THATHAKUTTY Vs. KITTAMUTHU

JUDGEMENT

(1.) KUNJAPPU and That were man and wife governed by the hindu Mitakshara Law of inheritance. As they had no issue, KUNJAPPU adopted the first defendant Kittamuthu to be his son when he was just three years old To fulfil his desire to have a daughter, be later on adopted the plaintiff thathakutty, whom her father pw. 2 Chinnappu was pleased to give him in adoption, when she was thirteen. KUNJAPPU and Thatha are no more. The plaintiff filed O S. No. 102 of 1975 on the file of the Subordinate Judge of Palghat for partition of the plaint schedule properties into two equal shares, and to have one such share allotted to her. The trial court having, by its judgment dated 11-11-1976. dismissed the suit, the plaintiff has preferred this appeal,

(2.) THE plaint schedule properties belonged to Kunjappu. That the 1st defendant is the adopted son of Kunjappu is beyond dispute. If the plaintiff is an adopted daughter of Kunjappu, as contended by her, undoubtedly she would be entitled to one-halt of the plaint schedule properties as one of the two legal heirs of deceased Kunjappu. THE first defendant, however, contended both the factum and validity of the adoption set up by the plaintiff. Defendants 2 to 4 (respondents 2 to 4), who claimed equities in the event of partition, also supported the 1st defendant.

(3.) IT was then contended by Sri P. N. K. Achan, the counsel for the appellant-plaintiff, that the Ist defendant had no right to question the validity of the adoption in respect of the plaintiff which took place in the year 1957 in a suit which was filed in the year 1975. We do not think this contention purported to be based on Art. 57 of the Limitation Act, 1963, is correct. Art. 57 provides: Table:#1 The contention of the counsel is that at least from the date of Ext. A-3, viz , 21-3-1970, if not earlier, the 1st defendant should be presumed to have been aware of the adoption of the plaintiff as a daughter by kunjappu and, therefore, he was precluded from questioning the validity of the adoption unless he bad brought a suit within three years from the date of Ext. A 3 for a declaration that the adoption was not valid. For one thing, this is not a case brought by the 1st defendant for a declaration that the adoption in respect of the plaintiff was invalid or that it never took place. IT is for the plaintiff to allege and prove the factum and validity of the adoption; and if she fails to do that she has only to be nonsuited. That the purported adoption was ab initio invalid, being opposed to the statute, could always be put forward by the 1st defendant as a defence in an action based on the purported adoption. There could be no doubt, on the facts proved, that the purported adoption in respect of the plaintiff was null and void, it being opposed to the provisions of the Adoption Act; and therefore that adoption does not either confer on her any right with respect to the family to which she was purported to have been adopted or deprive her of any right which she was having in her natural family. Therefore, the plaintiff is not entitled to succeed on the plea based on Art. 57 of the Limitation Act also.