Family Law – Christian Law – Adoption – Share of adopted child in the property – One ‘JDA’, died intestate leaving behind his wife (defendant no.1), two sons and two daughters, namely, the appellant-defendant no.2, ‘TKJ’ and ‘V’ (defendant no.3) & late ‘M’, the adopted children – After ‘TKJ’ died, her husband and two children (plaintiffs) instituted suit for partition of the suit property belonging to ‘JDA’, on the ground that ‘TKJ’ had 1/4th share therein – ‘M’ died, his widow and daughter were brought on record as defendant nos.4 & 5 – Suit dismissed – Appeals filed by the plaintiffs as well defendant nos.3-5 – Allowed by the High Court – Held: High Court erred in holding that the plaintiffs would have 1/4th share in the suit property being the heirs of deceased ‘TKJ’ – It was the specific case of defendant nos.1 & 2 that at the time of marriage of ‘TKJ’ with plaintiff no.1, she converted to Hinduism despite opposition and she was paid Rs.50,000/- and some gold ornaments for relinquishing her right, if any, in the suit property belonging to ‘JDA’– During her life time, ‘TKJ’ never claimed any share/partition in the suit property – Considering the said conduct on the part of ‘TKJ’ during her life time, the trial Court rightly accepted the defence of defendant nos.1 & 2 that ‘TKJ’ relinquished her share in the suit property – Further, the defendant no.2 even incurred the expenditure from his income for the improvement of the property – Part of the judgment passed by the High Court holding that plaintiffs shall be entitled to 1/4th share in the suit property being heirs of ‘TKJ’, set aside – However, submission of the defendant no.2 that appeal at the instance of defendant nos.35 was not maintainable, cannot be accepted –In the written statement, defendant nos.1 & 2 admitted that defendant no.3 and late ‘M’ were the children of ‘JDA’ – 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 – By virtue of adoption, child gets transplanted into a new family and is deemed to be a member thereof as if he or she were born son or daughter of the adoptive parents having same rights which natural daughter or son had– Defendant no.1-wife of ‘JDA’ had died, therefore the suit property is to be divided amongst the defendant no.2-5 – Defendant nos.2, 3 and defendant nos.4 & 5 (jointly) shall have 1/3rd share each in the suit property – Decree passed by the High Court modified to that extent – Code of Civil Procedure, 1908 – s.96 – Suit.
Practice & Procedure – Cross objection – Meaning of – Held: A memo of cross objection is nothing but one form of appeal and it takes the place of cross appeal – Code of Civil Procedure, 1908 – s.96.
Code of Civil Procedure, 1908 – s.96 – Appeal under – Aggrieved party to file such appeal, who can be – Suit filed for partition of the suit property amongst the plaintiffs and the defendants including defendant nos.2-5 – Dismissed – Appeals filed by the plaintiffs and defendant nos.3-5 –Plea of the appellantdefendant no.2 that as the defendant nos.3-5 did not file any counter claim in the suit claiming their specific share and the suit was dismissed, the appeal at their instance was not maintainable – Held: In a suit for partition, every co-sharer would have a right to claim the share/partition– If a person is prejudiced or adversely affected by the judgment and decree, he can file an appeal – In the present case, in the written statement filed by the defendant nos.3-5, they specifically stated that they had 1/4th share each in the suit property –Therefore, when the suit for partition was dismissed, defendant nos.3-5 can be said to be aggrieved by the decree passed by the trial court dismissing the suit– Suit.
Allowing the appeal, the Court
HELD: 1.1 The High Court has completely erred in holding that the plaintiffs would have 1/4th share in the suit property being the heirs of deceased ‘TKJ’ – the daughter of ‘JDA’. It was the specific case on behalf of defendant nos.1 & 2 that at the time of marriage of ‘TKJ’ with original plaintiff no.1, she converted to Hinduism and her name was changed to ASM. It was the specific case on behalf of defendant nos.1 & 2 that at the relevant time when the said ‘TKJ’ had married to original plaintiff no.1 and converted to Hinduism, there was opposition. However, despite the same, the said ‘TKJ’ 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 ‘JDA’. The trial Court believed the case on behalf of defendant nos. 1 & 2, both on appreciation of evidence as well as on conduct of ‘TKJ’. ‘JDA’ died intestate in the year 1964. ‘TKJ’, the eldest daughter married to original plaintiff no.1 in 1979. She died in 1986. During her life time, she never claimed any share/partition in the suit property belonging to ‘JDA’. Only after the death of ‘TKJ’, the plaintiffs claiming to be her heirs instituted the suit for partition contending, inter alia, that ‘TKJ’ had 1/3rd share in the suit property. Therefore, considering the aforesaid conduct on the part of ‘TKJ’ during her life time, the trial Court rightly accepted the defence on behalf of original defendant nos.1 & 2 that the said ‘TKJ’ was paid Rs.50,000/- and some gold ornaments at the time of her marriage with original plaintiff no.1 and she relinquished her share in the suit property. Original defendant no.2 even incurred the expenditure from his own income for the purpose of improvement of the property. Original 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 ‘TKJ’. Therefore, the 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 Court holding that original plaintiffs shall be entitled to 1/4th share in the suit property being heirs of ‘TKJ’ deserves to be quashed and set aside. 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 co-sharer would have a right to claim the share/partition. Even considering the written statement filed on behalf of original defendant nos. 3 and 4 & 5, they had specifically stated that they are having 1/4th 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 trial court dismissing the suit for partition and therefore considering Section 96 of the CPC, the appeal at their instance would be maintainable. 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 trial Court dismissing the suit for partition, it would be open or permissible for original defendant nos. 3 to 5 to file cross objection. A memo of cross objection is nothing but one form 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 trial Court dismissing the suit for partition in which they also claimed share, 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 trial Court dismissing the suit. 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. 3-5 was not maintainable, cannot be accepted. [Paras 9, 10, 10.1] [24-D-H; 25-A-H; 26-B-E]
1.2 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 ‘M’ are also the heirs of deceased ‘JDA’ and therefore the suit is bad for non-joinder 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 ‘M’ were the children of ‘JDA’. 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 ‘M’ were the adopted children. Therefore, the present case is also proceeded on the assumption that defendant no.3 and late ‘M’ were the adopted children of ‘JDA’. 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 ‘M’ were the adopted children of ‘JDA’, both of them were entitled to the share in the property of ‘JDA’adoptive father. 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 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 ‘M’) are rightly held to be the co-sharers in the suit property belonging to ‘JDA’ and they are entitled to the respective shares in the suit property. Original defendant no.1-the wife of ‘JDA’ 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 1/3rd share each in the suit property. Therefore, the impugned judgment and decree passed by the High Court holding that the original plaintiffs shall have 1/4th share, original defendant nos. 2 & 3 shall have 1/4th share each and original defendant nos. 4 & 5(jointly) would have 1/4th share is required to be modified to the aforesaid extent holding that original defendant nos. 2 & 3 would have 1/3rd share each and original defendant nos. 4 & 5 jointly would have 1/3rd share in the suit property. [Paras 11.1, 11.2] [26-G-H; 27-A-H]
1.3 The impugned judgment and order passed by the High Court in appeal preferred by the original plaintiffs is hereby quashed and set aside and the judgment and decree passed by the trial Court dismissing the suit is hereby restored. Civil Appeal 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 1/3rd share each in the suit property originally belonged to ‘JDA’. [Para 12] [28-A-C]
Benoy Kumar Mondal v. Panchanon Majumdar
AIR 1956 Calcutta 177 ; Philips Alfred Malvin v. Y.J. Gonsalvis AIR 1999 Kerala 187; Baldev Singh v.
Surinder Mohan Sharma (2003) 1 SCC 34 : [2002] 4 Suppl. SCR 43 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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