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May 2011

Adoption — Validity — Will proved by examination of attesting witness and scribe of Will — Hindu Adoption and Maintenance Act, section 6 and section 16, Succession Act section 63.

By Dr. K. Shivaram, Ajay R. Singh Advocates
Reading Time 3 mins
[ Saroja v. Santhilkumar & Ors., AIR 2011 SC 642]

It was the 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 only son had expired in 1982. As the 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 after doing necessary rituals required to be performed under Hindu Law. Late Arumugha Mudaliar had thereafter executed a registered Will whereby the properties referred 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 his grandson Santhilkumar, i.e., the plaintiffs.

As the defendants i.e., the present appellant and respondent Nos. 3 and 4 were interfering with or were likely to interfere with the possession of the properties referred to, a suit 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 did not have absolute right to dispose of the same.

On appeal the Court observed that so far as the adoption of Santhilkumar was concerned, 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. Shri Kandasamy , a witness, 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 been registered. The aforestated facts leave no doubt in mind that the adoption was valid. Even the 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, there was no reason to disbelieve the adoption. Therefore, it was held that Santhilkumar was the legally adopted son of late Arumugha Mudaliar.

So far as execution of the Will was concerned, the said Will had been duly registered. For the purpose of proving the Will, one of the attesting witnesses of the Will, namely, Umar Datta had been examined. In his deposition, he had stated that he was present when the said Will was being written by Kalyanasundaram. The scribe of the Will had also been examined. Thus the Will was proved. The decree of the Trial Court was set aside.

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