PHAREZ JOHN ABRAHAM (DEAD) BY LRS. versus ARUL JOTHI SIVASUBRAMANIAM K. & OTHERS

Citation: [2019] 9 S.C.R. 10 · Decided: 02-07-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
10
SUPREME COURT REPORTS
[2019] 9 S.C.R.
PHAREZ JOHN ABRAHAM (DEAD) BY LRS.
v.
ARUL JOTHI SIVASUBRAMANIAM K. & OTHERS
(Civil Appeal Nos.7207-7208 of 2008)
JULY 02, 2019
[L. NAGESWARA RAO AND M.R. SHAH, JJ.]
Family Law – Christian Law – Adoption – Share of adopted
child in the property – One ‘JDA’, died intestate leaving behind his
wife (defendant no.1), two sons and two daughters, namely, the
appellant-defendant no.2, ‘TKJ’ and ‘V’ (defendant no.3) & late
‘M’, the adopted children  – After ‘TKJ’ died, her husband and two
children (plaintiffs) instituted suit for partition of the suit property
belonging to ‘JDA’, on the ground that ‘TKJ’ had 1/4th share therein
– ‘M’ died, his widow and daughter were brought on record as
defendant nos.4 & 5 – Suit dismissed – Appeals filed by the plaintiffs
as well defendant nos.3-5 – Allowed by the High Court – Held:
High Court erred in holding that the plaintiffs would have 1/4th
share in the suit property being the heirs of deceased ‘TKJ’ – It was
the specific case of defendant nos.1 & 2 that at the time of marriage
of ‘TKJ’ with plaintiff no.1, she converted to Hinduism despite
opposition and she was paid Rs.50,000/- and some gold ornaments
for relinquishing her right, if any, in the suit property belonging to
‘JDA’– During her life time, ‘TKJ’ never claimed any share/partition
in the suit property – Considering the said conduct on the part of
‘TKJ’ during her life time, the trial Court rightly accepted the defence
of defendant nos.1 & 2 that ‘TKJ’ relinquished her share in the suit
property – Further, the defendant no.2 even incurred the expenditure
from his income for the improvement of the property – Part of the
judgment passed by the High Court holding that plaintiffs shall be
entitled to 1/4th share in the suit property being heirs of ‘TKJ’, set
aside – However, submission of the defendant no.2 that appeal at
the instance of defendant nos.35 was not maintainable, cannot be
accepted –In the written statement, defendant nos.1 & 2 admitted
that defendant no.3 and late ‘M’ were the children of ‘JDA’ – Nothing
has been pointed out that unlike in Hindu law, there is any law
prohibiting the Christian couple to adopt male or female child,
[2019]  9 S.C.R. 10
 10
A
B
C
D
E
F
G
H
11
although they may have natural born male or female child – By
virtue of adoption, child gets transplanted into a new family and is
deemed to be a member thereof as if he or she were born son or
daughter of the adoptive parents having same rights which natural
daughter or son had– Defendant no.1-wife of ‘JDA’ had died,
therefore the suit property is to be divided amongst the defendant
no.2-5 – Defendant nos.2, 3 and defendant nos.4 & 5 (jointly) shall
have 1/3rd share each in the suit property – Decree passed by the
High Court modified to that extent – Code of Civil Procedure, 1908
– s.96 – Suit.
Practice & Procedure – Cross objection – Meaning of – Held:
A memo of cross objection is nothing but one form of appeal and it
takes the place of cross appeal – Code of Civil Procedure, 1908 –
s.96.
Code of Civil Procedure, 1908 – s.96 – Appeal under –
Aggrieved party to file such appeal, who can be – Suit filed for
partition of the suit property amongst the plaintiffs and the
defendants including defendant nos.2-5 – Dismissed – Appeals filed
by the plaintiffs and defendant nos.3-5 –Plea of the appellant-
defendant no.2 that as the defendant nos.3-5 did not file any counter
claim in the suit claiming their specific share and the suit was
dismissed, the appeal at their instance was not maintainable – Held:
In a suit for partition, every co-sharer would have a right to claim
the share/partition– If a person is prejudiced or adversely affected
by the judgment and decree, he can file an appeal – In the present
case, in the written statement filed by the defendant nos.3-5, they
specifically stated that they had 1/4th share each in the suit property
–Therefore, when the suit for partition was dismissed, defendant
nos.3-5 can be said to be aggrieved by the decree passed by the
trial court dismissing the suit– Suit.
Allowing the appeal, the Court
HELD: 1.1 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 ‘TKJ’ – the daughter of ‘JDA’. It was the
specific case on behalf of defendant nos.1 & 2 that at the time of
marriage of ‘TKJ’ with original plaintiff no.1, she converted to
Hinduism and her name was changed to ASM. It 

Excerpt shown. Read the full judgment & AI analysis in Lexace.