NDLI: Pharez John Abraham (dead) By Lrs. Vs. Arul Jothi Sivasubramaniam K. & Others

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Family Law appeal thereunder Christian Law CPC Adoption Share of adopted child S96
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Code of Civil Procedure, 1908 (5 of 1908)
Case(s) Referred	Referred Case 0
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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, 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.
Judge	Hon'ble Mr. Justice M.R. Shah
Neutral Citation	2019 INSC 713
Petitioner	Pharez John Abraham (dead) By Lrs.
Respondent	Arul Jothi Sivasubramaniam K. & Others
SCR	[2019] 9 S.C.R. 10
Judgement Date	2019-07-02
Case Number	7207

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