has been filed for declaration and permanent injunction. 2. The following are succinct allegations of defence contained in the written statement and the plaints filed by Padmalochani:- 2.(a) It is false to state that on 14.1.1980, Rengayya Chettiar executed a will in favour of the plaintiff. It is equally incorrect to state that on 28.1.1980 he settled the properties in favour of the plaintiff. It is not admitted that on 30.1.1990 Regayya Chettiar adopted plaintiff and she was also present at the time of adoption. She was not informed by her advocate Mr. P.T. Duraisamy while the enquiry was held and the plaintiff was declared as legal representative of the deceased Rengayya Chettiar. Only after the receipt of summons in O.S.No.792 of 1993 she came to know that a full satisfaction memo was filed on her behalf after receipt of Rs.2,00,000/-. Immediately she sent a registered notice to the Advocate P.T. Duraisamy cancelling her vakalat and also sent complaint to Tamil Nadu Bar Council against the advocate and the same is pending. Above said full satisfaction memo is not binding on her. She had never received Rs.2 lakhs and not signed the documents. She is the sole representative for the deceased. It is denied that in pursuance of the settlement, the plaintiff took possession on 28.01.1980. Rengayya Chettiar enjoyed the property and after his death this defendant is in possession. 2.(b) In O.S.No.133 of 1980, she has not admitted the Will and Settlement. On 21.12.1982 Rengayya Chettiyar executed a Will in her favour which was attested by advocate P.T. Duraisamy. She executed sale deeds in favour of defendants 3 to 16 and one Paneerselvam. She had to sell the property for medical expenses and funeral expenses of her husband Rengayya Chettiar and for like expenses for Amsaveni. Since the plaintiff was not a party to the earlier suits, he need not pay Rs.2 lakhs to her. By virtue of the Will dated 21.12.1982, the earlier Will and Settlement Deed were cancelled. As per the plaintiff, when he is adopted son of Rengayya Chettiar, the suit is not maintainable, as Sekar, his natural father acts as his next friend. Hence the suit has to be dismissed. 3. In the written statement filed by the 13th defendant adopted by 3 to 12 and 16th defendants, the following are found:- It is false to state that during the life time of Rengayya Chettiar, the first defendant did not live with him. Padmalochani Ammal filed maintenance suits since certain persons attempted to grab the properties of Rengayya Chettiar taking advantage of his ill health. The Will, Settlement and Adoption deeds projected by the plaintiff are created ones and they had not been given effect to. From the first defendant Padmalochani, these defendants have purchased the properties for valuable consideration. There is no cause of action for the suit. The Court fee paid is not correct. The plaintiff could not challenge the sale deeds executed by her. Hence the suit may be dismissed. 4. The written statement filed by 17th defendant contain the following contentions:- 4.(a) This defendant has purchased 11 Acres of land in S.No.71 on 13.8.1993 from Padmalochani, got possession and is enjoying by paying land revenues. Father of plaintiff is one Sekar who is son of Venkatarama Chettiar, who is step brother of Rengayya Chettiar. Both the step brothers were not in talking terms. The Will, Settlement and Adoption deeds are not admitted. They are falsely fabricated by the plaintiff and his father. In 1970, Rengayya Chettiar fell down and his pelvic bone got fractured. At that time Venkatarama Chettiar took him to Salem town house and managed to get three documents from him taking advantage of his invalidity. On 20.12.1982 Rengayya Chettiar executed the Will in favour of Pamalochani and one Muniyammal, his concubine by which he has cancelled the above said three documents. Will dated 20.12.1982 is his last Will. 4.(b) The plaintiff filed C.M.P.No.1663 of 1983 to implead him as party and the same was allowed, against which Padmalochini preferred L.P.No.15 of 1986 and 176 of 1986 before the High Court in which the orders of the lower Court were set aside and the trial Court was directed to ascertain who was the legal representative for Rengayya Chettiar. The Principal Sub-Judge, Salem, rendered finding after enquiry that the plaintiff Krishnan is the legal representative of the deceased. Holding of enquiry was not intimated to Padmalochani by her advocate. She did not receive Rs.2 lakhs. She also filed O.S.No.469 of 1994 for declaration that the full satisfaction memo is not true. 4.(c) Padmalochani preferred C.R.P.No.160 of 1995 before the High Court against the Order of the Sub-Judge, Salem, deciding that the plaintiff is legal representative. The said Civil Revision Petition was dismissed. She carried the matter before the Supreme Court in S.L.P.No.23257 of 1995. The Supreme Court decided that Padmalochani cannot prevent the Court from impleading the plaintiff as legal representative since she has filed O.S.No.472 of 1996 before the District Munsif Court, Salem for declaration that the plaintiff is not legal representative of Rengayya Chettiar. The Order of the Sub-Court is not conclusive. Plaintiff is not adopted son of Rengayya Chettiar. Neither the plaintiff nor his father participated in the funeral ceremony of Rengayya Chettiar. This defendant and his brother's sons performed the obsequies. Acceptance of Padmalochani was not obtained for adoption. By getting an interim injunction in I.A.No.10 of 1983 in O.S.No.9 of 1983 the plaintiff managed to get patta by persuading revenue authorities. Thereafter he allowed the suit to be dismissed for default. By possessing patta, he cannot claim right over the properties. For the family necessities Padmalochani sold the properties to the defendants 3 to 16. The defendants are enjoying specific portions which were purchased by them. Hence, the suit may be dismissed. AS TO OTHER SUITS: 5.(i) O.S.No.62 of 1996 was filed by one Panneer Selvam who is a purchaser from Padmalochani Ammal, in which he has stated that on 13.8.1993 the properties covered by the sale deed were purchased by him from Padmalochani Ammal. The other allegations in the plaintiff are as found in the written statement filed by Padmalochani Ammal. 5.(ii) 5th defendant krishnan is plaintiff in O.S.No.792 of 1993. He filed written statement which was filed by 4th defendant his father and next friend which was adopted by 3rd respondent. In this written statement, identical allegations are contained as stated in the plaintiff in O.S.No.792 of 1993. 5.(iii) O.S.No.374 of 2002, O.S.No.376 of 2002, O.S.No.400 of 2002 and O.S.No.640 of 2002 have been filed by Padmalochani and the then minor Arun Chakravarthi Gupta, against the plaintiff Krishnan and his father Sekar. In all the plaints, her pleadings are similar as found in the written statement filed by her in O.S.No.792 of 1993. 6. In all the cases, the plaintiff Krishnan and his father Sekar filed written statements with the allegations as stated in the plaint in O.S.No.792 of 1993. 7. The trial Court framed issues on the strength of pleadings in all the suits and answered in favour of the plaintiff Krishnan. The declaration and permanent injunction prayed for by him were granted in O.S.No.792 of 1993 and other 5 suits, where he is defendant, were dismissed by the trial Court viz., the Principal Sub-Court. In appeals, the Principal District Judge confirmed the common judgment and decrees passed by the Trial Court and hence the appellants are before this Court. 8. At the time of hearing the appeals for admission, by consent of both sides, the main appeals were taken up for final hearing and arguments were also advanced by them. The arguments of all the learned counsel on both sides were focussed on the substantial questions of law suggested by the appellants in the memorandum of appeals under ground No.31 in S.A.No.1275 of 2006, among the proposed substantial questions of law, No.(a), (e) and (g) were concentrated by counsel for both sides and since the entire factual scenario is attracted to them, this Court framed substantial questions of law as follows:- "(i) Whether the adoption dated 30.01.1980 under Ex.A-34 is valid? Whether Padmalochani offered consent for the adoption and if it is not so, whether the adoption is hit by Section 7 of the Hindu Adoption and Maintenance Act 1956? (ii) Whether the settlement dated 28.1.1980 under Ex.A-33 in fvaour of Krishnan is valid and whether it was given effect to? (iii) Whether the Will dated 14.1.1980 under Ex.A-35 was executed by Rengayya Chettiar in sound disposing state of mind and it is valid? What is the effect of later Will Ex.B. 27 dated 20.12.1982?" FACTS IN TERSE: 9. (i) The suit properties originally belonged to one Subramania Chettiar. He had two wives. Rengayya Chettiar is his son through first wife and Venkataraman Chettiar is son of second wife. On 16.05.1955, Subramania Chettiar effected a partition among the sons and both the sons got their properties separately. Janaki Ammal was first wife of Rengaiyya Chettiar. They had a daughter by name Amsaveni who was insane since birth. The second wife is Padmalochani. She had no issues. Muniammal was servant maid in the house of Rengayya Chettiar with whom he developed intimacy and were living as husband and wife. Hence there was friction in the relationship of Rengayya Chettiar and Padmalochani which led her to file cases in O.S.No.133 of 1980 and O.S.No.139 of 1980, suits for maintenance for herself and Amsaveni respectively. A.B. Gopalan is brother of Padmalochani, who was managing the properties of Rengayya Chettiar. Venkatarama Chettiar was residing in Salem, Dr. Ramanathan Street. His son is V.Sekar and grandson is Krishnan the plaintiff. 9.(ii) In the maintenance suits, decree were passed directing Rengayya Chettiar to pay Rs.1000/- each to Padmalochani and Amsaveni. There upon he preferred appeals in A.S.No.718 of 1981 and 684 of 1982 before the High Court. Pending appeals, Rengayya Chettiar died on 28.12.1982. Hence Krishnan through his father filed C.M.P.No.1663 of1983 and 1665 of 1983 to implead him as legal representative of Rengayya Chettiar on the strength of the Will, Settlement Deed and Adoption Deed. Those petitions were allowed, against which Padmalochani filed L.P.A.No.175 of 1986 before the High Court, in which the High Court directed the Sub-Judge, Salem to ascertain who is actual legal heir for Rengayya Chettiar. Pursuant to the said direction, the Sub-Judge held an elaborate enquiry and recorded finding that Krishnan is legal heir for Rengayya Chettiar and submitted the same to the High Court. 9.(iii) In order to bring the disputes to an end, Padmalochani received a sum of Rs.2 lakhs as full quit and filed full satisfaction memo through her advocate Mr.P.T. Duraisamy, besides executing a separate agreement. The said advocate also represented that no further proceedings need to be taken in the above said appeals and hence those appeals were dismissed. 9.(iv) Padmalochani Ammal filed S.L.P.No.2625 of 1995 before the Supreme Court contending that she was not intimated as to the enquiry for ascertaining the legal heir of Rengayya Chettiar, that she did not receive Rs.2 lakhs and full satisfaction memo was filed without her knowledge. The S.L.P. was disposed of by the Honourable Supreme Court by holding that the respondent (Krishnan) was impleaded as legal representative after detailed enquiry as per Order 22 Rule 5 and 151 C.P.C., which does not prevent the petitioner if so advised, from questioning the order by way of subsequent suit or the amendment to suit, according to law. 9.(v) The entire circumstances of this case revolve around the following three events:- (a) On 14.1.1980 Rengayya Chettiar executed a registered Will Ex.A-35 bequeathing his properties to Krishnan. (b) On 28.1.1980 he also executed a registered Gift Settlement Deed Ex.A-33 in favour of Krishnan with respect to his properties. (c) On 30.01.1980 Rengayya Chettiar adopted Krishnan son of V. Sekar and his wife Aravindalakshmi by means of a registered Adoption Deed, Ex.A-34. ADOPTION: 10 (i) In the Adoption Deed Ex.A.34 Rengayya Chettiar has stated that he had no male issues; that he is aged 82 years; that he had executed a gift settlement deed in favour of Krishnan on 28.1.1980 and in order to attain mukthi and for performing obsequies he entertained intention to adopt Krishnan for which on the same date i.e., on 30.1.1980 he performed homam between 9.30 a.m. to 11.30 a.m. during 'Punarpoosam Natchathiram' and as per the 'Sastra', he adopted him and that the said adoption ceremony was celebrated in Salem Vasavi Mahal in which the parents of Krishnan and other elders participated. 10.(ii) In Ex.A-24, certified copy of the deposition of Rengayya Chettiar in O.S.No.133 of 1980, he has stated that he executed settlement in favour of grandson of his brother and Ex.A-3 is copy of the settlement deed. As far as execution of Ex.A.33 is concerned, he himself admitted consciously the execution in earlier proceedings in which Padmalochani Ammal was plaintiff. There is no allegation that during the said period, Rengayya Chettiar was suffering from any physical or mental illness. Though he was an octogenarian, he commanded good health at the time of adoption and the recitals in the adoption deed would indicate that all his mental and physical faculties were functioning well. The execution of adoption deed and the factum of adoption have been established. 10.(iii) As to the validity of the adoption, the same receives scathing attack from the appellants that Padmalochani did not offer her consent for adoption and hence it is invalid in view of Section 7 of Hindu Maintenance and Adoption Act. The said provision goes thus:- 7. Capacity of a male Hindu to take in adoption: Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption, provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind." 10.(iv) Padmalochani Ammal has pleaded that she was not present at the time of adoption and without her the adoption took place. But the fact of her presence during adoption was discussed by the Court in earlier proceedings. Ex.A.25 is deposition of Padmalochani Ammal in Guardian Original Petition No.1309 of 1984 in which she has stated that if the court arrives at a conclusion that the adoption is true, she may be appointed as guardian for minor Krishnan and that his father Sekar should not be appointed as guardian. In the proceedings in O.S.No.133 of 1980 and G.O.P.No.39 of 1994 the factum of adoption was pleaded and deposed by the parties. But Padmalochani did not project her contention that she was not consenting party to the adoption. 10.(v) Ex.A-50 is judgment delivered by the Principal Sub-Judge Salem in O.S.No.613 of 1986 filed by minor Krishnan through his next friend and father Sekar against M/s.Nalli Textiles, Chennai, for declaration and permanent injunction restraining the defendant from proceeding with the decree in C.S.No.104 of 1966 on the file of the High Court and to set aside the order passed in E.A.No.744 of 1990 and 2929 of 1970 dated 10.11.1986. Of course, Padmalochani was not a party to the suit. In the judgment, the learned judge has observed that as per the decision in AIR 1965 Madras 191 [Ganga Bayee and another v. P.G. Krishna Rao] when the wife is present at the time of adoption, it must be presumed that she has given her consent for adoption and that it is decided that since Padmalochani was present in the photographs taken by P.W.2 Murugesan on 30.1.88 at the time of adoption, it must be presumed that she gave her consent. 10.(vi) Padmalochani filed the suit in O.S.No.663 of 1995 on the file of the District Munsif Court, Salem, for declaration that the adoption deed dated 30.1.1980 is not true and valid document and not binding on her. The suit was subsequently transferred to Sub-Court Salem and re-numbered as O.S.No.640 of 2002. The suit was filed after 15 years from the date of adoption. In the earlier proceedings, she has participated and made herself acquainted with the fatum of adoption. But she did not plead adverse to adoption nor had she moved her little finger to challenge the same. In the said plaint she has alleged that she has knowledge of the adoption deed in 1993 when received plaint copy and summons in O.S.No.792 of 1993. But she was already put to knowledge about adoption as early as on 25.6.1981 itself, when oral evidence was recorded in O.S.No.133 of 1980. 10.(vii) O.P.No.5 of 1983 is the petition filed by Muniammal under Order 32 Rule 3 of C.P.C to permit her to institute a suit for partition against Krishnan and Padmalochani, in informa pauperis. The certified copy of the said O.P. is Ex.A.20. The learned Sub-Judge, Salem, dismissed her petition directing her to pay Court fee and in appeal before this Court in C.M.A.138 of 1987, the trial Court order was confirmed. But even afterwards she did not pay Court fee and hence the plaint was rejected by the trial Court on 23.9.1993. In the said plaint Muniammal has stated that the alleged adoption is not true and legal. In the said proceedings, Padmalochani was also a party and hence she was aware of the fact of adoption even in the year 1983. 10.(viii) The other proceedings also show that she had been conscious about the adoption, however, only in the year 1995 she had come forward to file a suit challenging the adoption. Hence it is not correct to say that only in the year 1993 she came to know about the adoption. Having knowledge of adoption and remaining quiet without questioning it, she has allowed the period of limitation to expire and it is too late today for her to challenge the adoption. The preponderance of probabilities would go a long way to show that she was a consenting party to the adoption and O.S.No.663 of 1995 is her after thought. Pending of trail of the suit, she died on 8.4.1996 and Amsaveni also breathed her last on 18.12.1991. 10.(ix) The facts of the present case would amply amplify that Padmalochani Ammal was having knowledge of the fact of adoption right from inception and she did not have any intention to question the same and hence the irresistible conclusion would be that she was present during adoption and gave her consent. Consent of wife may either be oral or in writing, express or implied, and has to be proved by the person supporting the adoption. It need not be directly proved but can be inferred from circumstances (Mayne's Treatise on Hindu Law & Usage  Sixteenth Edition  page 579). In the light of abovestated observations it is held that the adoption under Ex.A-34 is not at all hit by Section 7 of the Hindu Maintenance and Guardianship Act and it is valid. In the order passed by the Principal Sub-Judge, Salem on 21.2.1990, a copy of which is Ex.A-5, where an enquiry was held in obedience to the direction of the High Court to ascertain who is legal heir to the deceased Rengayya Chettiar, the events of adoption and execution of adoption deed were putforth by the plaintiff Krishnan, which were discussed and the Court reached a conclusion that the said Krishnan is sole legal heir to the deceased Rengayya Chettiar. It was affirmed by superior courts also. The substantial question of law is answered that implied consent was there on the part of Padmalochani Ammal, thought not in express