P. Muthupillai v. A. Thirumalai and Another — 1995 DIGILAW 925 (MAD)

Judgment :- This appeal is by the 2nd defendant, who failed in the courts below. The suit property originally belonged to one Sri Renga Nachiar Ammal, who purchased it under a sale deed, dated 12. 1939. Her husband Alagia Singam Iyengar died in July, 1931. It is the case of the plaintiff that he executed a will, empowering his wife to adopt any one of the sons of her brothers. That will was executed on 5. 1931, the Registration copy of which is marked as Ex.A-2. Thereafter, Sri Renga Nachiar purchased the property under Ex.A- 1. She executed a settlement deed in favour of her sister under Ex. A-4 dated 25. 1942, giving her a life interest, with a provision for reversion to her heirs, after the death of the life-estate holder. On 6. 1941 Sri RengaNachiar adopted the plaintiff, who was a son of her brother, and a deed of adoption was executed and got registered. Registered copy of which is marked as Ex.A-5. Sri Renga Nachiar died on 23. 1943. 2. Andal Ammal, the life-estate holder, executed a mortgage under Ex.B-20 on 112. 1964. There was a suit on the mortgage in O.S. No.259 of 1967, on the file of the District Munsif, Srivilliputhur. A decree was passed in the suit and the property was brought to sale. The court auction was held on 17. 1968 and the sale certificate was issued in favour of the 1st defendant on 212. 1968, under Ex.B-2. He took delivery on 12. 1965, under Ex.B-3, and sold the same to the 2nd defendant on 2. 1969 under Ex.B-1. 3. Andal Ammal died on 11. 1980. The plaintiff filed the present suit, after issue of notice to the defendants, on 6. 1981. The plaintiff claimed that he being the adopted son of Sri Renga Nachiar was entitled to the property after the death of the life estate holder, Andal Ammal and the 1st defendant, being the court auction purchaser, of the right of Andal Ammal, was not entitled to continue in possession, after her death. 4. The suit was resisted by the defendants by putting the plaintiff to strict proof of the claim that he was adopted by Sri Renga Nachiar. According to the defendants, the plaintiff is also bound to prove that authority was given to Sri Renga Nachiar by her husband, to make an adoption. 4. The suit was resisted by the defendants by putting the plaintiff to strict proof of the claim that he was adopted by Sri Renga Nachiar. According to the defendants, the plaintiff is also bound to prove that authority was given to Sri Renga Nachiar by her husband, to make an adoption. The plaintiff has produced registered copies of the will executed by Alagia Singam Iyengar and the adoption deed. He has also produced the suit register extract (Ex. A-8) of O.S. No.60of 1947, on the file of SubCourt, Madurai. It was a suit for declaration of the plaintiff’s right as adopted son of Sri Renga Nachiar and, therefore, entitled to one half share of the Estate of the partnership run by Sri Renga Nachiar and her brother who was the defendant in that suit. The plaintiff has also produced several other documents to show that she was in enjoyment and he was dealing with other properties, which belonged to Sri Renga Nachiar, having been purchased by her under Ex.A-21 on 2. 1942. He was produced a patta to show that his title was recognised by the revenue authorities. The plaintiff has given evidence in support of his case in which he has stated that the attestors and the scribe of the adoption deed were dead. As regards the original documents, he has stated that he filed the same in support of his case in O.S. No.60 of 1947, Sub Court, Madurai, but did not take return of the same. He applied for return of the documents only in 1983, after the present suit was contested by the defendants. The sub court has returned the application by pointing out that the documents were destroyed. That is evident from Ex.A-45. 5. The courts below have accepted the evidence of the plaintiff and upheld the plea of adoption. The courts below have placed reliance on various documents produced by the plaintiff, including Ex.A-8. It is that concurrent judgment of the courts below, which is challenged in this second appeal. 6. Learned Senior counsel for the appellants contends vehemently that a Will must be proved strictly in accordance with law and, similarly, a deed of adoption must also be proved strictly. It is that concurrent judgment of the courts below, which is challenged in this second appeal. 6. Learned Senior counsel for the appellants contends vehemently that a Will must be proved strictly in accordance with law and, similarly, a deed of adoption must also be proved strictly. It is submitted by him that the original documents have not been produced and the explanation given by the plaintiff for non-production of the said originals is on the face of it not acceptable. It is pointed out by learned senior counsel that unless the plaintiff, who seeks to dispossess the defendants, establishes his title to the property in the manner known to law, he is not entitled to a decree. In support of his contention, learned senior counsel for the appellant places reliance on Dal Bahadur v. Bijai Bahadur, 58 M.L.J. 546: A.I.R. I930P.C. 79:1221.C.8.-571.A. 14, KishoriLal v.Mt. Chaltibai, A.I.R. 1959 S.C. 504, Madhusudan Das v. Smt. Narayani Bai and others, A.l.R. 1983 S.C. 114: (1983)1 S.C.C. 35 : (1983)1 S.C.W.R. 195: (1983)1 S.C.R. 851 , Rahasa Pandiani and others v. Gokulananda Panda and others, A.l.R. 1987 S.C. 962. In all these cases it has been laid down that adoption being a very serious matter, as it seeks to displace the natural succession of property, a very grave and serious onus rests upon the person who put forward the plea for adoption. In such, cases, it has been held that the proof requires strict and almost severe scrutiny, and the longer the time goes back from the date when the power was given to the time when it comes to be examined, the more necessary it is having regard to the fallibility of human memory and the uncertainty of evidence given after the lapse of such time to see that the evidence is sufficient and strong. It is also argued that there is no presumption as regards adoption, as in the case of marriage the long cohabitation is proved. My attention is also drawn to a passage in Mulla’s Hindu Law, 16th Edn. page 532, para 513A, according to which the principle of Factum Valet is ineffectual in the case of an adoption in contravention of the provisions of the texts relating to the capacity to give, capacity to take and the capacity to be the subject of adoption, which are mandatory. 7. page 532, para 513A, according to which the principle of Factum Valet is ineffectual in the case of an adoption in contravention of the provisions of the texts relating to the capacity to give, capacity to take and the capacity to be the subject of adoption, which are mandatory. 7. In my opinion, none of the decisions referred to by learned counsel for the appellants will have any bearing in the present case. They are all cases, in which the adoption is challenged by the persons who would be otherwise entitled to succeed to the property, and the question arose between the members of the family who would have in the natural course succeeded to the property, but for the adoption. But in the present case, it should not be forgotten that the adoption is challenged by a stranger who had purchased only the life estate of ‘A’ who had no right to hold the property after her death. The defendants are relying upon the principle that the burden is always on the plaintiff to prove his title in order to dislodge the person in possession when the title is in dispute. When such a case is being considered it should not be forgotten that on the facts of this case it, is well high impossible for the plaintiff to bring to the court the persons who were directly connected with either the adoption or the Will of Alagia Singam Iyengar, who empowered his wife to take one of her nephews in adoption. The will is dated 5. 1931. The plaintiff has stated categorically that the attestors and scribes of Will and the deed of adoption are dead and that statement is not in dispute. The deed of adoption is dated 6. 1942 and the attestors and the scribe are no more. It is also not in dispute. Both the documents are registered documents and registration copies thereof have been produced before the court. The plaintiff has spoken to the fact that he produced the originals in O.S. No.60 of 1947 to establish his case as adopted son of Sri Renga Nachiar and that he did not take back those documents from court. Both the courts below have accepted that statement and, sitting in second appeal, I cannot hold that the acceptance of plaintiff’s version by the courts below is erroneous. Both the courts below have accepted that statement and, sitting in second appeal, I cannot hold that the acceptance of plaintiff’s version by the courts below is erroneous. Thus, the plaintiff has made out a case for producing the secondary evidence in the shape of registration copies of the two documents. It is contended by learned counsel for the appellants that the plaintiff ought to have been diligent and got back the documents as soon as the suit O.S. No.60 of 1947 ended. It is too well known that be every person does not have the foresight to strong then his claim with documentary evidence and protect himself when he had no doubt whatever that his claim would ever be disputed. Viewed in the background that none of the members of the family had ever challenged his adoption, the plaintiff had no necessity to think at that time that long afterwards in 1964 Andal Ammal would create an encumbrance and bring a handle in the way of the plaintiffs getting the property after her death. The mortgage of Andal Ammal was only in the year 1964 and the purchase by the defendants was in 1969. Andal Ammal lived thereafter for eleven years and soon after her death the plaintiff had issued notice to the defendants asserting his title. 8. The most clinching evidence on the side of the plaintiff is Ex.A-8. No doubt, it is not the decree passed in O.S. No.60 of 1947, but it is the suit register extract. That contains the contents of the decree passed in O.S. No.60 of 1947. The claim made in the suit was that the plaintiff was the adopted son of the Sri Renga Nachiar, who was a partner with the defendants in that suit, who was one of her brothers. The claim was that after the death of Sri Renga Nachiar the plaintiff was entitled to her half share in the net profit of the partnership. He prayed for a declaration of his title and for an account of the dealings and transactions of the partnership. That right was recognised in the decree and it was declared that the plaintiff was entitled to half share in the partnership which existed between his adoptive mother and the defendants. He prayed for a declaration of his title and for an account of the dealings and transactions of the partnership. That right was recognised in the decree and it was declared that the plaintiff was entitled to half share in the partnership which existed between his adoptive mother and the defendants. Thus his adoption was recognised by a decree of court and that was challenged by the defendant in the suit, in appeal A.S. No.164 of 1995 before this Court. But during the pendency of the appeal, the defendant therein accepted the decree and entered into a compromise with regard to the rendition of accounts. The terms of the compromise are also set out in Ex.A-8. That appeal was dismissed as withdrawn pursuant to the compromise. Thus Ex.A-8 proves beyond doubt that the right of the plaintiff as adopted son of Sri Renga Nachiar was declared by court as against a member of the family, who was one of brothers of Sri Renga Nachiar. It should not be forgotten that the plaintiff was the natural son of another brother of Sri Renga Nachiar and he was taken in adoption. .9. When both the courts have accepted the said evidence and upheld the title of the plaintiff, the court does not find any justification whatever to interfere with the same. The question of law which is attempted to be formulated for the purpose of Sec.100, Civil Procedure Code does not arise in this case, as in court’s opinion, both the factum of adoption and the factum of authority given to Sri ‘R.N. ‘by her husband are established by appropriate evidence. .10. Learned counsel for the respondent brings to my notice the judgment of Privy Council in Kanchumathi Venkata Seetharama v. Kanchumathi Raju alias Venkata Krishna Rao and others, 53 M.L.J. 858. In that case, the reversionary heir of a deceased Hindu sued to set aside an adoption made to him by his second widow about 42 vears before the date of suit. .In the courts below the plaintiff denied the adoption. The question raised by him in the appeal to the Privy Council was that the widow had not the authority of her husband to make the adoption. The Privy Council held that the burden rested upon the plaintiff therein who challenged the authority of an admitted adoption and it was of the heaviest character. 11. The question raised by him in the appeal to the Privy Council was that the widow had not the authority of her husband to make the adoption. The Privy Council held that the burden rested upon the plaintiff therein who challenged the authority of an admitted adoption and it was of the heaviest character. 11. Reference is also made to the judgment of the Supreme court in V.Rama Rao v. Bhaskara Rao, A.I.R. 1969 S.C. 1359, the Supreme Court pointed out that adoption by a widow under authority from her husband made in 1904 was sufficiently established when it was proved that it was recognised by every member of the family and the adopted son was accepted to be so by them. The challenge by the reversioner against the validity of the adoption after a lapse of fifty years on the ground that the widow was a minor at the time of adoption was repelled by the court. The court pointed out that all parties to the adoption and all those who could give evidence in support of its validity were not alive at the time of suit and the burden is heavily on the reversioner to rebut the strong presumption in favour of validity of adoption which arises in the case by showing that the widow was a minor at the time of adoption and therefore was not competent to make the adoption. Thus, the court recognised the presumption which would arise in such cases when a challenge is made after such a long lapse of time. 12. I have already stated the relevant facts of this case that the adoption was recognised by the other members of the family and the plaintiff’s right to deal with the property of Sri RengaNachiar was never disputed by the other members of the family and the evidence adduced by the plaintiff, which has been accepted by both the courts, is more than sufficient to prove his title to the property. The decree and judgment passed by the courts below are unassailable and there is no merit in the Second Appeal. It is dismissed with costs.