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1990 DIGILAW 557 (KER)

Krishna Pillai v. Velayudhan Pillai

1990-12-18

SHAMSUDDIN

body1990
Judgment :- Defendant in O.S.No.156 of 1981 on the file of the Prl. Sub Court, Quilon, is. the appellant. The suit is for declaration of title and recovery of possession with mesne profits. 2. Plaint schedule property originally belonged to Nani Amma who was the aunt of the plaintiff. She obtained the property by virtue of a partition deed executed by the members of her family in 1955. Nani Amma executed a gift deed Ext. Al in favour of the plaintiff on 30-11-1970 where by she conveyed all her rights in favour of the plaintiff reserving the right of enjoyment of the plaint schedule property and of residence in the building, during her life-time. She died on 24-7-1975. From that date the plaintiff was entitled to all the rights of Nani Amma and the entire rights in the property vested absolutely in the plaintiff. As the gift deed came into effect from the date of registration, Nani Amma had no right to revoke the gift deed and to create another deed of gift in favour of the defendant. The plaintiff had to go to distant places in connection with his business activities. The defendant used to reside with Nani Amma as per the direction of the plaintiff. While so, in 1977 one Kesava Pillai filed a suit against the plaintiff and Nani Amma and obtained an attachment order attaching the plaint schedule property. Plaintiff alleged that the gift deed in favour of the defendant was created utilising the papers entrusted with the defendant, that it is vitiated by fraud and that in the circumstances, the plaintiff is entitled to recover possession of the plaint schedule property. 3. Plaintiff alleged that the gift deed in favour of the defendant was created utilising the papers entrusted with the defendant, that it is vitiated by fraud and that in the circumstances, the plaintiff is entitled to recover possession of the plaint schedule property. 3. In the written statement filed by the defendant, he contended that the plaintiff had no right over the plaint schedule property, that deceased Nani Amma executed a gift deed on 22-11-1957 evidenced by Ext.A6 in-favour of one Sreedharan Pillai in respect of the plaint schedule property, that Sreedharan Pillai died on 6-10-1970 issueless, that after the death of Sreedharan Pillai, Nani Amma was residing in the plaint property, that Nani Amma ha no manner of right over the plaint property, that deceased Sreedhran Pillai had no manner of relationship either with Nani Amma or with her husband, that the plaintiff had not obtained any manner of right over the property on the basis of Ext.A1 gift deed, that the said gift-deed was brought about by undue influence and misrepresentation of facts by the plaintiff and that the said gift deed was ab initio void. He further alleged that he is the son of the elder brother of Nani Amma and was looking after the affairs of Nani Amma at her request and that she conveyed the nominal right which she had over the plaint property in his favour by virtue of the gift deed Ext. A5 dated 18-11-1971, that he was collecting rents from the tenants of the shop rooms in the plaint property and that he constructed three rooms attached to the building in the property. He also averred that a separate bath room tm the eastern side of the plaint property was constructed by him and that he is entitled to value of improvements effected by him. He averred that only the legal representatives of Sreedharan Pillai are entitled to file a suit for declaration of title and possession of the plaint schedule property. According to him the suit is also barred by limitation. On the above allegations the defendant prayed that the suit be dismissed. 4. On a consideration of the evidence in the case the court below came to the conclusion that Sreedharan Pillai was the adopted son of Nani Amma, that Ext.A1 came into effect and that therefore Nani Amma was not competent to execute Ext. On the above allegations the defendant prayed that the suit be dismissed. 4. On a consideration of the evidence in the case the court below came to the conclusion that Sreedharan Pillai was the adopted son of Nani Amma, that Ext.A1 came into effect and that therefore Nani Amma was not competent to execute Ext. A4 gift deed in favour of the defendant and in that view of the matter, the court below dismissed the suit. 5. In this appeal, learned counsel for the appellant has challenged the finding of the court below. Learned counsel submitted that there is no evidence of any legal adoption- of Sreedharan Pillai by Nani Amma or by her husband and that therefore no right over the property devolved on Nani Amma on the death of Sreedharan Pillai and that Nani Amma had no competence to create a gift deed in favour of the plaintiff. Learned counsel submitted that the circumstance that Sreedharan Pillai was brought up and educated by Nani Amma and that he was living all along with her is not or which would show that Sreedharan Pillai was adopted by Nani Amma or her husband. In order to appreciate the contention of the learned counsel on this aspect it is profitable to quote the relevant portion of Ext.A6 which is the gift deed executed by Nani Amma in favour of Sreedharan Pillai. which reads as follows: Learned counsel contended that there is no indication in Ext.A6 that Sreedharan Pillai is the adopted son of Nani Amma. In Ext.A6 Sreedharan Pillai is described as son of Padmanabha Pillai, and that gives an indication that Padmanabha Pillai and Nani Amma adopted Sreedharan Pillai as their son. It is not disputed that Padmanabha Pillai is none other than the husband of Nani Amma. No doubt, mere statement in a document that a person is the son or adopted son is not a conclusive proof to hold that as a matter of fact there was adoption. It is not disputed that Padmanabha Pillai is none other than the husband of Nani Amma. No doubt, mere statement in a document that a person is the son or adopted son is not a conclusive proof to hold that as a matter of fact there was adoption. In Banwari Lai v, Trilok Chand and others (AIR 1980 SC 419), the Supreme Court observed as follows: "The statement made by the testator in the Will about defendant No 1 as his adopted son is certainly a piece of admissible evidence but there is no rule of law or prudence laying down the principle that such statement must be regarded as conclusive and this was also the view taken in Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh (AIR 1927 Pat. 61)." Therefore it is clear that though a statement describing that a person is an adopted son or indicating that he is an adopted son is certainly a piece of evidence though it is not conclusive in nature. In this case, there is evidence to show that from his birth Sreedharan Pillai has brought up by Nani Amma. That has been referred to in Ext.A6 itself. P.W.1 in his evidence has deposed that Sreedharan Pillai was adopted by Nani Amma. He also stated that the mother of Sreedharan Pillai died in the hospital and Nani Amma took the child and brought him up and educated him. In the circumstances, the statement contained inExt.A6 has been corroborated by the evidence of P.W.1 and I do not find any reason to differ from the view expressed by the court below that Sreedharan Pillai was the adopted son of Nani Amma. 6. Learned counsel for the appellant submitted that there is no evidence of payment of adiyara or grant of customary theettooram from the Highness. In this connection, learned counsel heavily relied on a decision of the Travancore High Court in Velayudhan Easwaran v. Vythialingam Iyer Ramaswamy Iyer (1 TLR 66) where the Court observed that the confirmation by a Royal Neet issued upon payment of Adiyara fees, is necessary to confer validity on adoption. The defendant has no contention in the written statement or in his evidence as DW.1 that the adoption is invalid for want of conformation by a Royal Neet issued upon payment of adiyara fees. The defendant has no contention in the written statement or in his evidence as DW.1 that the adoption is invalid for want of conformation by a Royal Neet issued upon payment of adiyara fees. In this context I may also refer to the decision of the Travancore High Court in Kanakku Neelakandan Raman v. Neelan Padmanabhan and 2 others (6 TLR 108) where it was held that payment of Adiara fees is not an indispensable condition precedent to the confirmation. A Division Bench of this Court had occasion to consider the question of payment of adiyara in Subramonian Kesavan v. Narayana Pillai (1969 KLT 110) and this Court observed that the payment of adiyara fees is not the indispensable condition precedent to the confirmation by the sovereign of the State, of adoptions made in the families of Malayalies, and adiyara fee is not essential to the validity of adoption. In the circumstances I do not find any merit in the contention raised by the learned counsel in this regard. It is true that the defendant averred that there is no such adoption. But I am unable to countenance this averment in view of the statement made by Nani Amma in Ext.A6 and the description of Sreedharan Pillai in Ext.A6 as the son of Padmanabha Pillai, the husband of Nani Amma. This apart, in my view, the defendant cannot be heard to say that Sreedharan Pillai is not the adopted son of Nani Amma and that Nani Amma had no right in the property for the following reasons. Admittedly the property belonged to Nani Amma and it is under Ext.A6 that the property was gifted to Sreedharan Pillai. The defendant has no case that he is the legal heir of Sreedharan Pillai. A reading of the written statement filed by the defendant would indicate that he was in possession only by virtue of the document Ext.A4 gift deed executed by Nani Amma in favour of the defendant. Before executing Ext.A4, Nani Amma executed Ext.A3 deed dated 5-2-1971 cancelling the gift deed in favour of the plaintiff under Ext. Al. The crucial question that has to be considered is whether the gift deed executed by Nani Amma in favour of the plaintiff as per Ext.A1 was really acted upon. Before executing Ext.A4, Nani Amma executed Ext.A3 deed dated 5-2-1971 cancelling the gift deed in favour of the plaintiff under Ext. Al. The crucial question that has to be considered is whether the gift deed executed by Nani Amma in favour of the plaintiff as per Ext.A1 was really acted upon. If it was not acted upon of course Nani Amma had the right to cancel the gift deed in favour of the plaintiff and also to execute a document in favour of the defendant gifting the property to him. Defendant has not disclaimed the gift deed executed by Nani Amma in his favour. He relied on that gift deed as a source of his right and possession. In the circumstances he cannot be allowed to challenge the right of Nani Amma as heiress to Sreedharan Pillai or her right to execute the gift deed on the basis that after the death of Sreedharan Pillai, the property devolved on her. 7. In support of the contention raised by the plaintiff that Ext.A1 was acted upon, learned counsel for the respondent heavily relied on Ext.A2 a rent deed executed by Meenakshy Amma and others in favour of the plaintiff and Nani Amma. It may be noticed that it is on the same day as Ext.A1 was executed that Ext.A2 rent deed came into existence and it can very well be inferred that it is with the knowledge and consent of both Nani Amma and the plaintiff that the rent deed was executed by Meenakshy Amma in favour of the plaintiff and Nani Amma. Ext. Al says that the property was gifted in favour of the first party therein (Plaintiff) by the second party (Nani amma ) reserving in favour of 2nd party the right to take usufructs during her life-time. It is not disputed that the tenants were occupying the building on the strength of Ext. A2. The original of the gift deed in favour of the plaintiff was also produced by the plaintiff. The possession of the original gift deed with the plaintiff is also an indication that the document was acted upon. It is seen from the document that stamp papers were purchased by the plaintiff and the document was presented for registration by the plaintiff. This circumstance also * would clearly indicate that Ext.A1 was acted upon by the parties. The possession of the original gift deed with the plaintiff is also an indication that the document was acted upon. It is seen from the document that stamp papers were purchased by the plaintiff and the document was presented for registration by the plaintiff. This circumstance also * would clearly indicate that Ext.A1 was acted upon by the parties. No doubt, learned counsel for the appellant strongly relied on the recital contained in Ext.A3 that the original gift deed was removed by the plaintiff from Nani Amma. Ext. AS was executed about two months after the execution of Ext.A1. It has been-recited in Ext. A3 that after the execution of the gift deed no mutation had been effected and the plaintiff had not visited the donor or look after her affairs and also removed the original and she had no intention to see that the document takes effect and that was the reason for cancelling the document. In view of Ext.A2 and other circumstances indicated above, it is difficult to hold that the document had not taken effect on 30-11-1977. It may be that thereafter the relationship between the plaintiff and Nani Amma became strained and that prompted Nani Amma to cancel the gift in favour of the plaintiff. But once it has taken effect, Nani Amma was not competent to cancel the gift deed. If that be the position, the cancellation of Ext. Al under Ext. A3 and also the further gift deed made in favour of the defendant under Ext.A4 cannot have any effect. Nani Amma ceased to be the owner of the property and her right was confined to take usufructs from the property and to reside in the building which rights were reserved in her favour under Ext A1, and that at best Ext.A4 can have effect only till the death of Nani Amma and that too relating to the right reserved under Ext.A1. In the circumstances, the plaintiff has established his title and made out a case for recovery of possession of the plaint schedule property on the strength of title. 8. Counsel for the respondent submitted that the respondent has effected improvements in the property. The court below has observed that no evidence has been adduced to show that the respondent-defendant has effected any improvements. Therefore the court below was right in not entertaining the claim of the defendant for value of improvements. 8. Counsel for the respondent submitted that the respondent has effected improvements in the property. The court below has observed that no evidence has been adduced to show that the respondent-defendant has effected any improvements. Therefore the court below was right in not entertaining the claim of the defendant for value of improvements. There is no merit in the appeal and it is accordingly dismissed. However, I direct the parties to suffer their respective costs.