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Sourasamy Imacule Josephine Vs. Maria Joseph Rock Represented by Power-of Attorney Josephine Mariakannu Sourasamy and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1980)1MLJ255
AppellantSourasamy Imacule Josephine
RespondentMaria Joseph Rock Represented by Power-of Attorney Josephine Mariakannu Sourasamy and ors.
Cases ReferredGoodman and Company v. Thirunavukkarasu
Excerpt:
- .....of the case, the district munsif held that the plaintiff has made out an acceptable case for the deed of adoption being revoked. consequently, he decreed the suit as prayed for.6. on the defendants preferring an appeal, the additional district judge went into the question of limitation a little more elaborately. the learned judge has taken the view that after the execution of the adoption deed exhibit a-1 dated 2nd january, 1962, the indian limitation act, 1963 had come into force in pondicherry with effect from 1st january, 1964, and as per article 57 of schedule part iii of the limitation act, the plaintiff had only three years time to file the suit and inasmuch as the suit had not been filed within three years from the date of the adoption, but filed only on 16th july, 1971, the.....
Judgment:

S. Natarajan, J.

1. This appeal has been preferred by the plaintiff against the reversing judgment of the Second Additional District Judge of Pondicherry in A.S. No. 29 of 1975 on the file of this Court.

2. The suit instituted by the plaintiff is of a somewhat unusual character. The plaintiff, who is a spinster, and the third defendant are sisters. The second defendant is the husband of the third defendant and the first defendant is the son of defendants 2 and 3. The parties are citizens of Pondicherry and are Christians by religion. Hindus as well as Christians who are natives of Pondicherry were, as per the laws governing Pondicherry before its merger with the Union of India, governed by customary Hindu Law in the matter of adoptions, with the difference that in the case of Hindus, religious ceremonies had to be gone through but in the case of Christians, such ceremonies were not necessary. By an arrete dated 29th December, 1855, the Pondicherry Government had prescribed that adoptions should be properly evidenced by deeds and therefore, deeds of adoption should be reduced to writing in a notarial deed and duly homologated by the jude de paix or Justice of Peace. A fortiori, the same procedure had to be followed by Christians also when they effected adoptions, since in their case, the adoptions were not preceded by religious ceremonies.

3. Availing of the facility of adoption granted and recognised by the Government, the plaintiff adopted the first defendant as her son, after obtaining the consent of defendants 2 and 3 by a notarial deed dated 2nd January, 1962. The said deed was approved by the Tribunal of first instance. In consequence of the adoption, the plaintiff educated the first defendant upto college level and thereafter secured for him admission in a Medical college in the State of Assam. Thereafter, she noticed a change in the conduct of the first defendants He did not pass the first examination of the medical degree course, even after several years of study. He also stopped visiting the plaintiff during vacations and began to show an attitude of callousness and negligence. On top of all these things, the plaintiff received information through a friend that the first defendant was given to evil ways and he was visiting the houses of harlots. The plaintiff complained about the first defendant to defendants 2 and 3, but it proved of no avail. Thereupon, the plaintiff wanted to set aside the adoption deed and restore the first defendant to his original status as the son and heir of defendants 2 and 3. It was for that purpose, the plaintiff came forward with the suit O.S. No. 399 of 1971 on the file of the Additional District Munsif, Pondicherry.

4. The suit was resisted by the defendants and various defences were raised by them. It is unnecessary to refer to all those defences because only one question arises for consideration in the appeal, viz., whether the plaintiff's suit had been filed within time and is not affected by limitation. It may however be generally mentioned that the defendants refuted the charge of the plaintiff that the first defendant had proved himself to be unworthy of being the adopted son of the plaintiff.

5. In the written statement filed by the defendants, there was a general plea that the suit was barred by limitation. But this objection was not elaborated and no details were given regarding the basis on which the defence of limitation was raised. During the trial of the suit also, the defendants do not seem to have placed materials before the Court to sustain their objection about the suit being barred by limitation. Consequently, the learned District Munsif, who tried the suit, disposed of the issue relating to limitation in one sentence by saying that no material was forthcoming and therefore he was answering the issue in the negative. On the merits of the case, the District Munsif held that the plaintiff has made out an acceptable case for the deed of adoption being revoked. Consequently, he decreed the suit as prayed for.

6. On the defendants preferring an appeal, the Additional District Judge went into the question of limitation a little more elaborately. The learned Judge has taken the view that after the execution of the adoption deed Exhibit A-1 dated 2nd January, 1962, the Indian Limitation Act, 1963 had come into force in Pondicherry with effect from 1st January, 1964, and as per Article 57 of Schedule Part III of the Limitation Act, the plaintiff had only three years time to file the suit and inasmuch as the suit had not been filed within three years from the date of the adoption, but filed only on 16th July, 1971, the suit was barred by limitation. The District Judge therefore allowed the appeal and dismissed the plaintiff's suit. It is as against that judgment and decree, the plaintiff has come forward with this second appeal.

7. Mr. R. Gopalakrishnan, learned Counsel for the plaintiff strenuously contends that the District Judge is not right in holding that Article 57 of the Schedule Part III of the Limitation Act would apply to the facts of this case, and as such, the plaintiff should have filed the suit within three years from the date of adoption. The learned Counsel then submits that as per the French Code Civil, Article 2262 would govern the case and the Article provides a period of thirty years for the plaintiff to take action for the cancellation of the deed of adoption. In order to substantiate this claim, Mr. R. Gopalakrishnan relies upon the observation of Maharajan, J., in Goodman and Co., v. Thirunavukarasu : (1976)2MLJ221 where the relevant passage is in the following terms:

the saving provisions of the Limitation Act, 1963, make it clear that all French enactments relating to limitation, which were in force in the Union Territory of Pondicherry, at the time the Limitation Act 1963, came into force shall continue to be in force, with this difference, namely, that the periods of limitation prescribed in the local laws must continue to apply as if such periods were the periods prescribed by the Schedule to the Indian Limitation Act, 1963, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply on condition that those provisions are not expressly excluded by such special or local law as has been in force in the Union Territory of Pondicherry.

8. To appreciate the contentions of Mr. Gopalakrishnan it is necessary to refer to some details and also the relevant passages in the plaint filed by the plaintiff. As already stated, the plaintiff adopted the first defendant on 2nd January, 1962 by means of an adoption deed. It was on 12th October, 1966, that she received a letter Exhibit A-4 written by one A.R. Doss informing her of the improper way of life being led by the first defendant at Assam. The suit itself has been filed on 16th July, 1971. Even before Exhibit A-4 was received by the plaintiff, the Indian Limitation Act, 1963, had been extended to Pondicherry and the Act came into force in Pondicherry Territory with effect from 1st January, 1964. We have therefore to see whether the plaintiff is entitled to rely upon the French Code Civil instead of the Limitation Act for entitling her to file the suit for cancellation of the adoption deed.

The cause of action paragraph in the plaint reads as follows:

The cause of action for this suit arose on 2nd January, 1962, the date of adoption; 6th April, 1962, the date of homologation by the Court; and in 1969 and 1970 when the first defendant showed openly the signs of ungratefulness, etc.

The learned Counsel for the plaintiff says that even on 2nd January, 1962 and 6th April, 1969, the cause of action to file the suit had arisen and therefore, it is the French Code Civil that should govern the rights of parties, and consequently as per Art. 2262, the plaintiff has a period of thirty years time to file the suit. This contention cannot be accepted because the suit as framed, cannot take in 2nd January, 1962 or 6th April, 1962 as relevant dates for providing the cause of action. The cause of action for the suit is the attitude of ungratefulness adopted by the first defendant and his leading life in a wayward manner as brought to the notice of the plaintiff by Thiru Doss under Exhibit A-4. Thus the cause for the suit could have arisen only in 1966 when the plaintiff had knowledge of the improper conduct of the first defendant. It is only then, the cause of action has arisen and in that situation, it is only the Indian Limitation Act which will govern the rights of the plaintiff and not the French Code Civil because the Limitation Act had come into force in the Pondicherry. Territory from 1st January, 1964 onwards. Things may be different if the cause of action had arisen before the Limitation Act had come into force in Pondicherry. In such a situation as pointed out in Goodman and Company v. Thirunavukkarasu : (1976)2MLJ221 , the period of limitation prescribed in the local law will continue to apply, as if that period was the one prescribed by the Schedule to the Indian Limitation Act, 1963. Such, however, is not the case here.

9. The learned Appellate Judge is however not right in taking the view that Article 57 Schedule Part III would govern the case of the plaintiff because that Article would be attracted only to a third party to the adoption proceedings. The plaintiff's case however, is one where she is not a third party to the adoption proceedings. She is herself the adopting parent and by means of the suit, she is trying to have the adoption set aside. Therefore, this will be a case where Article 53 of the Limitation Act would apply and not Article 57. But even so, the position does not change, because Article 58 also prescribes only a period of three years limitation, from the time when the right to sue first occurred. For the abovesaid reason, the judgment of the appellate Judge has to be sustained.

10. Mr. Gopalakrishnan, however contends that this is a case where the adoption is void ab initio in that, the plaintiff did not have the adoption deed homologated before the Judge de paix, but had the deed homologated only before the Court of first instance and this breach of procedural formality, vitiates the adoption in its entirety and renders the act, a null and void one in the eyes of law. The learned Counsel would therefore argue that the cause of action must be deemed to have arisen on 2nd January, 1962 or at any rate on 6th April, 1962 when the invalid homologation was obtained and viewed in that manner, it is the French Code Civil, which was then prevailing, that should govern the question of limitation and not the Indian Limitation Act, which came into force much later, i.e., only on 1st January, 1964. I am unable to sustain this contention because the suit does not proceed on the basis that the adoption was void from its inception and therefore the plaintiff is entitled to have the adoption declared as a void one. On the other hand, the plaint has been drafted and the suit has proceeded on the lines that the adoption was fully in accordance with law but subsequent events have entitled the plaintiff to revoke the adoption. In fact, if the adoption was a nullity, then the prayer of the plaintiff in the plaint should have been for declaring the adoption as a nullity and not one for setting aside the adoption, as is now prayed in the plaint. Notwithstanding the absence of pleadings regarding the invalid nature of the adoption, the appellant's counsel would argue that this aspect of the matter has been gone into by the appellate Court and the Appellate Judge has more or less expressed his view that there is substance in the contention of the plaintiff about the adoption being an invalid one and therefore, it should be taken that the suit filed by the plaintiff was also one for declaring the adoption a nullity. This is too far-fetched a contention and can never find acceptance in any Court of law. Merely because the Appellate Judge had strayed away from the pleadings and made reference to a hypothetical proposition not set out in the plaint, the plaintiff will not be entitled to change the character of the suit, and on that basis put forth the argument that the law of limitation as was prevelent earlier should govern the case of the plaintiff and not the Indian Limitation Act, 1963 which had come into force later.

11. For the aforesaid reasons, the judgment and decree of the appellate Judge has to be confirmed. The learned Counsel for the plaintiff then states that liberty should be given to the plaintiff to file a fresh suit for having the adoption of the first defendant declared a nullity and rely upon the period of limitation prescribed in Art. 2262 of the Frence Code Civil. On this aspect of the matter, I do not wish to say anything except to state that if such a right is available to the plaintiff in law to file a fresh suit for declaring the adoption a nullity, then it is open to her to file such a suit and canvass therein the question regarding the period of limitation available to her to file the suit.

12. Subject to these observations, the appeal will stand dismissed but there will be no order as to costs.


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