RABI Vs. JASU LEELA

JUDGEMENT

(1.) THE defendant in O.S. No. 5803 of 1983 on the file of the City Civil Court, Madras is the appellant. THE first respondent herein filed the original suit alleging that she is the sister of one Mrs. Bellarmin Moses alias Thangam who was the wife of the deceased M.K. Moses who died on 21.8.1979. THE plaintiffs sister, Mrs. Bellarmin Moses, i.e., the widow of M.K. Moses also died on 18.1.1982. THE deceased M.K. Moses was in possession of the plaint schedule property with the building therein. THE appellant alleged that on the death of M.K. Moses, the property devolved on his widow Mrs., Bellarmin Moses and after her death, the plaintiff being the only legal heir, the property devolved on her. THE plaintiff further alleged that the appellant/defendant was one of the tenants in the said property and was occupying a portion of the building. THE plaintiff alleged that after the death of Mrs. Bellarmin Moses, the defendant claimed that he was the adopted son of the deceased M.K. Moses and Mrs. Ballarmin Moses and thus he inherited the plaint scheduled property a portion of which was in his occupation. THE plaintiff filed the suit for a declaration to the effect that she is the legal heir of the deceased Mrs. Bellarmin Moses and that she was entitled to get possession of the plaint schedule property. THE appellant/defendant filed a written statement denying the allegations in the plaint. THE appellant specifically contended that he had been living with Mrs. Bellarmin Moses and as her son was doing of the duties of a son and he had never been a tenant in the house. THE appellant contended that as he lived with the deceased as an adopted son, on the death of Mrs. Bellarmin Moses, he inherited the property.

(2.) THE trial Court framed the issues as to whether the plaintiff was the legal heir of the deceased Mrs. Bellarmin Moses, whether the defendant is the adopted son of the deceased Mrs. Bellarmin Moses and whether the defendant was a tenant of the property. THE trial Court held that the plaintiff was not the legal heir of the deceased Mrs. Bellarmin Moses and that the defendant being the adopted son of the deceased, he inherited the property and the plaintiffs suit was dismissed. Aggrieved by the same,. the plaintiff filed A.S. No. 419 of 1987 and the learned single Judge held that the plaintiff being the sister of the deceased Mrs. Bellarmin Moses, she is the only legal heir of the deceased and even if the defendant is an adopted son, he will not inherit the property of the deceased Mrs. Ballarmin Moses. This finding of the learned single Judge is challenged before us.

(3.) UNDER Section 32 of the Indian Succession Act, the property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules thereinafter contained in the chapter. As per Section 47 where the intestate has left neither lineal descendant nor father nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him. Here the parties are Christians. UNDER Hindu Law, an adopted son is entitled to inherit the ancestrial property. Such adoptions are governed by either customary law or by the provision contained in the Hindu Adoptions and Maintenance Act, 1956. UNDER Hindu Succession Act, an adopted son is treated as natural son for the purpose of succession of ancestral property whereas under Indian Succession Act, an adopted son is not treated on par with natural son and he will not inherit the property of the parents by interestate succession. It is not seriously contended that the plaintiff is not the sister of the deceased Mrs. Bellarmin Moses. Though at the time of the argument, the counsel for the defendant contended that there is no proof to show that the plaintiff is the sister of the deceased Mrs. Bellarmin Moses, it was not specifically denied by the appellant in his written statement. It may be noted that the plaintiff gave evidence to the effect that she is the sister of Mrs. Bellarmin Moses and produced a certificate issued by the Village Administrative Officer (marked as Ex.A.7) to the effect that she is the daughter of one Rajendra Nadar and that the said Rajendra Nadar has only two daughters, viz., the plaintiff and the deceased Mrs. Bellarmin and the appellant had only made a vague suggestion to the witness that she was not the sister of Mrs. Bellarmin Moses, but no serious contention was raised nor any evidence was let in.