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           NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  529   OF 2011 (Arising out of SLP(C) No.21065 of 2004)

lSAROJA ....

.

APPELLANT.

        VERSUS

SANTHILKUMAR & ORS.   .....RESPONDENTS.

J U D G M E N T

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lANIL R. DAVE, J.   

1. Leave granted.

2. Being aggrieved by the Judgment delivered in  

Appeal Suit No. 774 of 1989 dated 25th June, 2004, by  

the High Court of Madras, this appeal has been filed by  

Original  Defendant  No.  3   in  the  suit.   The  suit  

filed by  

present  

respondent  nos.  1  and  2  had  been  dismissed  and,  

therefore,  the  plaintiffs  had  filed  the  aforestated  

appeal, which has been allowed by the High Court and,  

therefore,  original  defendant  no.  3  has  filed  the  

present appeal.  

3. The facts giving rise to the present litigation  

in a nutshell are as under:

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4. Original  Suit  No.  57  of  1985  was  filed  by  

present respondent nos. 1 and 2 for a declaration that  

the  properties  referred  to  in  Schedule  ‘B’  and  ‘C’  

attached to the plaint, belong to plaintiffs 1 and 2  

respectively  and,  therefore,   the  other  defendants,  

namely, the present appellant and other respondents be  

restrained  from  interfering  with  their  peaceful  

possession and enjoyment of the said property.

5. It was a case of the plaintiffs that plaintiff  

no. 2 who was the daughter of late Arumugha Mudaliar  

and plaintiff  no.1 was the son of plaintiff no. 2,  

i.e.,  grandson of  late  Arumugha Mudaliar.  Arumugha  

Mudaliar  had  three  children,  namely,   Mangalam,  

Saraswathi and Jayasubramanian.  Jayasubramanian, the

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only son had expired in 1982 and he was survived by  

Saroja, his widow,  the present appellant and defendant  

no. 3 in the suit.

6. As son of late Arumugha Mudaliar had expired,  

he had adopted Santhilkumar, his grand-son, the son of  

his  daughter  Saraswathi  and  plaintiff  no.  1,  by  

executing an adoption  deed dated 18th August, 1984,  

after  

doing  

necessary rituals required to be performed under Hindu  

Law. Late Arumugha Mudaliar had thereafter executed a  

registered  will  on  October  11,  1984,  whereby  the  

properties  referred  to  hereinabove  along  with  other  

properties had been bequeathed  and properties referred  

to  in  the  schedule  attached  to  the  plaint  had  been  

disposed of in favour of his daughter Saraswathi and

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his grandson  Santhilkumar i.e. the plaintiffs.  Late  

Arumugha Mudaliar  expired on 14th January, 1985.  

7. As  the defendants  i.e.  present appellant and  

respondent nos. 3 & 4 were interfering with or  were  

likely  to  interfere  with  the  possession  of  the  

properties referred to hereinabove,  Original Suit No.  

57  of  1985  was  filed  by  Saraswathi  and  her  son  

Santhilkumar,  who was minor  at the relevant time.  

The said suit was dismissed for the reason that the  

trial  court  did  not  believe  that  Santhilkumar  was  

properly  adopted  by  late  Arumugha  Mudaliar  and  the  

properties  which had been bequeathed in the will  were  

ancestral  properties  and,  therefore,  late  Arumugha  

Mudaliar had no absolute right to dispose of the same.

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8. Being aggrieved by  the dismissal of the suit,  

Santhilkumar and Saraswathi filed Appeal Suit No. 774  

of 1989 in the High Court of Madras which has been  

allowed  and,  therefore,  the  present  appeal  has  been  

filed by  Saroja, widow of  the son of  late Arumugha  

Mudaliar, and defendant no. 3.

9. Learned  counsel  appearing  for  the  appellant  

mainly  

submitted that the properties which had been bequeathed  

in  the  will  were  not  self-acquired  properties  of  

Arumugha Mudaliar and  that other family members had  

also a right in the said  properties, as the properties  

were   joint  family  properties.   He,   therefore,  

submitted that late Arumugha Mudaliar had no right to  

execute the will and that  the will,  by virtue of

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which  the  property  had  been  bequeathed,   was  not  a  

valid will in the eye of law.    Before the Trial Court  

it  was  urged  that  late  Arumugha  Mudaliar  had  also  

executed another will on 13th January, 1985,   which was  

unregistered and that was a valid will as the  said  

will,   being executed latter in point of time, the  

will  dated  11th October,  1984,   stood  automatically  

revoked.  

10.

On  

the  

other  

hand,  

the  

learned  

counsel  

appearing for the original-plaintiffs Santhilkumar and  

Saraswathi submitted that the High Court had rightly  

reappreciated  the  evidence  and  by  reasoned  judgment  

held that the properties in question were not joint  

family  properties  and  late  Arumugha  Mudaliar  had  

validly  adopted  his  grandson-Santhilkumar  and  had

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executed will dated 11th October, 1984,  which had been  

duly proved and, therefore, the appeal deserved to be  

dismissed.

11. We  heard  the  learned  counsel  and  have  gone  

through both the judgments & the relevant record.

12. We do not accept the submission of the learned  

counsel appearing on behalf of the appellant that the  

properties which had been bequeathed by late Arumugha  

Mudaliar under his will dated 11th October, 1984 were  

joint family properties.  The learned counsel submitted  

that the said properties belonged to late Shri Ratna  

Mudliar, father of late Arumugha Mudaliar.  We do not  

accept  the  said  contention  for  the  reason  that  no  

documentary  evidence  of   whatever  type  was  adduced

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before  the   trial  court  to  show  that  late  Arumugha  

Mudaliar had  inherited the properties referred to in  

the will dated 11th October, 1984 and that it originally  

belonged to late Shri Ratna Mudliar, father of late  

Arumugha Mudaliar.  No documentary evidence or revenue  

record showing ownership of late Shri Ratna Mudliar was  

produced before the trial court.  In absence of such an  

evidence,  in our opinion,  the High Court rightly came  

to the conclusion that the properties which stood in  

the name of late Arumugha Mudaliar, belonged to him and  

no other family member had any right therein,  as the  

said  properties  did  not  belong  to  the  family.   We,  

therefore, agree with the conclusion arrived at by the  

High Court that the properties in question were not

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joint family properties.

13.  So  far  as  adoption  of   Santhilkumar  is  

concerned, in our opinion, the said adoption had been  

duly established before the trial court.  Late Arumugha  

Mudaliar had followed the rituals required as per the  

provision of Hindu Law while  adopting Santhilkumar as  

his  son.   There  was  sufficient  evidence  before  the  

trial  

court to  

establish that Santhilkumar had been validly adopted by  

late  Arumugha  Mudaliar.   Kandasamy(PW-2)  had  been  

examined  in  detail,   who  had  placed  on  record  

photographs taken at the time of the ceremony. The said  

witness had given details about the rituals performed  

and the  persons who were present at the time of the  

adoption ceremony and the deed of adoption had also

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been registered.  The aforestated facts leave no doubt  

in  our  mind  that  the  adoption  was  valid.   Even  

photographs and negatives of the photographs which had  

been taken at the time of adoption are forming part of  

the record.  In such a set of circumstances, we do not  

find  any  reason  to  disbelieve  the  adoption.   We,  

therefore, agree with the conclusion arrived  at by the  

High  

Court to  

the  

effect  

that the  

Santhilkumar was legally adopted son of late Arumugha  

Mudaliar.

14. So far as execution of will dated 11th October,  

1984  is  concerned,  the  said  will  had  been  duly  

registered.

15. For the purpose of proving the will,  one of

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the attesting witnesses of the will, namely, Umar Datta  

(PW-4) had been examined.  In his deposition, he had  

stated that he was present when the said will was being  

written by Kalyanasundaram (PW-5).  The scribe of the  

will  had  also  been  examined.   The  High  Court  had  

appreciated the evidence and we have also gone through  

the  relevant  record  which  clearly  reveals  that  

execution of the will dated 11th October, 1984, was duly  

proved.  

16. An effort was made on behalf of the present  

appellant to propound  a  will dated 13th January, 1985.  

The said unregistered will could not be proved and,  

therefore, in our opinion, the High Court was right  

when it came to the conclusion that will dated 13th

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January, 1985, was not a valid will.   

17.  Looking to the findings arrived at by the High  

Court and upon going through the relevant record, we  

are in agreement with the conclusion arrived at by  the  

High  Court  to  the  effect  that  the  adoption  of  

Santhilkumar was valid and will dated 11th October, 1984  

executed by late Arumugha Mudaliar had been proved.  In  

the  

circumstances, the High Court has rightly allowed the  

appeal by setting aside the judgment and decree of the  

trial court dated 15th February, 1989.

18. For the reasons stated hereinabove, we dismiss  

the appeal with no order as to costs.  

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..................J.                             (Dr. MUKUNDAKAM SHARMA)

                           .......................J. (ANIL R. DAVE)

New Delhi January  14,  2011.