REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7207­7208/2008

Pharez John Abraham (Dead) By Lrs. …Appellants

Versus

Arul Jothi Sivasubramaniam K. & others …Respondents

J U D G M E N T

M.R. SHAH, J.

Feeling aggrieved and dissatisfied with the impugned

common judgment and order dated 22.11.2006 passed by the High

Court of Karnataka at Bangalore in R.F.A. No. 546/2004 and R.F.A.

No.  940/2004, the  appellant  herein – original defendant  no.2  has

preferred the present appeals.

2. The facts leading to the present appeals in nutshell are as

under:

That one John D. Abraham is the propositus.  That original

defendant no.1  is  the wife of  the said John D. Abraham.   Original

defendant no.2, defendant no.3, one Triza Kalyani John (wife of

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original plaintiff  no.1) and one late Maccabeaus are the children of

propositus.   That the suit schedule house is the estate of the

propositus.   That original defendant no.1 – wife of the propositus –

John D. Abraham died intestate during the pendency of the suit.  That

after the demise of the propositus, his daughter Triza Kalyani John

married with original plaintiff no.1, who was a Hindu.  At the relevant

time, Triza  Kalyani John – daughter of the propositus got herself

converted  to  Hinduism and changed her  name as  A.S.  Meenakshi.

Original plaintiff nos. 2 and 3 are the children born out of the said

wedlock.   Triza Kalyani John died in the year 1986.   That thereafter

and after the death of the said Triza Kalyani John, the original

plaintiffs –  husband  of Triza  Kalyani John  and their two children

instituted original suit no. 591/1987 in the Court of learned City Civil

Judge,  Bangalore for  partition  and  separate  possession  of the  suit

schedule property.  Original  plaintiffs filed the suit  seeking share of

Triza Kalyani John (A.S. Meenakshi).  It was the case on behalf of the

plaintiffs that the said A.S.Meenakshi @ Triza Kalyani John  was

having 1/4th  share in the suit property – property belonged to

propositus – John D. Abraham.   The plaintiffs sought the following

reliefs in the suit:

i) for partition and separate possession of their one third

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right and share, in absolute estate and title,  in and in

relation  to the properties and premises described in the

schedule ‘A’  hereunder, by  metes  and  bounds,  having

due regard to the quality of soil, utility and access to the

buildings and premises thereon and convenience of

enjoyment thereof,  directing the  defendants to  put the

plaintiffs in such exclusive possession and enjoyment

thereof; ii) appointing  one  or  more  Commissioners to inspect the

suit properties and premises and submits proposals,

together with plans and sketches of the buildings thereon

and of the premises thereat, allotting one­third share and

extent thereat to the plaintiffs; iii) passing final decree in pursuance of the preliminary

decree herein; iv) directing the defendants to pay the plaintiffs their cost of

the suit and v) glaring such other reliefs and making such further orders

as to it may deem fit and proper in the circumstances of

this case.”

2.1 It  is required to be noted that  initially the suit was filed

only against the two  defendants –  wife of late John  D.  Abraham

(defendant no.1) and the appellant herein – Pharez John Abraham,

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son of late John D. Abraham (defendant no.2).

2.2 The suit was resisted by defendant nos. 1 & 2 by filing the

joint written statement.  It was contended that John D. Abraham had

another  son and daughter,  namely,  Vasanthi  and Maccabeaus.   It

was contended that the said Vasanthi and Maccabeaus were born to

John D. Abraham on account of the intimate relationship of John D.

Abraham  with St. Pushpa.   It  was submitted that they are also

entitled to share in the suit property of John D. Abraham.  Therefore,

it was requested to dismiss the suit on the ground of non­joinder of

proper parties.  It was also contended on behalf of defendant nos. 1 &

2 that Meenakshi @ Triza Kalyani John being a Christian opted to

marry plaintiff no.1, a Hindu, much against the wishes of the

members of the family.   Meenakshi @ Triza Kalyani John expressed

that she will marry plaintiff no.1 by converting herself to Hinduism

and also that a share in the assets of John D. Abraham may be given.

According to the defendants, in pursuance to the said demand put

forth by Meenakshi @ Triza Kalyani John, a sum of Rs.50,000/­ and

certain gold ornaments were given to her as defendant nos. 1 & 2 felt

that it was not proper to partition the living house or to induct a non­

Christian to stay in the house.   According to the defendants,

Meenakshi @ Triza Kalyani John had taken her share in the assets of

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John D. Abraham and therefore the plaintiffs are not entitled to any

share and the suit of the plaintiffs is liable to be dismissed.

3. The learned trial Court framed the following issues:

i) whether  plaintiffs  prove  that they and the defendants

are members of Hindu Joint Family?

ii) Do they further prove that late A.S. Meenakshi  is the

wife of 1st plaintiff and mother of 2nd and 3rd plaintiffs, dies(sic)

as member of joint family and was in joint possession of the

suit properties?

iii) whether defendants prove that there was a family

arrangement or settlement and that late A.S. Meenakshi has

given up her claim for Rs.50,000/­?

iv) whether the suit is bad for non­joinder of necessary

parties?

v) What  is the share of the plaintiffs, if  any,  in the suit

properties? vi) Whether the settlement  pleaded  by the  defendants is

binding upon the parties? vii) Whether the suit is properly valued and requisite court

fee has been paid/ viii) To what relief, if any, the plaintiffs are entitled?

3.1 That subsequently Vasanthi and  Maccabeaus  were also

impleaded as parties to the suit and as Maccabeaus had died, his

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widow and his daughter were brought on record.  They were joined as

defendant nos. 3 to 5.

3.2 Both the parties led evidence, oral as well as documentary.

That thereafter on appreciation of evidence and considering the

evidence on record, the learned trial Court answered issue no.3 in the

affirmative and held that there was a family arrangement or

settlement and that late A.S. Meenakshi @ Triza Kalyani John has

given up her claim for Rs.50,000/­.   It was held by the learned trial

Court that in that view of the matter, the plaintiffs are not entitled to

the partition and the share of late A.S. Meenakshi @ Triza Kalyani

John.  Consequently, the learned trial Court dismissed the suit.  The

learned trial Court also observed and held that the suit was barred by

limitation as John D. Abraham died intestate in the year 1964 and in

Christanity the property would be divided immediately after the death

of  the  intestate person and that  during the life time Triza Kalyani

John  @  A.S.  Meenakshi  has  not  put forth  any claim  against the

members of the erstwhile family after 1964 till her demise in the year

1986 and if she wanted any share in the assets of John D. Abraham,

then she should have done so within three years.   The learned trial

Court also observed that for separate possession in the suit property,

the period would have been 12 years from the date of the death of

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John D. Abraham and accordingly the limitation got expired by 1976

itself.

4. Feeling aggrieved and dissatisfied with the judgment and

decree  passed  by the learned trial  Court  dismissing the suit, the

original plaintiffs preferred R.F.A. No. 546/2004 before the High

Court.  Original  defendant  nos.  3  to  5 also filed a separate  appeal

challenging the judgment and decree passed by the learned trial

Court dismissing the suit by filing R.F.A. No. 940/2004.   

4.1 That by the impugned common judgment and order,  the

High Court has allowed both the appeals and has held that the trial

Court erred in dismissing the suit and in rejecting the claim of

defendant nos. 3 to 5.   The High Court has also observed and held

that as the first defendant died intestate during the pendency of the

suit, the two daughters and two sons of John D. Abraham are entitled

to 1/4th share each.  The High Court has held that consequently the

plaintiffs together  are  entitled to  1/4th  share, the  3rd  defendant is

entitled to 1/4th  share,  defendant nos.  4 & 5 are entitled  to 1/4th

share and defendant no.2 is entitled to 1/4th share.  The High Court

has directed to draw the preliminary decree accordingly.

4.2 While allowing the appeals, the High Court has observed

and  held that though the plaintiffs are  Hindus and the property

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belongs to a Christian, still as per the Indian Succession Act plaintiffs

can have partition of a Christian property if a Christian dies intestate.

In support of the above, the High Court has relied upon and

considered  the decision of the  Calcutta  High Court in the  case of

Benoy Kumar Mondal v. Panchanon Majumdar, reported in AIR 1956

Calcutta 177.  While allowing the appeals, the High Court also did not

believe the case on behalf of defendant nos. 1 & 2 that A.S.Meenakshi

@ Triza Kalyani John relinquished her share by taking Rs.50,000/­.   

4.3 Now so far as the rights of defendant nos. 3 to 5 are

concerned, the High Court has observed and held, considering the

decision of the Kerala High Court in the case of Philips Alfred Malvin

v. Y.J. Gonsalvis, reported in AIR 1999 Kerala 187, that even if

defendant  no.3  and late  Maccabeaus can  be said to  be   adopted

children, adoption by a Christian couple is permissible and unlike the

Hindu Law there is no law prohibiting the Christian couple to adopt

male or a female child although they may have natural born male or

female child, as the case may be.   Relying upon the aforesaid

decision, the High Court has held that defendant no.3 and defendant

nos. 4 & 5 (being the heirs of late Maccabeaus) are entitled to a share,

notwithstanding that the third defendant and  late Maccabeaus are

adopted children.

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5. Feeling aggrieved and dissatisfied with the impugned

common judgment and order passed by the High Court, the original

defendant no.2 – Pharez John Abraham (now dead and represented

through legal heirs) has preferred the present appeals.

6. Shri N. Vasudevan, learned Advocate has appeared on

behalf of the appellant(s) and Ms. Shalini Kaul, learned Advocate has

appeared for the respondents.

6.1 It is vehemently submitted by Shri N. Vasudevan, learned

Advocate appearing on behalf of the appellants that in the facts and

circumstances of the case, the High Court has materially erred in not

accepting the case of defendant nos. 1 & 2 that there was a family

settlement by which Triza Kalyani John @ A.S. Meenakshi had given

up her share.

6.2 It is vehemently submitted by Shri N. Vasudevan, learned

Advocate appearing on behalf of the appellants that at the relevant

time Triza Kalyani John wanted to marry plaintiff no.1, who was a

Hindu and there was opposition by her family members and therefore

she converted herself to Hinduism  and at that time she relinquished

her share in the property/suit property of John D. Abraham by taking

Rs.50,000/­.  It is submitted that the High Court has materially erred

in not accepting the same on the ground that there  is no Deed of

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Relinquishment executed by Triza Kalyani  John @ A.S.  Meenakshi

and as such the Deed of Relinquishment is required to be registered.

It is vehemently submitted by Shri N. Vasudevan, learned Advocate

appearing on behalf of the appellants that family settlement need not

be registered and that it can be even oral.

6.3 It is vehemently submitted by Shri N. Vasudevan, learned

Advocate appearing on behalf of the appellants that the settlement in

favour of Triza Kalyani John @ A.S. Meenakshi has been proved on

the basis of evidence on record and preponderance of probabilities.  It

is vehemently submitted that  John D.  Abraham died intestate  on

19.10.1964; that Triza Kalyani John in the year 1979 converted to

Hinduism and changed  her  name  to  A.S.  Meenakshi  and  she  got

married to plaintiff no.1 in the year 1979; that the said Triza Kalyani

John @ A.S. Meenakshi died  in the month of July 1986; that at no

point of time the said Triza Kalyani John @ A.S. Meenakshi claimed

her share in the property of John D. Abraham.  It is submitted that

only thereafter and after the  death  of Triza  Kalyani John  @  A.S.

Meenakshi, the original  plaintiff  no.1  filed a suit for  partition and

separate possession in the year 1987.  It is submitted that therefore

the aforesaid conduct of Triza Kalyani John @ A.S. Meenakshi of not

claiming any share in the suit property during her life time though

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John D.  Abraham died  in  the  year  1964,  would clearly  show and

suggest that Triza Kalyani John @ A.S. Meenakshi had relinquished

her share by taking Rs.50,000/­ at the time when she converted to

Hinduism to marry plaintiff no.1.   It is further submitted that even

defendant nos. 1 & 2 also invested a huge amount in the repair of the

suit house.

6.4 It is further submitted by Shri N. Vasudevan, learned

Advocate appearing on behalf of the appellants that even considering

the aforesaid facts and circumstances, the suit was barred by

limitation.  It is submitted that the High Court has materially erred in

holding that the suit was within the period of limitation on the ground

that the suit is filed within one year after  demise of  Triza Kalyani

John @ A.S. Meenakshi.  It is submitted that the High Court has not

properly appreciated and considered that in Christianity, the property

would be divided immediately after the death of intestate person.  It is

submitted that as John D. Abraham died intestate in the year 1964,

and that she converted to Hinduism in the year 1979 and the suit

was filed in the year 1987 and therefore considering the case from

any  angle, i.e., to claim  the share  within  a  period  of three  years

and/or even the relief for  separate possession in the property, the

period of limitation would be 12 years  from the death of  John D.

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Abraham, the suit was clearly barred by limitation.   It is submitted

therefore the  High  Court  has  materially erred in  holding the suit

within the period of limitation.

6.5 It is further submitted by Shri N. Vasudevan, learned

Advocate appearing on behalf of the appellants that even otherwise

the High Court has materially erred in holding that defendant nos. 3

to 5 are also having 1/4th share despite the fact that the 3rd defendant

and late Maccabeaus were the illegitimate children who were baptised

on 22.7.1951 and 5.6.1959 respectively.   It  is submitted that even

otherwise  the  High Court  has  materially  erred  in holding  that the

adopted Christian children are entitled to his/her share in the

property as it happens in a Hindu family.

6.6 It is vehemently submitted by Shri N. Vasudevan, learned

Advocate appearing on behalf of the appellants that even otherwise

defendant nos. 3 to 5 would not have claimed any share in absence of

any counter claim.  It is submitted that therefore as such the appeal

filed by original  defendant nos.  3  to 5 being R.F.A.  No.  940/2004

would not at all be maintainable.

6.7 Making the above submissions, it is  prayed to allow the

present appeals.

7. Both these appeals are vehemently opposed by Ms. Shalini

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Kaul, learned Advocate appearing on behalf of the respondents herein

– the original plaintiffs and the supporting defendants.

7.1 It is vehemently submitted by the learned Advocate

appearing on behalf of the respondents that in the absence of any

Deed of Relinquishment executed by Triza Kalyani John  @ A.S.

Meenakshi relinquishing her share and in the absence of any other

evidence that A.S.Meenakshi @ Triza Kalyani John had given

up/relinquished her share by taking Rs.50,000/­ and other gold

ornaments, the High Court has rightly disbelieved the same and has

rightly held that defendant nos. 1 & 2 have failed to prove that there

was any relinquishment of her share by Triza Kalyani John @ A.S.

Meenakshi.

7.2 It is vehemently submitted by the learned Advocate

appearing on  behalf of the respondents that the  High  Court has

rightly held, considering the provisions of the Indian Succession Act

that even a non­Christian and in the present case Hindus can claim

partition in the suit property of a Christian died intestate.

7.3 It is further submitted by the learned Advocate appearing

on behalf of the respondents that so far as the finding recorded by the

learned  trial  Court  on  limitation  is  concerned,  at the  outset, it is

required to be noted that there was no specific issue framed by the

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learned trial Court with regard to limitation.  It is submitted therefore

that  in the absence of any specific  issue framed on limitation,  the

learned trial Court ought not to have held that the suit was barred by

limitation.

7.4 Now so far as the impugned judgment and order passed by

the  High Court recognising the  share  of  defendant  nos.  3 to  5 is

concerned, it is vehemently submitted by the learned Advocate

appearing on behalf of the respondents that, in fact, defendant no.3

and the deceased Maccabeaus were the children of deceased John D.

Abraham out of his marriage with St. Pushpa in the year 1951.  It is

submitted that assuming that they  were the adopted children of

deceased John D. Abraham, in that case also, even being the adopted

children they are having the share in the property of deceased John

D. Abraham, who died intestate.

7.5 Now so far as the submission on behalf of the appellants –

original defendant nos. 1 & 2 that in the absence of any counter claim

by defendant nos. 3 to 5, the appeal filed by original defendant nos. 3

to  5  being  R.F.A.  No.  940/2004  was  not  maintainable  at all and

therefore the High Court has materially erred in passing the decree in

their favour holding that original defendant no.3 and defendant nos. 4

& 5 (being the heirs of deceased Maccabeaus) are having 1/4th  share

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in the suit property is concerned, it is submitted that in a suit for

partition, every heir of the deceased who died intestate would have a

right and they can claim the share even without filing any counter

claim.  It is submitted that even otherwise such a plea/objection was

never taken before the High Court and therefore now the appellants

are  not  permitted to take such  a  plea/objection  after  having lost

before the High Court.

7.6 Making the above submissions, it is prayed to dismiss the

present appeals.

8. We  have  heard the learned  Advocates appearing for the

respective parties at length.   

8.1 At the outset, it is required to  be  noted  and as stated

hereinabove, the suit property initially belonged to one John D.

Abraham.  The said John D. Abraham died intestate in the year 1964

leaving behind him his wife – Esther Abraham – original defendant

no.1 and four children – two sons and two daughters, namely, Pharez

John Abraham (original defendant no.2);   Triza Kalyani John @ A.S.

Meenakshi (the eldest daughter of John D. Abraham and the wife of

original plaintiff  no.1); Vasanthi (original defendant no.3); and Late

Maccabeaus (father of defendant nos. 4 & 5).  That in the year 1979,

Triza Kalyani John converted to Hinduism and married with original

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plaintiff no.1.  That she died in the year 1986 leaving behind her the

original plaintiffs.   That after the death of Triza  Kalyani John  @

Meenakshi, the original plaintiffs – the husband and children of Triza

Kalyani John @ Meenakshi  instituted the present suit  for claiming

partition and a separate possession and claimed that Triza Kalyani

John  @  Meenakshi had 1/3rd  share in the property of John  D.

Abraham, who died intestate.  It is required to be noted that initially

the plaintiffs, claiming to be the heirs of Triza Kalyani John  @

Meenakshi joined original defendant nos. 1 & 2 ­ Esther Abraham,

wife of John D. Abraham and Pharez John Abraham, son of John D.

Abraham and stated that all the three  namely original defendant

no.1, original defendant no.2 and Triza Kalyani John @ Meenakshi

had 1/3rd  share each in the suit property.   However, subsequently,

original defendant nos. 3 to 5 came to be joined as parties.   It was

found that defendant no.3 – Vasanthi and late Maccabeaus were the

adopted children of John  D. Abraham.   The learned trial Court

dismissed the suit on merits as well as on the ground of limitation.  In

the appeals preferred by the original plaintiffs and original defendant

nos. 3 to 5, the High Court has decreed the suit and has held that

original plaintiffs, original defendant  no.2, original  defendant  no.3

and original defendant nos. 4 & 5 (jointly) have 1/4th  share each in

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the suit property.  The impugned judgment and order passed by the

High Court is the subject matter of present appeals at the instance of

original defendant no.2 (now deceased and represented through the

legal heirs).

9. Having heard the learned counsel for the respective parties

and considering the evidence/material on record, we are of the view

that 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 Triza Kalyani John @ Meenakshi – the daughter of John D.

Abraham.  It was the specific case on behalf of defendant nos. 1 & 2

that at the time of marriage of Triza Kalyani John @ Meenakshi with

original plaintiff no.1, she converted to Hinduism and her name was

changed to A.S.  Meenakshi.   It  was the specific  case on behalf  of

defendant nos. 1 & 2 that at the relevant time when the said Triza

Kalyani John @ Meenakshi had married to original plaintiff no.1 and

converted to Hinduism, there was opposition.   However, despite the

same, the said Triza Kalyani John @ Meenakshi 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 John D. Abraham.   The trial

Court believed the case on behalf of defendant nos. 1 & 2, both on

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appreciation of evidence as well as on conduct of Triza Kalyani John

@ Meenakshi.  The trial Court also dismissed the suit on the ground

of limitation.   It is to be  noted that the John  D. Abraham  died

intestate in the year 1964. Triza Kalyani John, the eldest daughter of

John D. Abraham married to original plaintiff no.1 in the year 1979.

She died in the year 1986.   During her life time, she never claimed

any share/partition in the suit property belonging to John D.

Abraham.   Only after the death of Triza Kalyani John @ Meenakshi,

the plaintiffs claiming to be the heirs of Triza Kalyani John @

Meenakshi instituted the suit for partition contending, inter alia, that

Triza Kalyani John @ Meenakshi had 1/3rd share in the suit property

belonging to John D. Abraham, who died intestate.   Therefore,

considering the aforesaid conduct on the part of Triza Kalyani John @

Meenakshi during her life time, the learned trial Court rightly

accepted the defence on behalf of original defendant nos. 1 & 2 that

the said Triza Kalyani John @ Meenakshi was paid Rs.50,000/­ and

some gold ornaments at the time of her  marriage with original

plaintiff no.1 and the said Triza Kalyani John @ Meenakshi

relinquished her share in the suit property.  It is required to be noted

that original defendant no.2 even incurred the expenditure from his

own income for the purpose of improvement of the property.  Original

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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

Triza Kalyani John @ Meenakshi.   Therefore, the learned 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 Triza  Kalyani John  @  Meenakshi

deserves to be quashed and set aside.

10. Now so far as the impugned judgment and order passed by

the High Court holding that original defendant nos. 3 to 5 are also

having 1/4th share – defendant no.3 and defendant nos. 4 & 5 in the

suit property is concerned, it is the case on behalf of defendant no.2 –

the appellant herein that as the original defendant nos. 3 to 5 did not

file any counter claim in the suit claiming their specific share and the

suit was dismissed, the appeal at the instance of original defendant

nos. 3 to 5 was not maintainable is concerned, it is required to be

noted that 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 co­sharer would have a right to claim the

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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 learned trial court dismissing the suit for

partition and therefore considering Section 96 of the CPC, the appeal

at their instance would be maintainable.

10.1 At this stage, a decision of this Court in the case of Baldev

Singh v. Surinder  Mohan  Sharma, reported in (2003) 1  SCC  34  is

required to be referred to.  A three Judge Bench of this Court in the

aforesaid decision has opined that an appeal under Section 96 of the

Code would be maintainable only at the instance of a person

aggrieved by and dissatisfied with the judgment and decree.  Thus, 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 learned trial Court dismissing

the  suit for  partition, it  would be  open or  permissible for  original

defendant  nos. 3 to  5 to file cross objection.  As  per the settled

proposition of law, a memo of cross objection is nothing but one form

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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 learned trial Court dismissing the suit for partition in which

they also claimed share in the suit property, of course 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  learned trial

Court dismissing the suit for partition claiming to be co­sharers.

Even otherwise, it is required to be noted that 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 to 5

being RFA No. 940/2004 was not maintainable, cannot be accepted.   

11. Now  the  next  question  which is  posed for consideration

before this Court is, whether defendant nos. 3 to 5 would have any

share in the suit property belonging to John D. Abraham?

11.1 It is required to be noted that 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

Maccabeaus are also the heirs  of  deceased John D.  Abraham and

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therefore the suit is bad for non­joinder 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  Maccabeaus  were the

children of  John D. Abraham.   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

Maccabeaus  were the adopted children.   Therefore, we  may also

proceed further with the case on the assumption that defendant no.3

and late Maccabeaus were the adopted children of John D. Abraham.

It is required to  be  noted that 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  Maccabeaus  were the

adopted children of John D. Abraham, both of them were entitled to

the share in the property of John D. Abraham – adoptive father.

11.2 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

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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 Maccabeaus) are rightly held to be

the co­sharers in the suit property belonging to John D. Abraham and

they are entitled to the respective shares in the suit property

belonging to John D. Abraham.  Original defendant no.1 – the wife of

John D. Abraham 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

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share each and original defendant nos. 4 & 5 jointly would have 1/3rd

share in the suit property.

12. In view of the above and for the reasons stated above, Civil

Appeal  arising from R.F.A.  No.  546/2004 is  hereby  allowed.  The

impugned judgment and order passed by the High Court in R.F.A. No.

546/2004 preferred by the original plaintiffs is hereby quashed and

set aside and the judgment and decree passed by the learned trial

Court dismissing the suit is hereby restored.

Civil Appeal arising from  R.F.A. No. 940/2004, 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 John D.

Abraham.  However, in the facts and circumstances of the case, there

shall be no order as to costs.

…………………………………..J. [L. NAGESWARA RAO]

NEW DELHI; ……………………………………J. JULY 02, 2019. [M.R. SHAH]

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