PHAREZ JOHN ABRAHAM (DEAD) BY LRS. versus ARUL JOTHI SIVASUBRAMANIAM K. & OTHERS on 2 July 2019

SUPREME COURT REPORTS[2019] 9 S.C.R. 10

[2019] 9 S.C.R.

PHAREZ JOHN ABRAHAM (DEAD) BY LRS.

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v.

ARUL JOTHI SIVASUBRAMANIAM K. & OTHERS

(Civil Appeal Nos.7207-7208 of 2008)

BJULY 02, 2019

[L. NAGESWARA RAO AND M.R. SHAH, JJ.]

Family Law – Christian Law – Adoption – Share of adoptedchild in the property – One ‘JDA’, died intestate leaving behind hiswife (defendant no.1), two sons and two daughters, namely, theCappellant-defendant no.2, ‘TKJ’ and ‘V’ (defendant no.3) & late‘M’, the adopted children – After ‘TKJ’ died, her husband and twochildren (plaintiffs) instituted suit for partition of the suit propertybelonging to ‘JDA’, on the ground that ‘TKJ’ had 1/4[th] share therein– ‘M’ died, his widow and daughter were brought on record asDdefendant nos.4 & 5 – Suit dismissed – Appeals filed by the plaintiffsas well defendant nos.3-5 – Allowed by the High Court – Held:High Court erred in holding that the plaintiffs would have 1/4thshare in the suit property being the heirs of deceased ‘TKJ’ – It wasthe specific case of defendant nos.1 & 2 that at the time of marriageof ‘TKJ’ with plaintiff no.1, she converted to Hinduism despiteEopposition and she was paid Rs.50,000/- and some gold ornamentsfor relinquishing her right, if any, in the suit property belonging to‘JDA’– During her life time, ‘TKJ’ never claimed any share/partitionin the suit property – Considering the said conduct on the part of‘TKJ’ during her life time, the trial Court rightly accepted the defenceFof defendant nos.1 & 2 that ‘TKJ’ relinquished her share in the suitproperty – Further, the defendant no.2 even incurred the expenditurefrom his income for the improvement of the property – Part of thejudgment passed by the High Court holding that plaintiffs shall beentitled to 1/4[th] share in the suit property being heirs of ‘TKJ’, setaside – However, submission of the defendant no.2 that appeal atGthe instance of defendant nos.35 was not maintainable, cannot beaccepted –In the written statement, defendant nos.1 & 2 admittedthat defendant no.3 and late ‘M’ were the children of ‘JDA’ – Nothinghas been pointed out that unlike in Hindu law, there is any lawprohibiting the Christian couple to adopt male or female child, H

although they may have natural born male or female child – Byvirtue of adoption, child gets transplanted into a new family and isdeemed to be a member thereof as if he or she were born son ordaughter of the adoptive parents having same rights which naturaldaughter or son had– Defendant no.1-wife of ‘JDA’ had died,therefore the suit property is to be divided amongst the defendantno.2-5 – Defendant nos.2, 3 and defendant nos.4 & 5 (jointly) shallhave 1/3[rd] share each in the suit property – Decree passed by theHigh 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 ittakes 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 forpartition of the suit property amongst the plaintiffs and thedefendants including defendant nos.2-5 – Dismissed – Appeals filedby 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 counterclaim in the suit claiming their specific share and the suit wasdismissed, the appeal at their instance was not maintainable – Held:In a suit for partition, every co-sharer would have a right to claimthe share/partition– If a person is prejudiced or adversely affectedby the judgment and decree, he can file an appeal – In the presentcase, in the written statement filed by the defendant nos.3-5, theyspecifically stated that they had 1/4[th] share each in the suit property–Therefore, when the suit for partition was dismissed, defendantnos.3-5 can be said to be aggrieved by the decree passed by thetrial court dismissing the suit– Suit.

Conclusion

Allowing the appeal, the Court

HELD: 1.1 The High Court has completely erred in holdingthat the plaintiffs would have 1/4[th] share in the suit property beingthe heirs of deceased ‘TKJ’ – the daughter of ‘JDA’. It was thespecific case on behalf of defendant nos.1 & 2 that at the time ofmarriage of ‘TKJ’ with original plaintiff no.1, she converted toHinduism and her name was changed to ASM. It was the specific A

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12SUPREME COURT REPORTS

[2019] 9 S.C.R.

Acase on behalf of defendant nos.1 & 2 that at the relevant timewhen the said ‘TKJ’ had married to original plaintiff no.1 andconverted to Hinduism, there was opposition. However, despitethe same, the said ‘TKJ’ converted to Hinduism and married tooriginal plaintiff no.1 and she was paid Rs.50,000/- and some goldornaments for relinquishing her right, if any, in the suit propertyBbelonging to ‘JDA’. The trial Court believed the case on behalfof defendant nos. 1 & 2, both on appreciation of evidence as wellas on conduct of ‘TKJ’. ‘JDA’ died intestate in the year 1964.‘TKJ’, the eldest daughter married to original plaintiff no.1 in1979. She died in 1986. During her life time, she never claimedCany share/partition in the suit property belonging to ‘JDA’. Onlyafter the death of ‘TKJ’, the plaintiffs claiming to be her heirsinstituted the suit for partition contending, inter alia, that ‘TKJ’had 1/3[rd] share in the suit property. Therefore, considering theaforesaid conduct on the part of ‘TKJ’ during her life time, thetrial Court rightly accepted the defence on behalf of originalDdefendant nos.1 & 2 that the said ‘TKJ’ was paid Rs.50,000/- andsome gold ornaments at the time of her marriage with originalplaintiff no.1 and she relinquished her share in the suit property.Original defendant no.2 even incurred the expenditure from hisown income for the purpose of improvement of the property.EOriginal defendant no.2 was serving in army and therefore hewas having independent income. Considering the aforesaid factsand circumstances, the plaintiffs would not be entitled to any shareof ‘TKJ’. Therefore, the trial Court rightly dismissed the suitwhich was not required to be interfered with by the High Court.In the facts and circumstances of the case, that part of theFimpugned judgment and order passed by the High Court holdingthat original plaintiffs shall be entitled to 1/4[th] share in the suitproperty being heirs of ‘TKJ’ deserves to be quashed and setaside. The suit was for partition of the suit property amongst theplaintiffs and the defendants including original defendant nos. 3Gto 5. In a suit for partition, every co-sharer would have a right toclaim the share/partition. Even considering the written statementfiled on behalf of original defendant nos. 3 and 4 & 5, they hadspecifically stated that they are having 1/4[th] share each in the suitproperty. Therefore, when the suit for partition was dismissed, H

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original defendant nos. 3 to 5 can be said to be aggrieved by thejudgment and decree passed by the trial court dismissing thesuit for partition and therefore considering Section 96 of the CPC,the appeal at their instance would be maintainable. If a person isprejudiced or adversely affected by the judgment and decree, hecan file an appeal. Even otherwise, it is required to be noted thatin an appeal preferred by the original plaintiffs challenging thejudgment and decree passed by the trial Court dismissing thesuit for partition, it would be open or permissible for originaldefendant nos. 3 to 5 to file cross objection. A memo of crossobjection is nothing but one form of appeal and it takes the placeof a cross appeal. In the present case, instead of filing the crossobjection, original defendant nos. 3 to 5 filed a separate appealchallenging the judgment and decree passed by the trial Courtdismissing the suit for partition in which they also claimed share,in the written statement. Therefore, original defendant nos. 3 to5 can be said to be aggrieved by the judgment and decree passedby the trial Court dismissing the suit. As such no plea that theappeal at the instance of original defendant nos.3 to 5 was notmaintainable, was taken by the appellant before the High Court.Therefore, the submission on behalf of the appellant-originaldefendant no.2 that appeal at the instance of defendant nos. 3-5was not maintainable, cannot be accepted. [Paras 9, 10, 10.1][24-D-H; 25-A-H; 26-B-E]

1.2 Initially defendant nos. 3 to 5 were not joined as partiesto the suit. However, on the objection being taken by defendantnos. 1 & 2 that defendant no.3 and late ‘M’ are also the heirs ofdeceased ‘JDA’ and therefore the suit is bad for non-joinder ofproper parties, the plaintiffs amended the suit and joineddefendant nos. 3 to 5 as parties in the suit. In the writtenstatement, defendant nos. 1 & 2, in fact, admitted that defendantno.3 and late ‘M’ were the children of ‘JDA’. But in the courseof evidence and arguments, it was stated that defendant no.3 andlate Maccabeaus were not the natural born children but they wereadopted children. Therefore, all proceeded on the premise thatdefendant no. 3 and late ‘M’ were the adopted children. Therefore,the present case is also proceeded on the assumption thatdefendant no.3 and late ‘M’ were the adopted children of ‘JDA’.

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AIn the Christian Law, there is no prohibition against adoption.Nothing has been pointed out that unlike in Hindu law, there isany law prohibiting the Christian couple to adopt male or femalechild, although they may have natural born male or female child,as the case may be. Once, it is observed and held that originaldefendant no. 3 and late ‘M’ were the adopted children of ‘JDA’,Bboth of them were entitled to the share in the property of ‘JDA’-adoptive father. By virtue of adoption, a child gets transplantedinto a new family whereafter he or she is deemed to be memberof that family as if he or she were born son or daughter of theadoptive parents having same rights which natural daughter orCson had. The right which the child had to succeed to the propertyby virtue of being son of his natural father, in the family of hisbirth, is thus, clearly to be replaced by similar rights in the adoptivefamily, and, consequently, he would certainly obtain those rightsin the capacity of a member of that family as an adopted son.

Thus, original defendant no.3 and defendant nos. 4 & 5 (heirs ofDlate ‘M’) are rightly held to be the co-sharers in the suit propertybelonging to ‘JDA’ and they are entitled to the respective sharesin the suit property. Original defendant no.1-the wife of ‘JDA’had died and therefore the suit property is required to be dividedamongst original defendant no.2, defendant no.3 and defendantEnos. 4 & 5. Therefore, original defendant no.2, original defendantno.3 and original defendant nos. 4 & 5 (jointly) shall have 1/3[rd]share each in the suit property. Therefore, the impugnedjudgment and decree passed by the High Court holding that theoriginal plaintiffs shall have 1/4[th] share, original defendant nos. 2& 3 shall have 1/4[th] share each and original defendant nos. 4 &F5(jointly) would have 1/4[th] share is required to be modified to theaforesaid extent holding that original defendant nos. 2 & 3 wouldhave 1/3[rd] share each and original defendant nos. 4 & 5 jointlywould have 1/3[rd] share in the suit property. [Paras 11.1, 11.2][26-G-H; 27-A-H]G1.3 The impugned judgment and order passed by the HighCourt in appeal preferred by the original plaintiffs is herebyquashed and set aside and the judgment and decree passed bythe trial Court dismissing the suit is hereby restored. Civil Appealpreferred by original defendant nos. 3 to 5 is hereby partly allowedHand the impugned judgment and order passed by the High Court PHAREZ JOHN ABRAHAM (DEAD) BY LRS. v. ARUL JOTHISIVASUBRAMANIAM K. & OTHERS

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 1/3[rd] share each in the suit property originally belongedto ‘JDA’. [Para 12] [28-A-C]

Benoy Kumar Mondal v. Panchanon MajumdarAIR 1956 Calcutta 177 ; Philips Alfred Malvin v. Y.J.Gonsalvis AIR 1999 Kerala 187;Baldev Singh v.Surinder Mohan Sharma(2003) 1 SCC 34 : [2002] 4Suppl. SCR 43 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7207-7208 of 2008

From the Judgment and Order dated 22.11.2006 of the High Courtof Karnataka at Bangalore in RFA Nos. 546 and 940 of 2004

N. Vasudevan, Ms. Anitha Shenoy, Advs. for the Appellants.

Ms. Shalini Kaul, Chaman Lal Choudhary, Advs. for theRespondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 22.11.2006 passed by the High Court ofKarnataka 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 thepresent appeals.

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

That one John D. Abraham is the propositus. That originaldefendant no.1 is the wife of the said John D. Abraham. Originaldefendant no.2, defendant no.3, one TrizaKalyani John (wife of original

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Aplaintiff no.1) and one late Maccabeaus are the children of propositus.That the suit schedule house is the estate of the propositus. That originaldefendant no.1 – wife of the propositus – John D. Abraham died intestateduring the pendency of the suit. That after the demise of the propositus,his daughter Triza Kalyani John married with original plaintiff no.1, whowas a Hindu. At the relevant time, Triza Kalyani John – daughter of theBpropositus got herself converted to Hinduism and changed her name asA.S. Meenakshi. Original plaintiff nos. 2 and 3 are the children born outof the said wedlock. Triza Kalyani John died in the year 1986. Thatthereafter and after the death of the said Triza Kalyani John, the originalplaintiffs – husband of Triza Kalyani John and their two children institutedCoriginal suit no. 591/1987 in the Court of learned City Civil Judge,Bangalore for partition and separate possession of the suit scheduleproperty. Original plaintiffs filed the suit seeking share of Triza KalyaniJohn (A.S. Meenakshi). It was the case on behalf of the plaintiffs thatthe said A.S.Meenakshi @ Triza Kalyani John was having 1/4[th] share inthe suit property – property belonged to propositus – John D. Abraham.DThe plaintiffs sought the following reliefs in the suit:

i) for partition and separate possession of their one third right andshare, in absolute estate and title, in and in relation to theproperties and premises described in the schedule ‘A’ hereunder,by metes and bounds, having due regard to the quality of soil,Eutility and access to the buildings and premises thereon andconvenience of enjoyment thereof, directing the defendants toput the plaintiffs in such exclusive possession and enjoymentthereof;

ii) appointing one or more Commissioners to inspect the suitFproperties and premises and submits proposals, together withplans and sketches of the buildings thereon and of the premisesthereat, allotting one-third share and extent thereat to theplaintiffs;

iii) passing final decree in pursuance of the preliminary decreeGherein;

iv) directing the defendants to pay the plaintiffs their cost of thesuit and

v) glaring such other reliefs and making such further orders as toit may deem fit and proper in the circumstances of this case.”H

2.1 It is required to be noted that initially the suit was filed onlyagainst the two defendants – wife of late John D. Abraham (defendantno.1) and the appellant herein – Pharez John Abraham, son of late JohnD. Abraham (defendant no.2).

2.2 The suit was resisted by defendant nos. 1 & 2 by filing thejoint written statement. It was contended that John D. Abrahamhadanother son and daughter, namely, Vasanthi and Maccabeaus. It wascontended that the said Vasanthi and Maccabeaus were born to John D.Abraham on account of the intimate relationship of John D. Abrahamwith St. Pushpa. It was submitted that they are also entitled to share inthe suit property of John D. Abraham. Therefore, it was requested todismiss the suit on the ground of non-joinder of proper parties. It wasalso contended on behalf of defendant nos. 1 & 2 that Meenakshi @Triza Kalyani John being a Christian opted to marry plaintiff no.1, aHindu, much against the wishes of the members of the family. Meenakshi@ Triza Kalyani John expressed that she will marry plaintiff no.1 byconverting herself to Hinduism and also that a share in the assets ofJohn D. Abraham may be given. According to the defendants, inpursuance to the said demand put forth by Meenakshi @ Triza KalyaniJohn, a sum of Rs.50,000/- and certain gold ornaments were given toher as defendant nos. 1 & 2 felt that it was not proper to partition theliving house or to induct a non-Christian to stay in the house. Accordingto the defendants, Meenakshi @ Triza Kalyani John had taken her sharein the assets of John D. Abraham and therefore the plaintiffs are notentitled 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 aremembers of Hindu Joint Family?

ii) Do they further prove that late A.S. Meenakshi is the wife of1[st] plaintiff and mother of 2[nd] and 3[rd] plaintiffs, dies(sic) as memberof joint family and was in joint possession of the suit properties?

iii) whether defendants prove that there was a family arrangementor settlement and that late A.S. Meenakshi has given up her claimfor Rs.50,000/-?

iv) whether the suit is bad for non-joinder of necessary parties?

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

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Avi) Whether the settlement pleaded by the defendants is bindingupon the parties?

vii) Whether the suit is properly valued and requisite court feehas been paid/

viii) To what relief, if any, the plaintiffs are entitled?B

3.1 That subsequently Vasanthi and Maccabeaus were alsoimpleaded as parties to the suit and as Maccabeaus had died, his widowand his daughter were brought on record. They were joined as defendantnos. 3 to 5.

C3.2 Both the parties led evidence, oral as well as documentary.That thereafter on appreciation of evidence and considering the evidenceon record, the learned trial Court answered issue no.3 in the affirmativeand held that there was a family arrangement or settlement and that lateA.S. Meenakshi @ Triza Kalyani John has given up her claim forRs.50,000/-. It was held by the learned trial Court that in that view ofDthe matter, the plaintiffs are not entitled to the partition and the share oflate A.S. Meenakshi @ Triza Kalyani John. Consequently, the learnedtrial Court dismissed the suit. The learned trial Court also observed andheld that the suit was barred by limitation as John D. Abraham diedintestate in the year 1964 and in Christanity the property would be dividedEimmediately after the death of the intestate person and that during thelife time Triza Kalyani John @ A.S. Meenakshi has not put forth anyclaim against the members of the erstwhile family after 1964 till herdemise in the year 1986 and if she wanted any share in the assets ofJohn D. Abraham, then she should have done so within three years.The learned trial Court also observed that for separate possession in theFsuit property, the period would have been 12 years from the date of thedeath of John D. Abraham and accordingly the limitation got expired by1976 itself.

4. Feeling aggrieved and dissatisfied with the judgment and decreepassed by the learned trial Court dismissing the suit, the original plaintiffsGpreferred R.F.A. No. 546/2004 before the High Court. Original defendantnos. 3 to 5 also filed a separate appeal challenging the judgment anddecree passed by the learned trial Court dismissing the suit by filingR.F.A. No. 940/2004.

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4.1 That by the impugned common judgment and order, the HighCourt has allowed both the appeals and has held that the trial Courterred in dismissing the suit and in rejecting the claim of defendant nos. 3to 5. The High Court has also observed and held that as the first defendantdied intestate during the pendency of the suit, the two daughters and twosons of John D. Abraham are entitled to 1/4[th]share each. The HighCourt has held that consequently the plaintiffs together are entitled to 1/4[th]share, the 3[rd] defendant is entitled to 1/4[th]share, defendant nos. 4 & 5are entitled to 1/4[th]share and defendant no.2 is entitled to 1/4[th]share.The High Court has directed to draw the preliminary decree accordingly.

4.2 While allowing the appeals, the High Court has observed andheld that though the plaintiffs are Hindus and the property belongs to aChristian, still as per the Indian Succession Act plaintiffs can have partitionof a Christian property if a Christian dies intestate. In support of theabove, the High Court has relied upon and considered the decision of theCalcutta High Court in the case of Benoy Kumar Mondal v. PanchanonMajumdar, reported in AIR 1956 Calcutta 177. While allowing theappeals, the High Court also did not believe the case on behalf of defendantnos. 1 & 2 that A.S.Meenakshi @ Triza Kalyani John relinquished hershare 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 theKerala High Court in the case of Philips Alfred Malvin v. Y.J.Gonsalvis, reported in AIR 1999 Kerala 187, that even if defendantno.3 and late Maccabeaus can be said to be adopted children, adoptionby a Christian couple is permissible and unlike the Hindu Law there is nolaw prohibiting the Christian couple to adopt male or a female childalthough they may have natural born male or female child, as the casemay be. Relying upon the aforesaid decision, the High Court has heldthat defendant no.3 and defendant nos. 4 & 5 (being the heirs of lateMaccabeaus) are entitled to a share, notwithstanding that the thirddefendant and late Maccabeaus are adopted children.

5. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court, the original defendantno.2 – Pharez John Abraham (now dead and represented through legalheirs) has preferred the present appeals.

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A6. Shri N. Vasudevan, learned Advocate has appeared on behalfof the appellant(s) and Ms. Shalini Kaul, learned Advocate has appearedfor the respondents.

6.1 It is vehemently submitted by Shri N. Vasudevan, learnedAdvocate appearing on behalf of the appellants that in the facts andBcircumstances of the case, the High Court has materially erred in notaccepting the case of defendant nos. 1 & 2 that there was a familysettlement by which Triza Kalyani John @ A.S. Meenakshi had givenup her share.

6.2 It is vehemently submitted by Shri N. Vasudevan, learnedCAdvocate appearing on behalf of the appellants that at the relevant timeTriza Kalyani John wanted to marry plaintiff no.1, who was a Hindu andthere was opposition by her family members and therefore she convertedherself to Hinduism and at that time she relinquished her share in theproperty/suit property of John D. Abraham by taking Rs.50,000/-. It issubmitted that the High Court has materially erred in not accepting theDsame on the ground that there is no Deed of Relinquishment executedby TrizaKalyani John @ A.S. Meenakshi and as such the Deed ofRelinquishment is required to be registered. It is vehemently submittedby Shri N. Vasudevan, learned Advocate appearing on behalf of theappellants that family settlement need not be registered and that it canEbe even oral.

6.3 It is vehemently submitted by Shri N. Vasudevan, learnedAdvocate appearing on behalf of the appellants that the settlement infavour of Triza Kalyani John @ A.S. Meenakshi has been proved on thebasis of evidence on record and preponderance of probabilities. It isFvehemently submitted that John D. Abraham died intestate on 19.10.1964;that Triza Kalyani John in the year 1979 converted to Hinduism andchanged her name to A.S. Meenakshi and she got married to plaintiffno.1 in the year 1979; that the said Triza Kalyani John @ A.S. Meenakshidied in the month of July 1986; that at no point of time the said TrizaKalyani John @ A.S. Meenakshi claimed her share in the property ofGJohn D. Abraham. It is submitted that only thereafter and after thedeath of Triza Kalyani John @ A.S. Meenakshi, the original plaintiffno.1 filed a suit for partition and separate possession in the year 1987. Itis submitted that therefore the aforesaid conduct of Triza Kalyani John@ A.S. Meenakshi of not claiming any share in the suit property during H

her life time though John D.Abraham died in the year 1964, would clearlyshow and suggest that Triza Kalyani John @ A.S. Meenakshi hadrelinquished her share by taking Rs.50,000/- at the time when sheconverted to Hinduism to marry plaintiff no.1. It is further submittedthat even defendant nos. 1 & 2 also invested a huge amount in the repairof the suit house.

6.4 It is further submitted by Shri N. Vasudevan, learned Advocateappearing on behalf of the appellants that even considering the aforesaidfacts and circumstances, the suit was barred by limitation. It is submittedthat the High Court has materially erred in holding that the suit waswithin the period of limitation on the ground that the suit is filed withinone year after demise of Triza Kalyani John @ A.S. Meenakshi. It issubmitted that the High Court has not properly appreciated and consideredthat in Christianity, the property would be divided immediately after thedeath of intestate person. It is submitted that as John D. Abraham diedintestate in the year 1964, and that she converted to Hinduism in theyear 1979 and the suit was filed in the year 1987 and therefore consideringthe case from any angle, i.e., to claim the share within a period of threeyears and/or even the relief for separate possession in the property, theperiod of limitation would be 12 years from the death of John D. Abraham,the suit was clearly barred by limitation. It is submitted therefore theHigh Court has materially erred in holding the suit within the period oflimitation.

6.5 It is further submitted by Shri N. Vasudevan, learned Advocateappearing on behalf of the appellants that even otherwise the High Courthas materially erred in holding that defendant nos. 3 to 5 are also having1/4[th]share despite the fact that the 3[rd] defendant and late Maccabeauswere the illegitimate children who were baptised on 22.7.1951 and5.6.1959 respectively. It is submitted that even otherwise the High Courthas materially erred in holding that the adopted Christian children areentitled to his/her share in the property as it happens in a Hindu family.

6.6 It is vehemently submitted by Shri N. Vasudevan, learnedAdvocate appearing on behalf of the appellants that even otherwisedefendant nos. 3 to 5 would not have claimed any share in absence ofany counter claim. It is submitted that therefore as such the appeal filedby original defendant nos. 3 to 5 being R.F.A. No. 940/2004 would not atall be maintainable.

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A6.7 Making the above submissions, it is prayed to allow thepresent appeals.

7. Both these appeals are vehemently opposed by Ms. ShaliniKaul, learned Advocate appearing on behalf of the respondents herein –the original plaintiffs and the supporting defendants.B

7.1 It is vehemently submitted by the learned Advocate appearingon behalf of the respondents that in the absence of any Deed ofRelinquishment executed by Triza Kalyani John @ A.S. Meenakshirelinquishing her share and in the absence of any other evidence thatA.S.Meenakshi @ Triza Kalyani John had given up/relinquished her shareCby taking Rs.50,000/- and other gold ornaments, the High Court hasrightly disbelieved the same and has rightly held that defendant nos. 1 &2 have failed to prove that there was any relinquishment of her share byTriza Kalyani John @ A.S. Meenakshi.

7.2 It is vehemently submitted by the learned Advocate appearingDon behalf of the respondents that the High Court has rightly held,considering the provisions of the Indian Succession Act that even a non-Christian and in the present case Hindus can claim partition in the suitproperty of a Christian died intestate.

7.3 It is further submitted by the learned Advocate appearing onEbehalf of the respondents that so far as the finding recorded by thelearned trial Court on limitation is concerned, at the outset, it is requiredto be noted that there was no specific issue framed by the learned trialCourt with regard to limitation. It is submitted therefore that in theabsence of any specific issue framed on limitation, the learned trial Courtought not to have held that the suit was barred by limitation.F

7.4 Now so far as the impugned judgment and order passed bythe High Court recognising the share of defendant nos. 3 to 5 is concerned,it is vehemently submitted by the learned Advocate appearing on behalfof the respondents that, in fact, defendant no.3 and the deceasedMaccabeaus were the children of deceased John D. Abraham out of hisGmarriage with St. Pushpa in the year 1951. It is submitted that assumingthat they were the adopted children of deceased John D. Abraham, inthat case also, even being the adopted children they are having the sharein 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 bydefendant nos. 3 to 5, the appeal filed by original defendant nos. 3 to 5being R.F.A. No. 940/2004 was not maintainable at all and therefore theHigh Court has materially erred in passing the decree in their favourholding that original defendant no.3 and defendant nos. 4 &5 (being theheirs of deceased Maccabeaus) are having 1/4[th ]share in the suit propertyis concerned, it is submitted that in a suit for partition, every heir of thedeceased who died intestate would have a right and they can claim theshare even without filing any counter claim. It is submitted that evenotherwise such a plea/objection was never taken before the High Courtand 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 thepresent appeals.

8. We have heard the learned Advocates appearing for therespective parties at length.

8.1 At the outset, it is required to be noted and as statedhereinabove, the suit property initially belonged to one John D. Abraham.The said John D. Abraham died intestate in the year 1964 leaving behindhim his wife –Esther Abraham – original defendant no.1 and four children– two sons and two daughters, namely, Pharez John Abraham (originaldefendant no.2); Triza Kalyani John @ A.S. Meenakshi (the eldestdaughter of John D. Abraham and the wife of original plaintiff no.1);Vasanthi (original defendant no.3); and Late Maccabeaus (father ofdefendant nos. 4 & 5). That in the year 1979, Triza Kalyani Johnconverted to Hinduism and married with original plaintiff no.1. That shedied in the year 1986 leaving behind her the original plaintiffs. That afterthe death of Triza Kalyani John @ Meenakshi, the original plaintiffs –the husband and children of Triza Kalyani John @ Meenakshi institutedthe present suit for claiming partition and a separate possession andclaimed that Triza Kalyani John @ Meenakshi had 1/3[rd] share in theproperty of John D. Abraham, who died intestate. It is required to benoted that initially the plaintiffs, claiming to be the heirs of Triza KalyaniJohn @ Meenakshi joined original defendant nos. 1 & 2 - EstherAbraham, wife of John D. Abraham and Pharez John Abraham, son of ABC

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AJohn D. Abraham and stated that all the three namely original defendantno.1, original defendant no.2 and Triza Kalyani John @ Meenakshi had1/3[rd] share each in the suit property. However, subsequently, originaldefendant nos. 3 to 5 came to be joined as parties. It was found thatdefendant no.3 – Vasanthi and late Maccabeaus were the adoptedchildren of John D. Abraham. The learned trial Court dismissed the suitBon merits as well as on the ground of limitation. In the appeals preferredby the original plaintiffs and original defendant nos. 3 to 5, the HighCourt has decreed the suit and has held that original plaintiffs, originaldefendant no.2, original defendant no.3 and original defendant nos. 4 &5 (jointly) have 1/4[th] share each in the suit property. The impugnedCjudgment and order passed by the High Court is the subject matter ofpresent appeals at the instance of original defendant no.2 (now deceasedand represented through the legal heirs).

9. Having heard the learned counsel for the respective partiesand considering the evidence/material on record, we are of the viewDthat the High Court has completely erred in holding that the plaintiffswould have 1/4[th] share in the suit property being the heirs of deceasedTriza Kalyani John @ Meenakshi – the daughter of John D. Abraham.It was the specific case on behalf of defendant nos. 1 & 2 that at thetime of marriage of Triza Kalyani John @ Meenakshi with original plaintiff no.1, she converted to Hinduism and her name was changed to A.S.EMeenakshi. It was the specific case on behalf of defendant nos. 1 & 2that at the relevant time when the said Triza Kalyani John @ Meenakshihad married to original plaintiff no.1 and converted to Hinduism, therewas opposition. However, despite the same, the said Triza Kalyani John@ Meenakshi converted to Hinduism and married to original plaintiffFno.1 and she was paid Rs.50,000/- and some gold ornaments forrelinquishing 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 appreciation of evidence as well as on conduct of TrizaKalyani John @ Meenakshi. The trial Court also dismissed the suit onthe ground of limitation. It is to be noted that the John D. Abraham diedGintestate in the year 1964. Triza Kalyani John, the eldest daughter ofJohn D. Abraham married to original plaintiff no.1 in the year 1979. Shedied in the year 1986. During her life time, she never claimed any share/partition in the suit property belonging to John D. Abraham. Only afterthe death of Triza Kalyani John @ Meenakshi, the plaintiffs claiming toHbe the heirs of Triza Kalyani John @ Meenakshi instituted the suit for

partition contending, inter alia, that Triza Kalyani John @ Meenakshihad 1/3[rd] share in the suit property belonging to John D. Abraham, whodied intestate. Therefore, considering the aforesaid conduct on the partof Triza Kalyani John @ Meenakshi during her life time, the learned trialCourt 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 originalplaintiff no.1 and the said Triza Kalyani John @ Meenakshi relinquishedher share in the suit property. It is required to be noted that originaldefendant no.2 even incurred the expenditure from his own income forthe purpose of improvement of the property. Original defendant no.2was serving in army and therefore he was having independent income.Considering the aforesaid facts and circumstances, the plaintiffs wouldnot be entitled to any share of Triza Kalyani John @ Meenakshi.Therefore, the learned trial Court rightly dismissed the suit which wasnot required to be interfered with by the High Court. In the facts andcircumstances of the case, that part of the impugned judgment and orderpassed by the High Court holding that original plaintiffs shall be entitledto 1/4[th] 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 bythe High Court holding that original defendant nos. 3 to 5 are also having1/4[th] share – defendant no.3 and defendant nos. 4 & 5 in the suit propertyis concerned, it is the case on behalf of defendant no.2 – the appellantherein that as the original defendant nos. 3 to 5 did not file any counterclaim 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 notmaintainable is concerned, it is required to be noted that the suit was forpartition of the suit property amongst the plaintiffs and the defendantsincluding original defendant nos. 3 to 5. In a suit for partition, every co-sharer would have a right to claim the share/partition. Even consideringthe written statement filed on behalf of original defendant nos. 3 and 4& 5, they had specifically stated that they are having 1/4[th] share each inthe suit property. Therefore, when the suit for partition was dismissed,original defendant nos. 3 to 5 can be said to be aggrieved by the judgmentand decree passed by the learned trial court dismissing the suit for partitionand therefore considering Section 96 of the CPC, the appeal at theirinstance would be maintainable.

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A10.1 At this stage, a decision of this Court in the case of BaldevSingh v. Surinder Mohan Sharma, reported in (2003) 1 SCC 34 isrequired to be referred to. A three Judge Bench of this Court in theaforesaid decision has opined that an appeal under Section 96 of theCode would be maintainable only at the instance of a person aggrievedby and dissatisfied with the judgment and decree. Thus, if a person isBprejudiced or adversely affected by the judgment and decree, he can filean appeal. Even otherwise, it is required to be noted that in an appealpreferred by the original plaintiffs challenging the judgment and decreepassed by the learned trial Court dismissing the suit for partition, it wouldbe open or permissible for original defendant nos. 3 to 5 to file crossCobjection. As per the settled proposition of law, a memo of cross objectionis nothing but one form of appeal and it takes the place of a cross appeal.In the present case, instead of filing the cross objection, original defendantnos. 3 to 5 filed a separate appeal challenging the judgment and decreepassed by the learned trial Court dismissing the suit for partition in whichthey also claimed share in the suit property, of course in the writtenDstatement. Therefore, original defendant nos. 3 to 5 can be said to beaggrieved by the judgment and decree passed by the learned trial Courtdismissing the suit for partition claiming to be co-sharers. Even otherwise,it is required to be noted that as such no plea that the appeal at theinstance of original defendant nos. 3 to 5 was not maintainable, wasEtaken by the appellant before the High Court. Therefore, the submissionon behalf of the appellant – original defendant no.2 that appeal at theinstance of defendant nos. 3 to 5 being RFA No. 940/2004 was notmaintainable, cannot be accepted.

11. Now the next question which is posed for consideration beforeFthis Court is, whether defendant nos. 3 to 5 would have any share in thesuit property belonging to John D. Abraham?

11.1 It is required to be noted that initially defendant nos. 3 to 5were not joined as parties to the suit. However, on the objection beingtaken by defendant nos. 1 & 2 that defendant no.3 and late MaccabeausGare also the heirs of deceased John D. Abraham and therefore the suit isbad for non-joinder of proper parties, the plaintiffs amended the suit andjoined 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 lateMaccabeaus were the children of John D. Abraham. But in the course H

of evidence and arguments, it was stated that defendant no.3 and lateMaccabeaus were not the natural born children but they were adoptedchildren. Therefore, all proceeded on the premise that defendant no. 3and late Maccabeaus were the adopted children. Therefore, we mayalso proceed further with the case on the assumption that defendantno.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 prohibitionagainst adoption. Nothing has been pointed out that unlike in Hindu law,there is any law prohibiting the Christian couple to adopt male or femalechild, although they may have natural born male or female child, as thecase may be. Once, it is observed and held that original defendant no. 3and 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 newfamily whereafter he or she is deemed to be member of that family as ifhe or she were born son or daughter of the adoptive parents havingsame rights which natural daughter or son had. The right which thechild had to succeed to the property by virtue of being son of his naturalfather, in the family of his birth, is thus, clearly to be replaced by similarrights in the adoptive family, and, consequently, he would certainly obtainthose rights in the capacity of a member of that family as an adoptedson. Thus, original defendant no.3 and defendant nos. 4 & 5 (heirs oflate Maccabeaus) are rightly held to be the co-sharers in the suit propertybelonging to John D. Abraham and they are entitled to the respectiveshares in the suit property belonging to John D. Abraham. Originaldefendant no.1 – the wife of John D. Abraham had died and thereforethe suit property is required to be divided amongst original defendantno.2, defendant no.3 and defendant nos. 4 & 5. Therefore, originaldefendant no.2, original defendant no.3 and original defendant nos. 4 &5 (jointly) shall have 1/3[rd] share each in the suit property. Therefore, theimpugned judgment and decree passed by the High Court holding thatthe original plaintiffs shall have 1/4[th] share, original defendant nos. 2 &3 shall have 1/4[th] share each and original defendant nos. 4 & 5(jointly)would have 1/4[th] share is required to be modified to the aforesaid extentholding that original defendant nos. 2 & 3 would have 1/3[rd] share eachand original defendant nos. 4 & 5 jointly would have 1/3[rd] share in thesuit property.

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A12. In view of the above and for the reasons stated above, CivilAppeal arising from R.F.A. No. 546/2004 is hereby allowed. Theimpugned judgment and order passed by the High Court in R.F.A. No.546/2004 preferred by the original plaintiffs is hereby quashed and setaside and the judgment and decree passed by the learned trial Courtdismissing the suit is hereby restored. Civil Appeal arising from R.F.A.BNo. 940/2004, preferred by original defendant nos. 3 to 5 is hereby partlyallowed and the impugned judgment and order passed by the High Courtis hereby modified and it is held that original defendant no.2, originaldefendant no.3 and original defendant nos. 4 & 5 (jointly) shall have1/3[rd] share each in the suit property originally belonged to JohnCD.Abraham. However, in the facts and circumstances of the case,there shall be no order as to costs.

Divya Pandey

Appeal allowed.

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