IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 22-12-2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE M. SATHYANARAYANA O.S.A.No.20 OF 2008 M. Ramachandran ..Appellant/Plaintiff Vs. 1. M.M. Chandrasekar 2. P. Leelavathy 3. Ishari K. Ganesan ..Respondents/Defendants Appeal from the order dated 11-12-2007 in O.A.No.1150 of 2007 in C.S.No.893 of 2007 on the file of this Court. For Appellant : Mr. B. Ravi For Respondents : Mr. R. Subramaniam for R1 For R2 & R3 : No appearance JUDGMENT (Judgment of the Court was made by Prabha Sridevan,J.) The 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 2. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 4. The importance of the proof of adoption is spelt out in 2005 (5) CTC 207(Pentakota Satyanarayana Vs. Pentakota Seetharatnam) 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. 5. In AIR 1968 Rajasthan 51(Mst. Gulkandi Vs. Prahlad) 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. 6. In AIR 1964 SC 136(Raghavamma Vs. Chenchamma), 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 7. 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: "WHEREAS 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-Secunderabad-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. 8. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 9. 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. Ilt 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. 10. Further, on 27-12-1999, the second respondent had written a letter to the Secretary and Correspondent 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. 11. 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 https://hcservices.ecourts.gov.in/hcservices/ 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." 12. 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) 13. 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 https://hcservices.ecourts.gov.in/hcservices/ 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." 14. 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. 15. 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. 16. 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, https://hcservices.ecourts.gov.in/hcservices/ "1. Under Section 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. 2. The adoption deed was not signed by the natural father; 3. 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. 4. 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." 17. 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. 18. 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 https://hcservices.ecourts.gov.in/hcservices/ 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