Judgment :- The above Appeal Suit is directed against the judgment and decree dated 03.03.1994 made in O.S. No. 11 of 1984 by the Court of Subordinate Judge, Tiruvallur, thereby dismissing the suit without costs, which was filed by the appellant herein against the respondents for partition and separate possession of half share in the suit properties and for recovery of the share of profits from the date of suit and for costs. 2. Originally, there were six defendants to the suit, out of whom, the first defendant has been reported to have been dead on 18-01-93 i.e., during the pendancy of the suit and hence at the time of trial, there had been only five defendants, who are figuring as respondents in the above appeal suit. 3. So far as the case put up by the appellant/plaintiff before the trial Court in O.S. No. 11 of 1984 is concerned, it is averred in the plaint that one Kuppusami Naicker of Ramankoil had three wives, namely, Neelammal, Rajammal and Guravammal respectively, among whom, the first wife Neelammal died without any issue, the second wife i.e. the deceased first defendant-Rajammal also did not have any issue and his third wife Guravammal died in the year 1969, leaving behind her only daughter Lalitha-the second defendant; that even prior to the birth of the second defendant, since rendered without a child, the said Kuppusamy Naicker and the deceased first defendant adopted the plaintiff as their daughter as per the custom of Hindu religion; that her natural parents gave her in adoption to the said Kuppusamy Naicker and the deceased first defendant at the tender age of three months and was grown as their daughter in their house. 4. 4. The further case of the plaintiff, as pleaded in the plaint, is that Kuppusamy Naicker got her married with one Manivannan of Seshampettai on 22.06.1964 and the marriage was solemnized at the residence of Kuppusamy Naicker at Ramankoil; that the said Kuppusamy Naicker died in the year 1970, leaving the plaintiff and defendants 1 and 2 as his only legal heirs; that even after marriage, the plaintiff and her husband stayed with Kuppusamy Naicker at his request and looked after the family and the properties for the benefit of the family and that on account of misunderstandings that arose between the plaintiff and the first defendant in the year 1974, she left the said house along with her husband to her husbands place of Seshampettai. 5. The further case of the plaintiff is that the schedule mentioned properties are the self acquired properties of late Kuppusamy Naicker and therefore she is entitled to a share in the properties along with defendants 1 and 2; that she issued a notice dated 1.10.1974 to the first defendant calling upon her to effect partition of the suit properties and to allot her share, but the fist defendant replied with false allegations and later in the presence of elders, the first defendant promised to effect a partition after the marriage of the second defendant, but in spite of the marriage of the second defendant held in the year 1976, the first defendant did not choose to effect the partition; that the plaintiff was also given to understand that the defendants 1 and 2 have been creating sham and nominal documents in favour of the other defendants with a view to defeat the rightful claims of the plaintiff and hence defendants 3 to 6 have also been made necessary parties to the suit; that since the defendants 1 and 2 are enjoying the entire properties, except items 39 and 40 of the suit schedule properties, they are liable to pay Rs. 10,000/- per year to the plaintiff as mesne profits, and hence the suit for partition, separate possession of her share and for mesne profits. Since the first defendant also died during the pendency of the suit, the plaintiff claimed half share in the suit properties along with second defendant. 6. 10,000/- per year to the plaintiff as mesne profits, and hence the suit for partition, separate possession of her share and for mesne profits. Since the first defendant also died during the pendency of the suit, the plaintiff claimed half share in the suit properties along with second defendant. 6. The suit properties are in the nature of landed properties and house sites and in certain house sites with the houses thereon, totally falling under 46 items. 7. In the written statement filed by the first defendant and adopted by defendants 2 to 6, they would deny the plaintiff to have been adopted by Kuppusamy Naicker and the custom pleaded towards the adoption as not only false but devoid of particulars and a begging details. They would further contend that the plaintiff is neither the adoptive daughter of Kuppusamy Naicker nor had she been brought up by him in such capacity; that the plaintiff is the daughter of one Angammal, who is younger sister of the first defendant Rajammal; that since Angammal was ailing and her husband Narayanaswamy was leading a wayward life, Kuppusamy Naicker and the first defendant not only looked after Angammal by keeping her at their house, but also brought up the plaintiff; that the marriage of the plaintiff was celebrated in 1964 aided by Kuppusamy Naicker and at the request of the newly married couple, they were permitted to reside in the village to look after the cultivation; that since the plaintiff and her husband started pilfering the income from the land, they were sent out of the village and these defendants would deny the allegation that the husband of the plaintiff was treated illitom son-in-law by Kuppusamy Naicker and would also deny the allegation that the plaintiff is in enjoyment of Ac.0.55 cents in item Nos. 39 and 40 of the plaint schedule properties. 8. 39 and 40 of the plaint schedule properties. 8. The further case of the defendants, as pleaded in the written statement is that the plaintiff was never in joint possession nor is she justified in paying the meagre Court fee; that the plaintiff should have paid the Court Fee on the market value of the properties; that the plaintiff is not entitled to any share of the suit properties not could she demand a partition; that the documents referred to are not sham and nominal documents but have come out of genuine transactions and the plaintiff has no manner of right to testify the truthfulness and validity of the said transactions; that neither the plaintiff is entitled to any share nor any profit therefrom and would ultimately pray for dismissing the suit with costs. 9. The trial Court, in consideration of the pleadings, put forth by the contesting parties, would frame five issues and would order for the trial of the above suit, wherein the plaintiff would examine five witnesses for oral evidence as P.Ws.1 to 5 - herself appearing as P.W.I, Angammal, her natural mother as P.W.2, one Kannappa Naidu as P.W.3, one Madurai Chetty as P.W.4 and her husband Manivannan as P.W.5. Whereas on the part of the defendants, the second defendant would examine herself as D.W.I. For documentary evidence, the plaintiff would mark 17 documents as Exs. A.1 to A. 17 and on the part of the defendants, no documents have been marked. Two Court documents would be marked as Exs. Cl and C.2, which are respectively the report and sketch drawn by the Advocate-Commissioner. 10. A.1 to A. 17 and on the part of the defendants, no documents have been marked. Two Court documents would be marked as Exs. Cl and C.2, which are respectively the report and sketch drawn by the Advocate-Commissioner. 10. The plaintiff in her evidence as P.W.I would depose that for the last 17 or 18 years, she is staying at her mother-in-laws place at Seshampettai; that prior to that, she was residing at Ramankoil; that she got married in the year 1964; that Kuppusami Naicker of Ramankoil was her adoptive father, who adopted her, when she was a tender child of three months old; that her adoptive father Kuppusami Naicker had three wives the first one Neelavathi, who be got a child, but died early; Raj animal (the first defendant)/is the second one, whom Kuppusami Naicker got married after the death of his first wife and she was also issueless and Kuppusamy Naicker married Gunammal as third wife in order to get a child, but since he did not have a child, the plaintiff was adopted by Kuppusami Naicker in the year 1944 and two or three years later, the second defendant was born. In the cross-examination, this witness would depose that till she got married at the age of 18 years and thereafter till she be got three children, she was residing at Ramankoil; that thereafter for the last 4 or 5 years, she was residing at her mother-in-laws place; that she issued Ex. A-1 notice dated 5.3.1983 seeking partition of the suit properties, for which Ex. A.2 reply had been sent; that in Senji village, her father Kuppusamy Naicker admitted her in a school, where she studied upto 5th standard and would mark the record sheet as Ex. A.3, in which her fathers name was shown as Kuppusami; that in the year 1958, she attained puberty and it was her father-Kuppusami Naicker, who conducted the celebrations and Ex. A.4 was the invitation printed for the said ceremony; that in 1964, her betrothal was held, for which Ex. A.5 dated 1.6.64 was the invitation printed and it has been signed both by her father-Kuppusami Naicker and her father-in-law Govindasamy; that Ex. A.6 is the invitation independently printed by her father for betrothal; that Ex. A.4 was the invitation printed for the said ceremony; that in 1964, her betrothal was held, for which Ex. A.5 dated 1.6.64 was the invitation printed and it has been signed both by her father-Kuppusami Naicker and her father-in-law Govindasamy; that Ex. A.6 is the invitation independently printed by her father for betrothal; that Ex. A.7 is the marriage invitation, in which she has been termed as the elder daughter by late Kuppusami; that one Manugur Sambasivam, Astrologer wrote her ‘Jathakam’ and the said document is Ex. A.8, wherein it is clearly indicated that she is the adopted daughter of R. Kuppusami; that Ex. A.9 is the ration card; that by pledging a house belonging to him at Madras in Mylapore Funds Office for Rs. 5,000/-, Kuppusami Naicker celebrated her marriage; that Kuppusami was alive till 1970; that he was taking care of the lands at Ramankoil and on his death, she was cultivating the said lands; that joining hands with her husband and Rajammal-the first defendant they conducted the last ceremony and the obsequies of late Kuppusami; that on account of the differences that arose between herself and defendants 1 and 2, she left the house and at present the second defendant was also married and nobody is residing in the house at Ramankoil; that she also filed the suit against the purchasers of the land from the defendants 1 and 2; that she is entitled to 1/3rd share in the suit properties besides being entitled to 1/3rd share of the respects in the Droupathi Amman Koil festival; that it was Kuppusami, who was mangaing the affairs of Droupathi Amman Koil, Chintadripet and the vacant sites belong to the same; that later on for two years, it was she, who conducted the festival for the temple and would mark the festival invitation as Ex. A.10; that the first defendant is the elder sister of her original mother-Angammal; that since there was no child even after three marriages, Kuppusami Naicker adopted her and seven years later only, the second defendant born. 11. This witness would also depose in her further examination that her marriage was performed at the residence of Kuppusamy at Ramankoil; that she issued notice under Ex. A.ll, dated 1.10.74 for partition and the first defendant sent a reply under Ex. 11. This witness would also depose in her further examination that her marriage was performed at the residence of Kuppusamy at Ramankoil; that she issued notice under Ex. A.ll, dated 1.10.74 for partition and the first defendant sent a reply under Ex. A.12, dated 29.10.74; that a Commissioner got appointed for showing the demolished house and his report and plan are Exs. C.1 and C.2 respectively; that she is in enjoyment of Ac.0.50 cents only; that 6 or 7 persons were the tenants at Chintadripet property and that she issued notices to them also; that in the front portion of the said building, there are three shops now; that she does not know as to how many persons are in occupation at the rear portion; that since she was told by defendants 1 and 2 that they would give her share in the properties, after the marriage of second defendant, she did not file the suit immediately, but later on defendants 1 and 2 told her that her share would be given after her son grows up and since her share was not given even after her son attained majority, she filed the suit; that in the lands, the first defendant has cultivated sugarcane; that she is entitled to 1/3rd share in the suit properties; that Ex. A.13 is the copy of the Mortgage Deed; that in 1973, she cleared the mortgage loan; that she handed over the original deed to the first defendant and later, the first defendant got her signature in the said deed and that the original of Ex. A.13 is only with the first defendant. 12. A.13 is the copy of the Mortgage Deed; that in 1973, she cleared the mortgage loan; that she handed over the original deed to the first defendant and later, the first defendant got her signature in the said deed and that the original of Ex. A.13 is only with the first defendant. 12. In the further cross-examination, this witness would depose that through Rajammal-the first defendant and her natural parents, she came to know about her adoption by Kuppusamy Naicker and his wife; that her natural parents-Angammal and Narayana Swamy did not attend to her marriage; that just before and after her marriage, she came to know about her adoption by Kuppusamy Naicker and his wife, through the first defendant and her natural parents; that they informed her that observing all rituals of adoption, such as, performing Homam, feeding ten poor persons etc., Kuppusamy Naicker taken her in adoption; that there is 4 or 5 years age difference between herself and her elder sister; that Kuppusamy Naicker had also adopted her sisters daughter Hema @ Andal, but did not bring up Gowry nor celebrated her marriage; that on 22.06.1964-the date borne by Ex. A.7, she got married; that the betrothal was held on 1.6.1964; that it is false to allege that Exs. A.5, A.7 and A.8 were made up for the purpose of this case; that the second defendant got married in the year 1975; that she issued notice in the year 1974; that under Ex. A. 12-reply notice, her right in the property or her share has not been denied; that she herself has cultivated the land to the extent of Ac.7.00. She would vehemently deny the suggestion that she does not have any right in the properties. 13. She would further depose that one Sambanda Murthy wrote her horoscope and the horoscope of me second defendant as seen in Ex. A.15; that her father brought Sambanda Murthy to the house and she got only stray knowledge about writing of the horoscope; that the accounts books is belonging to her father and the same would be marked as Ex. A.16, wherein the accounts relating to her marriage would be marked as Ex. A.17 and that her father handed over Exs. A.16 and A.17 to her. She would deny the suggestion that the account books were made up for the purpose of this case. 14. A.16, wherein the accounts relating to her marriage would be marked as Ex. A.17 and that her father handed over Exs. A.16 and A.17 to her. She would deny the suggestion that the account books were made up for the purpose of this case. 14. One Angammal, the natural mother of P.W.I would be examined as P.W.2 and she would depose that she has 5 female children and P.W.I Ramabai is third in the row; that she was given in adoption to her sister Rajammal and her husband Kuppusamy Naicker, when she was three months old; that keeping the ‘Kalasam’ growing ‘Homam’ and pouring water in her hand, she bequeathed the child in the arms of Rajammal in the presence of Kuppusamy Naicker and his second wife Gunammal; that one Akkusamy Naidu performed all the ceremonies; that after handing over the child, she stayed there for 2 or 3 months and thereafter returned to her residence; that after the said adoption, P.W.I was not in her house and it was Kuppusamy, who did everything for P.W.I; that only through her, P.W.I came to know about her adoption; that only when she was instructing the Lawyer, P.W.I came to know about all these details; that in 1974 and subsequently in 1982. P.W.I issued notices and at that time also, this witness briefed the Lawyer; that they are at Madras for the last 30 years; that P.W.I and her husband are not with her: that she does not know about one Prema; that Kuppusamy brought up yet another girl and he gave her in marriage as he had done in the case of Ramabai (P.W.I) and that she gave P.W.I m adoption and Rajammal (the first defendant) took her in adoption. 15. 15. One Kannappa Naidu would be examined as P.W.3 and this witness would depose that he knows P.W.I and Kuppusamy Naicker, who had three wives, among whom, the second wife is the first defendant; that the said Kuppusamy Naicker was issueless and adopted the plaintiff and gave her in marriage to one Mani; that 5 or 6 years after the adoption of the plaintiff by Kuppusamy Naicker, the second defendant was born; that there was a ‘Sanyasin’ at their house in whose presence, keeping the ‘Kalasam’, Angammal and Narayana Swamy gave the child to Kuppusamy and the first defendant in adoption and he knows this in person; that the plaintiff, from that time onwards, grew up at the house of Kuppusamy and she studied and attained puberty and got married with Mani in the house of Kuppusamy Naicker only; that Mani was doing agriculture; that on account of some disputes, now, the plaintiff and her husband Mani have gone to Seshampettai. In the cross examination, this witness would depose that the plaintiff and her husband Mani are in Seshampettai for 5 or 6 years; that he does not know, who were all born along with the plaintiff; that at the time of adoption, the plaintiff was three months old; that at the time of adoption, no other child was there for her parents; that the adoption took place 40 years back; that he does not remember whether any letter was dropped at the time, when P.W.I was adopted; that Kuppusamy was well to do and by printing invitations, he held the ceremony of adoptions; that just prior to the commencement of the ceremony, he left the place; that the said ‘Senyasin’ is dead; that he was told that plaintiffs parents had some other children also and he would deny the suggestion that there was no adoption ceremony as alleged. 16. One Madurai Chetty would be examined as P.W.4 and this witness would depose that he is a native of Ramankoil village and he knew Kuppusamy Naicker, who was living in the third house from that of his; that the plaintiff is the adopted daughter of Kuppusamy Naicker and he knows about the adoption in person; that by installing ‘Kalasam’. 16. One Madurai Chetty would be examined as P.W.4 and this witness would depose that he is a native of Ramankoil village and he knew Kuppusamy Naicker, who was living in the third house from that of his; that the plaintiff is the adopted daughter of Kuppusamy Naicker and he knows about the adoption in person; that by installing ‘Kalasam’. inviting ten persons and litting the ‘Kamakshi light’, in the presence of Impada Samy Appasamy, Angammal gave P.W.I in adoption to Kuppusamy Naicker and Rajammal and Kupp usamy Naicker stated that since he was not having any issue, he was taking the girl in adoption; that he belongs to the same caste of the plaintiff and the defendants; that there is a custom of adopting a female among Hindus and he saw many Hindu females having been adopted; that at the time of adoption of the plaintiff, she was three months old and from that time onwards, she was brought in the house of Kuppusamy Naicker; that after the said adoption, the third wife of Kuppusamy gave birth to a female child; that it was Kuppusamy, who brought up the plaintiff, provided education to her and celebrated her marriage. 17. In the cross-examination, he would say that 40 or 45 years back, in the presence of 10 presence, the adoption ceremony took place and all the ceremonies were done by Angammal and she was one, who gave her daughter in adoption by performing the ceremony and the said ceremony would have lasted for half-an-hour; that the plaintiff was bron at Madras; that he does not know what transpired between Kuppusamy Naicker and Angammal at Madras, but in his presence, Kuppusamy Naicker stated that he was going to Madras to adopt the daughter of Angammal; that Kuppusamy Naicker requested Angammal to give the plaintiff in adoption and Angammal and Narayana Swamy gave the plaintiff in adoption to Kuppusamy Naicker; that it was 10.00 a.m. at the time of adoption; that he is the maternal uncle of Angammal; that one Manivannan is the husband of plaintiff and he would deny a suggestion that Angammal made him depose before the Court. 18. 18. The last witness examined on behalf of the plaintiff is one Manivannan, who is none but the husband of the plaintiff and this witness would depose that he is residing at Ambathur and previously he was at Pitchatur and prior to that at Ramankoil; that Kuppusamy Naicker was his father-in-law and the plaintiff is the adopted daughter of Kuppusamy; that he got married with the plaintiff in the year 1964; that from the time of their marriage, he was staying in the house of Kuppusamy Naicker at Ramankoil; that Kuppusamy Naicker wrote a letter to him on 9.4.1970 in Ex. A.14 and that it is false to allege that plaintiff is not the adopted daughter of Kuppusamy Naicker but only a fostered one; that during his lifetime, Kuppusamy Naicker was doing cultivation and he used to join hands with him; that after his marriage, since the defendants 1 and 2 were residing at Chintadripet, Madras, he continued his family at Ramankoil along with Kuppusamy Naicker; that on account of some differences with the defendants 1 and 2 in 1973, they left for Pitchatur. 19. In the crossexamination, this witness would depose that prior to his marriage, he did not know about Kuppusamy Naicker and only after Kuppusamy Naicker telling him that P.W.I was his daugther, he went to see the bride and then only he came to know that she was adopted daughter to Kuppusamy Naicker. He would deny the suggestion that in order to get the property, they have registered a false case. 20. On the part of the defendants, the sole witness examined is the second defendant-Lalitha. He would deny the suggestion that in order to get the property, they have registered a false case. 20. On the part of the defendants, the sole witness examined is the second defendant-Lalitha. She would depose that she is the daughter of the Kuppusamy Naicker through his third wife; that the first defendant is her fathers second wife and she would be aged about 82 years and she could not walk nor see nor hear nor even answer the questions; that her father Kuppusamy died in the year 1970 and that she is aged about 38 years; that the plaintiffs parents are Angammal and Narayanaswamy and it is false to allege that the plaintiff was the adopted daughter of her father and she was adopted by her father, when she was three months old; that it is not correct to say that she is adopted daughter of her father and she got right in her fathers property that excepting herself and the first defendant none else has any right in the suit properties; that Narayanaswamy is jobless; that he would advice others, but he would not take care of his family; that his wife and children were in a bad condition and Angammal was not keeping good health; that they came to their house, when she was 7 or 8 years old and at that time, plaintiff would have been 13 or 14 years old and from that time onwards, they were staying in her house; that the plaintiff and her other sisters were serving as house servants and then they left Ramankoil; that since Angammal and her children started stealing paddy from the field, they sent them out of home; that it is false to say that Kuppusamy Naicker did ‘Kannika Danam’ for the plaintiff at the time of her marriage and that her father got money by pledging his property for celebrating the marriage of the plaintiff; that it is further false to say that the plaintiff cleared the debts and handed over the original document with her; that it is further false to say that it was Kuppusamy Naicker, who printed the cards for the puberty ceremoney of the plaintiff nor for her marriage. She would further state that it is false to say that in the school records of the plaintiff, Kuppusamy Naickers name was mentioned against the column ‘fathers name and it was Kuppusamy Naicker, who got wrote the horoscope for the plaintiff. She would further deny the allegation that the plaintiff is in possession of Ac.0.50 cents of the land. 21. In the cross-examination, this witness would depose that the first defendant is alive, but she cannot hear and would murmur herself and cannot understand what others say and the first defendant is in the said condition for the last 4 or 5 months; that the first defendant is the second wife of her father; that prior to her birth, what had happened in the family would be known only by the first defendant; that after the death of her father in 1971, from 1972 onwards, they lived at Chintadripet, Madras and used to go to the village from there; that the plaintiff and her husband remained at Ramankoil, after the death of her father, permanently; that prior to that they were not permanently residing there and they would come and go. She would deny the suggestion that in spite of the first defendant being in good health, in order to avoid the truth in the box, she has not appeared as a witness. She further deposed that she does not know that the plaintiff has submitted the 5th standard certificate: that no horoscope was written for her and she does not know whether any such thing written for the plaintiff; that she does not know Ex. A.8-horoscope filed in the Court nor that of Ex. A.9-ration card; that she does not know that in Ex. A.3, the name of Kuppusamy Naicker has been mentioned as the father of plaintiff and their residence is mentioned as Ramankoil; that she does not know anything about Ex. A.8-horoscope filed in the Court nor that of Ex. A.9-ration card; that she does not know that in Ex. A.3, the name of Kuppusamy Naicker has been mentioned as the father of plaintiff and their residence is mentioned as Ramankoil; that she does not know anything about Ex. A.6 also, but it is mentioned therein as the elder daughter and she does not know about the marriage of the plaintiff having been held at Ramankoil; that she does not know that it is printed in the wedding invitation as elder daughter; that they used to give the accommodation facility to the people in the village for marriage, likewise, they have given it for the plaintiff also; that she was born in the year 1954 and she was 12 years old, when the plaintiff got married; that since the plaintiffs mother was ill, taking treatment with a local physician, they were staying in their house for quite some time, when she was eight years old; that she does not know whether her father pledged the house for the marriage of the plaintiff and whether the plaintiff cleared the debts and handed over the original document with the first defendant; that prior to her marriage, the plaintiff issued a notice, seeking partition, for which they gave the reply; that the second notice was also served, when they have sold some other lands; that they did not inform the buyers about the notice issued by the plaintiff, but she would admit that with the financial assistance of Kuppusamy Naicker, the plaintiff got married, but she would deny the extent of financial assistance; that the marriage of plaintiff was held only in their house and Kuppusamy Naicker and Rajammal did not sit as parents of the plaintiff in the marriage: that after her father, it was her mother, who was managing the whole show: that the plaintiff and her husband were staying in their house after the death of their father; that she knows that her father gave money to the plaintiffs parents, but she was not present at that time and only her mother informed about the same to her; that they sold the lands only after the issue of the first notice: that she does not know as to what was the price of sale of the lands and that only those, who purchased are cultivating those lands, which are worth Rs. 2.00,000/-. She would deny the suggestion that the plaintiff is entitled to 1/3rd share and also about the adoption of plaintiff by Kuppusamy Naicker and Rajammal. 22. During arguments, the learned counsel appearing for the appellant/plaintiff would contend that the suit in O.S. No. 11 of 1984 filed before the trial Court against the defendants was for partition and separate possession of her half share from the suit properties; that the specific case of the appellant/plaintiff before the trial Court was that she got adopted by Kuppusamy Naicker in the year 1946, when she was three months old baby; that Kuppusamy Naicker had three wives namely, Neelammal, Rajammal and Guravammal @ Gunabhushanammal respectively and all the three wives were issueless; as a result of which, the said Kuppusamy Naicker adopted the appellant/plaintiff; that the appellant/plaintiff is none but the sisters daughter of the second wife of Kuppusamy Naicker by name Rajammal-the first defendant and the names of natural parents of the plaintiff are Angammal and Narayanaswamy: that the natural parents of the plaintiff took their child to Ramankoil-the native place of Kuppusamy Naicker in Tiruvallur Taluq and gave the appellant/plaintiff in adoption and that Kuppusamy Naicker and his wife Rajammal took the appellant in adoption and thus the ceremony of adoption, by giving and taking the child, took place in all its perpetuity. 23. The learned counsel appearing for the appellant would further argue that the parties for adoption are all “Sudras” and that their custom permitted them to adopt female child; that after the adoption, the natural parents left the child with the adoptive parents and left the place and the child grew up at the residence of Kuppusamy Naicker as his adopted child from then onwards; that the child was admitted in the School by Kuppusamy Naicker, offering his name as father as seen under Ex. A.3 and plaintiff completed her 5th standard in the year 1958 in C.S.I. Junior Basic School; that thereafter the plaintiff attained puberty and Kuppusamy Naicker celebrated the occasion printing the invitation cards as seen under Ex. A.4 and distributing the same, fixing the ceremony on 11.09.1958 and the said Kuppusamy Naicker termed the appellant/plaintiff as his daughter in the said invitation cards; that then, just before marriage, betrothal ceremony for the appellant was held on 1.6.1964 as seen from Ex. A.4 and distributing the same, fixing the ceremony on 11.09.1958 and the said Kuppusamy Naicker termed the appellant/plaintiff as his daughter in the said invitation cards; that then, just before marriage, betrothal ceremony for the appellant was held on 1.6.1964 as seen from Ex. A.5; that it was Kuppusamy Naicker, who conducted the marriage of the appellant with P.W.5 on 22.6.1964 and the wedding invitation concerned is Ex. A.7, whereunder, Kuppusamy Naicker termed the appellant/plaintiff as his elder daughter, since after 8 years of the adoption of the appellant/plaintiff i.e. in the year 1954 Kuppusamy Naicker had a daughter born through his third wife, who is none else than the second defendant and the sole witness for the defence-D.W.1; that Ex. A.8 is the horoscope for the appellant ; that Ex. A.9 is the ration card; that Ex. A.10 is the invitation for “Sri Droupadi Amman Brahmotsavam”; that Ex. A.11 is the notice issued to the first defendant and two others by the appellant through her counsel and Ex. A.12 is the reply by the first defendant; that Ex. A.13 is the mortgage deed dated 18.2.1964, executed by Kuppusamy Naicker in favour of Hindu Saswatha Nidhi, Mylapore for getting a loan for Rs. 5,000/-, the reason said to be for conducting the marriage of the appellant and Ex. A.14- letter dated 9.4.70 is written by Kuppusamy Naicker to the appellants husband; that Ex. A.15 is the horoscope of the second defendant; that Ex. A.16 is the first page of the account book and Ex. A.17 is the accounts maintained by Kuppusamy Naicker for the expenses involved on the marriage of plaintiff; that Exs. A.1 and A.2 are the notices issued by the plaintiff and the reply sent by the defendant respectively dated 5.3.1983 and 24.3.1983. 24. The learned counsel appearing for the appellant would further argue that the adoption is an ancient one that is prevalent in the community and would cite the judgment of the Supreme Court reported in L. Debi Prasad (dead) by L.R.S. v. Smt. Tribeni Devi and others (A.I.R. 1970 S.C. 1286 = 84 L.W. 24 SN) wherein it has been held that : “. For a valid adoption all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption and that the boy shall be handed over and taken for this purpose.” “But although the person who pleads that he had been adopted is bound to prove his title as adopted son, as a fact yet from the long period (nearly 54 years in this case) during which he had been received as an adopted son every allowance for the absence of evidence to prove such fact is to be favourably entertained.” “‘In the case of an ancient adoption evidence showing that the boy was treated by relations, including the person who later On challenges the same, for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming.” It is also held in the same case that “Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible, if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof.” “As mentioned earlier, Shyam Behari Lal has not been able to substantiate the custom pleaded by him; nor has he adduced any direct evidence relating to the factum of adoption. His case entirely rests upon the documentary evidence that he has produced to show that he had been consistently and continuously treated as the son of Gopal Das, by Gopal Das himself, during his life time and by all his friends and relations including Debi Prasad”. Citing the above judgment, the learned counsel for the appellant would further argue that he relies on Exs. A.3 to A. 17 and these documentary evidences, coupled with the unshakable oral evidence adduced by P.Ws.1 to 5 would very strongly prove the adoption of the appellant by Kuppusamy Naicker in the year 1946. The learned counsel would further argue that the lower Court simply relied on the judgments of the Supreme Court reported in Kishori Lal v. MT. A.3 to A. 17 and these documentary evidences, coupled with the unshakable oral evidence adduced by P.Ws.1 to 5 would very strongly prove the adoption of the appellant by Kuppusamy Naicker in the year 1946. The learned counsel would further argue that the lower Court simply relied on the judgments of the Supreme Court reported in Kishori Lal v. MT. Chaltibai (A.I.R. 1959 S.C. 504) and A. Raghavamma and another v. A. Chen-chamma and another (A.I.R. 1964 S.C. 136) and would contend that in the above two judgments, it is pointed out that adoption should be strictly proved and the adoption of the appellant has been proved, in this case with overwhelming oral and documentary evidence; that for 46 years, the appellant had been treated as the adopted daughter without any controversy and the chain of events that took place, as evidenced by the oral and documentary evidence, proved without any iota of doubt that right from the childhood, i.e. from the date of her adoption in the year 1946, the appellant has been living only as the daughter of Kuppusamy Naicker and not otherwise. The learned counsel for the appellant would cite the judgment reported in Madhusudan Das v. Smt. Narayanani Bai and others (A.I.R. 1983 S.C. 114 = 95 L.W. 144 S N.), wherein it has been held that: “It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. A. Raghavamma v. A. Chenchamma , A.I.R. 1964 SC 136. It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth. Kishori Lal v. Chaltibai (1959) Supp. 1 SCR 698: ( AIR 1959 SC 504 ). Nonetheless the fact of adoption must be proved in the same way as any other fact.” Citing the above judgment, the learned counsel would point out that to the standard of proof prescribed by the Apex Court, the case of the appellant has been firmly established. 1 SCR 698: ( AIR 1959 SC 504 ). Nonetheless the fact of adoption must be proved in the same way as any other fact.” Citing the above judgment, the learned counsel would point out that to the standard of proof prescribed by the Apex Court, the case of the appellant has been firmly established. He would further place reliance on the judgment of this Court reported in V.M. Ramakrishna Mudaliar and another v. Smt. Nagammal Alias Nagabushanammal (1995) II M.L.J. 613), wherein it has been held that “In civil cases, we are concerned only about the probabilities of the case and the decision has to be arrived at on the preponderance of probabilities. When a person declares that a girl is his daughter, brings her up as his daughter, declares before Authorities that she is his daughter and gives her in marriage, there is nothing wrong in assuming that they have adopted that girl as their daughter. Along with this evidence, we have the evidence of P.W.I also. She says that she has been brought up from her-childhood only by the first plaintiff and his wife, and that she was treated as their daughter, There is no evidence contra. In that view of the matter, Issue No. 4 has to be found in favour of the plaintiffs.” Citing the above judgment, the learned counsel for the appellant would exhort that it is a case, which is factually quite similar to the case in hand. 25. The learned counsel would further argue that on the part of otherside there is no shred of evidence against the appellant at all: that the first defendant does not choose to get into the box, but files the written statement only; that the second defendant daughter of the third wife of Kuppusamy Naicker is the sole witness examined on the part of the defendants and she would say something, without producing any documentary evidence in support of her claim and on the part of the first defendant, in order to avoid embarassment, she has not entered into the witness box. The learned counsel for the appellant would end up his argument ultimately saying that even after the advent of the Hindu Adoption and Maintenance Act, 1956, she continued to be treated as the adoptive daughter, thus giving effect to the adoption done according the ancient customs and practice in their circle. 26. The learned counsel for the appellant would end up his argument ultimately saying that even after the advent of the Hindu Adoption and Maintenance Act, 1956, she continued to be treated as the adoptive daughter, thus giving effect to the adoption done according the ancient customs and practice in their circle. 26. In reply, the learned Senior Counsel Mr. S.V. Jayaram, appearing for the respondent would ‘contend that if it is the case of the appellant that as per the custom, she got adopted, the effect of adoption should be established and would further say that for the judgments cited by the other side reported in A.I.R. 1970 S.C. 1286=84 L.W. 24 S.N. and (1995) II M.L.J. 613, the answers, respectively are that there is no prohibition for adoption and to invalidate adoption certain norms are prescribed, but so f ar as the evidenciary value of the whole affair is concerned, the factum of adoption have not been established; that the ingredients that are necessary and essential to validate an adoption have not been established and therefore there is, on merit, no case for the appellant and the adoption done is illegal under the Hindu Law; that unless the appellant satisfies that according to the custom, there is no bar for a daughter to be adopted by Hindus, she has no case; that a total prohibition is there under the Hindu Law and the celebrations and the other rituals followed are not going to validate an illegal adoption, since there is prohibition for adoption of a female under the Hindu Law. However, under the customary Hindu Law, they recognise the adoption of dancing girls, provided, they do not adopt the profession of prostitution and no one else could be adopted. 27. The learned senior counsel appearing for the respondent would further contend that the judicial pronouncements are also to the effect that adoption of a female is contrary and unknown to Hindu Law; that to establish a custom regarding antiquity, continuity etc., the custom of adopting the daughter is exception to the rule in Hindu Law and the exception is to be pleaded and proved; that even assuming the same lenience to be shown on the question, it has to be pleaded, proved and established; that in the instant case, the custom has not been pleaded, proved and established; what is actually the case of the appellant under Ex. A.11 notice dated 1.10.1974 issued through her lawyer is regarding the factum of adoption and there is no plea of custom nor was it set up on the face of the notice; that Ex. A.12-reply notice is a mere denial, the pre-Act custom that existed prior to 1974, which was forbidden by Law and has to get over a particular thing i.e. the custom has to be established and under Ex. A.ll, there is no reference to the pre-act prevailing custom at the earliest point of time in 1974; that in Ex. A.1, dated 5.3.1983 also, there is no mention about the custom that prevailed; that what is meant by custom was according to the rituals; that even after nine years of the issue of the first notice, there is no reference to the custom that prevailed in the society; that the custom was first introduced in the plaint; that there is no custom validating the adoption of a female among Hindus and hence the said adoption is denied in Hindu Law and would cite Para 480 of Mullas Hindu Law; that under Shastric Hindu Law, male alone could be adopted; that para 236 of Maynes Hindu Law & Usage deals with adoption of daughters and the same view has been given by another author Mr. N.R. Raghavachariar in his Hindu Law, under Section 133 at Page No. 119 and would cite para No. 180 of the Hindu Law & Usage by Maynes; that according to Maynes Hindu Law and Usage, not even it could be pleaded with reference to custom as to what is there to be pleaded and established and would cite para No. 36 at page No. 49 of the Maynes Hindu Law & Usage. The learned senior counsel would also cite Para No. 16 at Page No. 14 of the Hindu Law by N.R. Raghavachariar regarding proof of custom, wherein it is stated that “the expression “custom” and “usage” signify and rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. Provided that the rule is certain and not unreasonable or opposed to the public policy; and provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.” It is further remarked therein that custom is the most important source of Hindu law under whose system clear proof of usage will outweigh the ancient text. Regarding the nature and quantum of proof of custom, the Madras High Court in Gopalayyan v. Raghupatiayyan (7 M.H.C.R. 250) has enunciated the propositions viz. (1) the evidence should be such as to prove the uniformity and continuity of the usage and the conviction of those following it that they were acting in accordance with the law and this conviction must be inferred from the evidence, (2) evidence of the acts of the kind, acquiescence in those acts; decisions of Courts, or even if Panchayats, upholding such acts; statements of experienced and competent persons of their belief that such acts were legal and valid, will all be admissible; but it is obvious that although admissible evidence of this latter kind will be of little weight if unsupported by actual examples of the usage asserted.” It is further relevant to note from the same book that there are three kinds of customs, which are recognised by the Courts, they are (1) local custom, (2) class custom and (3) family custom. 28. Regarding the onus of proof, the initial onus lies on the person pleading a special custom to prove it ( Harthar Prasad Singh v. Balmiki Prasad Singh A.I.R. 1975 S.C. 733). Regarding the duty of the Court, it is said therein that if there is a clear usage to the contrary, the Sastras have to yield and in case of conflict between the Sastras, the Judge should consult the practice prevailing among the people, while deciding a case Shyam Sundar Singh v. State of Bihar A.I.R. 1981 SC 178) Besides, if the custom is a barbarous one, it must be rejected as repugnant to natural justice, equity and good conscience and cannot be given effect to in milder form, unless in that milder form it is recognised by the community as regulating the relations of its members Inter se. (Eshugbayi Ebko v. Government of Nigeria . (Eshugbayi Ebko v. Government of Nigeria . 61 M.L.J. 975: 1931 P.C. 248: 1931 M.W.N. 683: 34 L.W. 607) Courts which within strict limits have to essay social engineering are not the sanctuary of age old but unwholesome customs, even if they are not the refuge of social reformers. At this juncture the learned senior counsel would cite a judgment reported in Kaliamma v. Janardhanan Pillai and others ( 1973 (3) S.C.R. 503 : A.I.R. 1973 S.C. 1134), wherein it has been held that: “A custom which has been recognised and affirmed in a series of decisions each of which was based on evidence adduced in the particular case may become incorporated in the general law and proof of it then becomes unnecessary under S. 57(1) of the Evidence “Act.” It is further held therein that “While it is true that the community is a very small community found in a small local area and cases reaching courts may not be many, the court cannot, on that ground, ignore the well established principle before a custom can be held as having been proved on the basis of earlier decisions. Those decisions should have been based on evidence adduced in those cases. But in the present case, neither of the two decisions which refer to the special kind of patnibhagam pleaded by the appellant was based on the evidence in the case.” 29. The learned senior counsel would further cite a judgment reported in Harihar Prasad Singh and others v. Bahniki Prasad Singh and others (A.I.R. 1975 S.C. 733). wherein it has been held that “In the first instance it is for the plaintiffs to prove the existence of the custom and if they fail to do so, they cannot succeed on the basis that the defendants did not succeed in proving that the custom did not exist.” It is further held therein that “The specific family custom pleaded in a particular case should be proved.” The initial onus lies on the plaintiffs to prove the special custom. It must be proved that the custom has been acted upon in practice for such a long period and with such invariability, as to show that it has, by common consent been submitted to as the established governing rule of the particular family.” 30. It must be proved that the custom has been acted upon in practice for such a long period and with such invariability, as to show that it has, by common consent been submitted to as the established governing rule of the particular family.” 30. Continuing to argue, the learned counsel would further submit that the factum of adoption, on facts, in the instant case, has not been established; that even assuming for the sake of argument that they succeeded in establishing the factum of adoption, the adoption of a female under Hindu Law is unlawful and prohibited prior to the advent of the Hindu Adoptions and Maintenance Act. 1956, whereby they can succeed by pleading custom; that the Law is settled in respect of adoption of a female to the effect that it was invalid; that not a single instance was shown till 1998 in judicial pronouncement upholding or validating the adoption of a female prior to 1956 that is one of the reasons as to why the other side is trying to validate it by custom; that the point that is to be determined is, whether such a custom has been spelt out, proved and established; that in spite of having issued two notices, there was no mention of any such custom that was prevalent; that there was no whisper of any custom and how it got to be proved and established and the essentials of the valid custom etc. 31. 31. The learned senior counsel appearing for the respondents would further point out that the other side relies upon a judgment of the S.C. reported in A.I.R. 1970 S.C. 1286 ( cited supra ) and would comment that a presumption can be raised regarding proof of adoption and would point out that it is not regarding the legality or validity of the adoption; that firstly the giving and taking in adoption and secondly the ceremonies of adoption have to be proved and would point out that the above judgment cited by the other side does not touch upon the question of custom and stands entirely on other points, therefore, this judgment in its essentials and ingredients is not applicable to the case in hand; that under Hindu Law, adoption of girls is prohibited and the other side has to fall on the question of custom and would cite a judgment reported in Mariammal v. Govindammal and others (A.I.R. 1985 Madras 5= (1984) 97 L.W. 490 , wherein it has been held that “When once a custom is pleaded, the said custom must be established by satisfactory evidence and this burden cannot be discharged by contending that the persons claiming the custom can be classified only as Shudras. Even if a rule of ancient Hindu Law is only recommendatory in nature, yet when once custom is pleaded against the said rule, it is but necessary in order to uphold the said custom, the said custom should be established by satisfactory evidence as prevalent in the community, for a long time without any interruption.” It is further contemplated therein that “Since the adoption in the instant case took place before enforcement of Hindu Adoptions and Maintenance Act, 1956, that Act could not be applied.” The learned counsel would further contend that the above remarks have been offered by the Apex Court, regarding the adoption of a daughters son, which had been prohibited by a Hindu Law and the same is the case of adoption of a female. The learned senior counsel would end up his argument summing up as follows: i) custom not pleaded; ii) daughter cannot be adopted: iii) not a single instance of a Hindu girl being adopted; The learned counsel appearing for the appellant would end up his argument, in clarification of ambiguities stating that not a single word has been uttered by the other side or in any authority that a Hindu girl could not be adopted and as to why a girl could not be adopted. 32. In assessing the case in hand, on appeal, as it had been constructed before the trial Court by both the parties and having regard to the evidence placed on record by respective parties and the decision arrived at by the trial Court and upon hearing the learned counsel for both and in consideration of the grounds of appeal, the fact remains that it is a suit for partition and separate possession of the plaintiffs half share in the suit properties, for recovery of share of profits from the date of suit and for costs. Though it is a suit for partition by the appellant/plaintiff, since the very locus-standi on the part of the plaintiff has been questioned by the other side, so as to claim partition of the suit properties and separate possession of her half share, attention is drawn towards plaintiffs locus-standi and right to claim partition of the suit properties, though there is no doubt or dispute among the parties to the fact that all the suit properties were the self acquired properties of late Kuppusamy Naicker. 33. The case of the plaintiff is that she was the adopted daughter of Kuppusamy Naicker; that when she was three months old, Kuppusamy Naicker adopted her, since in spite of having married three time, he did not have an issue, and fully and entirely following the family custom and rituals; that from the time of her adoption in the year 1946, in which she was born, she was not only brought up by Kuppusamy Naicker at his residence at Ramankoil in Tiruvallur Taluk but also sent her to School, treating her as his own daughter, as evidenced by Ex. A.3; that when she attained puberty, by printing invitations, he celebrated the occasion, as evidenced by Ex. A.3; that when she attained puberty, by printing invitations, he celebrated the occasion, as evidenced by Ex. A.4 and at the time of her marriage, for both the betrothal and for marriage, Kuppusamy Naicker had only arranged for everything as her father, apart from printing the invitation cards for those ceremonies in his own name, as her father, as evidenced by Exs. A.5 to A.7; that it was Kuppusamy Naicker, who was responsible for conducting the entire marriage inc luding performing the ‘Kannikadanam’ at his own residence, that too borrowing an amount of Rs. 5,000/- from a financial institution by pledging a house belonging to him at Chintadripet, Madras, thus creating a mortgage deed in favour of the financial institution, as evidenced by Ex. A.13; that later herself and her husband continued to live in the same house, even after the death of Kuppusamy Naicker in the year 1970 and it was she, who cleared the said mortgage debt; that the second defendant was born to the third wife of Kuppusamy Naicker, seven or eight years after her adoption by the said Kuppusamy Naicker and hence she claims that she is entitled to half share of the suit properties. 34. On the contrary, it is not only that the very adoption of the plaintiff by the said Kuppusamy Naicker is denied on the part of the defendants, but they would not also agree with the other pleadings to the effect that the plaintiff had been brought up and given in marriage by the said Kuppusamy Naicker. Their version is that when the second defendant was 7 or 8 years old and the plaintiff was 13 or 14 years of age, the plaintiff, her mother and other members of her family came to Ramankoil, seeking the help of Kuppusamy Naicker, since the plaintiffs mother was seriously ill and was suffering from lack of financial assistance and hence stayed there for a short while at the residence of Kuppusamy Naicker and that even after her marriage, the plaintiff and her husband were taken only as farm servants and since they exhibited doubtful integrity, they were sent out of home. Thus, the defendants, denying the adoption of the plaintiff by the Kuppusamy Naicker or performing her marriage after bringing her up, would plead that she is not entitled to any share of the suit properties. 35. Thus, the defendants, denying the adoption of the plaintiff by the Kuppusamy Naicker or performing her marriage after bringing her up, would plead that she is not entitled to any share of the suit properties. 35. In the above circumstances, if the question of relief as sought for by the plaintiff in the suit seeking partition of the suit properties into two equal shares and allotting one such divided half share in her favour is to be decided fundamentally the questions whether the alleged adoption of the plaintiff by Kuppusamy Naicker is true and valid and whether the family, local or caste customs prevailed, permitting such an adoption of a female prior to the advent of the Hindu Adoption and Maintenance Act, 1956, are to be determined, so as to validate such an alleged adoption of the plaintiff and hence the following points arise for determination in the above appeal: Whether the alleged adoption of the appellant/plaintiff by Kuppusamy Naicker in the year 1946 is true and proved in evidence? Whether the custom prevailed or permitted for the adoption of a female and whether the same is proved to the requirements of Law? Whether the lower Court is right in deciding that neither the adoption of the appellant/plaintiff nor the custom prevailed came to be proved in evidence? What relief, if any, the appellant is entitled to? Point No. I:— 36. Entering into the question of factum of adoption, said to have taken place in the year 1946, when the appellant/plaintiff was just a three month old baby, a very strong case has been put up on the part of the plaintiff before the lower Court, not only with proper pleadings, but also marking the authenticated documents in support of the pleadings, in the shape of Exs. A.1 to A. 17. Needless to point out that the plaintiff, besides entering into the box and getting herself examined as P.W.I, has also examined four witnesses, out of whom, two are independent witnesses (P.Ws. 3 and 4) and P.Ws.2 and 5 are the natural mother and husband of the plaintiff respectively. The natural mother of the plaintiff, as P.W.2 would give details of adoption. 3 and 4) and P.Ws.2 and 5 are the natural mother and husband of the plaintiff respectively. The natural mother of the plaintiff, as P.W.2 would give details of adoption. The plaintiff as P.W.I would not only narrate the story of her adoption by late Kuppusamy Naicker, when she was hardly a baby of three months old, as came to be known at a later stage, during or about her marriage, but also would speak about Kuppusamy Naicker admitting her in the local school and getting her educated sending her from his residence, as come to be established under Ex. A.3 dated 31.05.1958. She would further depose to the effect of her puberty ceremony conducted by her adoptive father late Kuppusamy Naicer, as seen under Ex. A.4, dated 1.9.1958 and also would speak about her betrothal with P.W.5 and the very marriage with him, as supported by Exs. A.5 to A.7, which would clearly prove to the effect that it was late Kuppusamy Naicker, who had conducted her betrothel and marriage as her father. She would further depose that late Kuppusamy Naicker also borrowed an amount of Rs. 5,000/- from a finance company as borne by Ex. A.13 dated 18.2.1964 besides writing the horoscope by engaging an Astrologer, as exhibited in Ex. A.8 and Ex. A.15. She would also speak to the effect of other connecting links and those documents, which have sprung up in their natural course, such as Exs. A.9 to A. 12, A. 14, A. 16 and A. 17 and the notice and reply notice under Exs. A.1 and A.2. 36. But, the learned senior counsel for the respondent would raise certain questions in his argument and would seek to know, whether the factum of adoption, as per the requirements of Law, has been pleaded, proved and established, such as the same standard of proof required for the existence of the custom in that family or community or locality. The learned senior counsel for the respondent would further require the ceremonies of adoption to be proved strictly for the adoption to be held valid and would doubt whether the plaintiff had proved either the factum of adoption or regarding the rituals and ceremonies, as warranted by the Hindu Code. 37. The learned senior counsel for the respondent would further require the ceremonies of adoption to be proved strictly for the adoption to be held valid and would doubt whether the plaintiff had proved either the factum of adoption or regarding the rituals and ceremonies, as warranted by the Hindu Code. 37. The Court below would also raise certain doubts in the light of the requirements of Law, as propounded by many judicial pronouncements to the effect of the conduct of the ceremonies regarding ‘Dattahomam’, giving and taking the child in adoption by the natural parents and the adoptive parents respectively and would create a doubt stating that the fact of Narayanaswamy and Angammal - natural parents of the plaintiff giving the plaintiff in adoption and that Kuppusamy Naicker and Guravammal taking the child in adoption was not proved and requirng such strict standard of proof to the norms fixed by it, would ultimately arrive at the conclusion that the factum of adoption was not strictly proved. 38. On the contrary, when looked into the evidence of not only P.W.I, but that of P.Ws.2 to 5, especially the evidence of independent witnesses P.Ws.3 and 4, it would be very clear in their evidence that they attended to the adoption ceremony of the plaintiff; that the adoption took place at the residence of Kuppusamy Naicker; that Narayanaswamy and Angammal brought the child there and by pouring sacred water and reciting certain ‘Mantras’ as required, Angammal handed over the child to Rajammal - Guuravamm al the second wife of the deceased Kuppusamy Naicker and all the surrounding circumstances are there to show that this ceremony had taken place in the presence of both Narayanaswamy and Kuppusamy Naicker and at the behest of late Kuppusamy Naicker. It is the admitted case on the part of the respondents that on the date of the alleged adoption of the plaintiff by Kuppusamy Naicker, he was issueless and that on the other hand, the plaintiffs natural parents had five female children, among whom, the plaintiff is the third in the row and there was no wonder in her natural parents coming forward to give one of their daughters-the third child-in a short period after her birth, in adoption to Kuppusamy Naicker and his wife, since they had the facilities to bring her and for the future processes. P.Ws.3 and 4 are sufficiently old and natives of the place of residence of Kuppusamy Naicker i.e., Ramankoil and there is every possibility for them to have attended to the adoption ceremony of the plaintiff. P.W.2 would narrate the whole ceremony of ‘Dattahomam’ and giving and taking of the child in adoption, in a flawless manner and so far as the evidence of P.W.I is concerned, it must be pointed out that the defence is not able to make any inroots. P.W.5, who is the husband of P.W.I, would give the picture about his marriage with the plaintiff, his coming to know of the fact of his wife being the adopted daughter of late Kupusamy Naicker just before the marriage and about their continuous residence, right from the date of their marriage, with Late Kuppusamy Naicker at Ramankoil, which continued for quite some time, even after the death of Kuppusamy Naicker regarding himself and P.W.I managing the whole properties and about their leaving the village Ramankoil on account of defferences with the first respondent and the deceased first defendant. In fact, to put in a nut shell, the evidence that comesforth from P.Ws. 1 to 5 is quite natural and acceptable. 39. As against the direct and positive evidence - very strongly adduced by P.Ws. 1 to 5 and well supported by Exs. A.1 to A. 14 -what is the evidence adduced by the respondents is also to be discussed. It is only D.W.1, the first respondent, who examined herself as the sole witness on her side and none else, much less the deceased first defendant, who was then alive, was examined. If the first defendant had been examined, she could have given valuable information regarding either the factum of adoption or non-adoption and regarding the taking up of the residence by the plaintiff at the residence of Kuppusamy Naicker at Ramankoil right from her childhood, which comes to be proved fully and entirely and without leaving any place to entertain any doubt. It should be pointed out here that D.W.1 herself had deposed that P.W.I came to their village, when the plaintiff was 13 or 14 years old, along with her mother, seeking help from her father and after marriage, plaintiff and her husband served as farm servants; that her father did not borrow the amount for the marriage of P.W.I; that since the plaintiff and her husband committed theft to the produce they were sent out of home etc. But, the evidence of D.W.I is not only unfounded and also unsupported by any documents or any other material evidence, but also ultimately stands disproved in the light of the evidence available in abundance on the other side. Not a single part of the evidence positively adduced on the side of the plaintiff comes to be disproved by the evidence of the defendant. There is not even a corroborative evidence or a single piece of documentary evidence available on her side in support of what she had adduced and ultimately the evidence of D.W.I has to be brushed aside as unfounded and not proved. 40. At this juncture, it is relevant to point out that in V.M. Ramakrishna Mudaliar and another v. Smt. Nagammal Alias Nagabusha-nammal (1995) II M.L.J. 613) it has been held that: “In civil cases, we are concerned only about the probabilities of the case and the decision has to be arrived at on the preponderance of probabilities. When a person declares that a girl is his daughter, brings her up as his daughter, declares before Authorities that she is his daughter and gives her in marriage, there is nothing wrong in assuming that they have adopted that girl is their daughter.” In L. Debi Prased (dead) by L.Rs. v. Smt. Tribeni Devi and others (A.I.R. 1970 S.C. 1286=84 L.W. 24 S.N.), it has been held that “In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well.” 41. Hence if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well.” 41. It is the preponderance of probability that decides the civil cases as per the civil jurisprudence and while such voluminous, abundant and reliable evidence is available, establishing the case of the appellant/plaintiff regarding her adoption by the deceased Kuppusamy Naicker and his wife-the deceased first defendant and the other chain of events that followed pertaining to her being brought up, keeping her at his residence and admitting her in the school, conducting her puberty ceremony, betrothal, the very marriage itself by inviting guests and well-wishers and retaining not only the appellant but also her husband at his own residence, till his death, have come to be proved without the least or iota of doubt and hence it has to be held that the appellant/plaintiff in no uncertain terms has proved the factum of adoption to the known sources and requirements of Law, thus deciding Point No. 1 in favour of the appellant/plaintiff and against the respondents. Point No. 2:— 42. Coming to this point, in the very like manner he required proof for the factum of adoption, the learned senior counsel for the respondents would require such pleading, proof and establishment for the existence and prevalence of the custom in adopting the female child in the Hindu religion. The argument of the learned senior counsel for the respondents is that there was a prohibition in Hindu Law for adopting a female child and that prohibition had been lifted only by the legislation i.e. by the Hindu Adoptions and Maintenance Act, 1956. The argument of the learned senior counsel for the respondents is that there was a prohibition in Hindu Law for adopting a female child and that prohibition had been lifted only by the legislation i.e. by the Hindu Adoptions and Maintenance Act, 1956. But, at the same time, the learned senior counsel for the respondents would admit that for the general rule, there were certain exceptions and the Hindu religion permitted a girl to be adopted, provided there was a custom prevalent in the family or caste or locality and that prevailing custom as a tradition in adopting the female child should be pleaded, proved and established and the onus of proof is heavily on the appellant/plaintiff and at this score, the appellant has miserably failed and hence her case, even in the event of the factum of adoption comes to be proved, since there was no custom in vogue nor the same proved, such adoption, not being permitted by Law, is invalied. 43. Against this, on the part of the appellant, her counsel would argue that it is an ancient form of adoption; that parties to the adoption are ‘Sudras’ that among classes or classifications of the ancient Hindu Law, it is not only that there were rituals prescribed for Hindus in general, which are mainly applicable for the other three classes, were not strictly applied for ‘Sudras’ but the ‘Sudras’ had their own custom of adopting the female children; that parties being ‘Sudras’, unless there had existed a custom of adopting girls, Kuppusamy Naicker would not have ventured to adopt the girl, nor could he have been permitted by his community men to do so and hence only following traditions and caste customs and with the tacid approval of the entire community, the adoption of the plaintiff had taken place without the least resistence from any quarter at any point of time and hence no such strict standard of proof need be necessarily imposed on the plaintiff for the custom in vogue in their community. 44. But, the learned senior counsel appearing for the respondents would cite many instances from Hindu Law by various authors. 44. But, the learned senior counsel appearing for the respondents would cite many instances from Hindu Law by various authors. In para No. 149 of the Maynes Hindu Law and Usage, it is stated that “the Dattaka Mimamsa quotes a text that a man should adopt a son for the sake of the funeral cake, water and solemn rites and for the celebrity of his name. The author of the Dattaka Chandrika admits that even where there was no spiritual necessity, a son may and ought to be adopted for the celebration of name and the due perpetuation of lineage.” It is glaring therein that “in fact, the earliest instances of adoption found in the Hindu legend are of daughters . The theswaleme shows that such adoptions were practised among the Tamil races of Southern India. In Jaffna, the Tamil people adopt both boys and girls and so little is there any idea of a new birth into the family, that the adopted son can marry a natural born daughter of the adopting parents; and where both a boy and a girl are adopted, they can inter-marry. The secular character of the transaction is even more forcibly shown by the circumstance that the person, who makes the adoption must obtain the consent of his heirs. If they withhold it, their rights of inheritance will be unaffected.” It is further pointed out therein that “among the tribes, who have not come under Brahmanical influence, we find that adoption is equally practised, but without any of the rules which spring from the religious fiction. As a matter of fact, they always did adopt; but were expressly freed from the restrictions which fettered the higher classes.” 45. As per Para No. 487 of Mullas Hindu Law, adoption of dauthers by naikins (dancing girls), which had been carried on as a custom, had been held invalid according to Bombay and Calcutta decisions, since such custom being regarded as immoral. But, according to Madras decision, it is valid, provided the adoption is not made with the object of disposing of the girl for the purpose of prostitution. Even two girls may be adopted provided the practice is sanctioned by custom as held in Gangamma v. Kuppummal ((1938) Mad. 789=48 L.W. 919). But, according to Madras decision, it is valid, provided the adoption is not made with the object of disposing of the girl for the purpose of prostitution. Even two girls may be adopted provided the practice is sanctioned by custom as held in Gangamma v. Kuppummal ((1938) Mad. 789=48 L.W. 919). In Para No. 488 of Mullas Hindu Law, it is glaringly seen that no religious ceremonies, not even Datta Homam are necessary in the case of Shudras (Shoshinath V. Krishnosunderi (1881) 6 Cal 381: lndromoni v. Beharilal (1880) 5 Cal. 770: Bal Gangadhar Tilak v. Srinivas (1915) 42 LA. 135). Nor are religious ceremonies necessary amongst Jains or in the Punjab.” 46. It is further stated in Maynes Hindu Law under the heading ‘Adoption of dauthers’ that in a Muhammadan case (Ghasito v. Umrao Jan (1894) 20IA 193: 21 Cal. 149), the Privy Council upheld the view that the custom of adoption of daughters by a prostitute class or family aims at the continuance of prostitution as a family business and that it has a distinctly immoral tendency and should not be enforced in Courts of Justice. These observations will apply equally to the custom of adoption of daughters amongst Hindu dancing girls. In Madras, however, a distinction has been sought to be made between an adoption made with the intention of training a girl for the purpose of prostitution and one made with a different intention; and the custom, amongst the dancing girls, of adoption has so far been recognised as to make the adoption of daughter valid, where it is not for the purposes of prostitution.” 47. It is further seen in Para No. 189 of Maynes Hindu Law and Usage under the heading ‘Rules not universal to Sudras’ that the restrictive rule applies to the three higher castes but not the Sudras. The latter may adopt a daughters or sisters son. According to the Mayukha, they are the most proper to be adopted. A mothers sisters son may also be adopted among Sudaras ( Chinna Nagayya v. Pedda Nagayya (1878) 1 Mad. 62). In the Punjab, such adoption are common among the Jats, and this laxity has spread even to Brahmans and to the orthodox Hindu inhabitants of towns, such as Delhi and to the Borach Brahmans in the United Provinces. They are also permitted among the Jains. 62). In the Punjab, such adoption are common among the Jats, and this laxity has spread even to Brahmans and to the orthodox Hindu inhabitants of towns, such as Delhi and to the Borach Brahmans in the United Provinces. They are also permitted among the Jains. In Southern India, even among the Brahmans, including Nambudri Brahmans of Malabar such adoptions are undoubtedly common and are valid by custom.” 48. It is further seen from Para No. 194 of the Maynes Hindu Law and Usage under the heading ‘No religious ceremonies for Sudras’ that it is now settled that amongst Sudras no dabta homans are necessary in addition to the giving and taking of the child in adoption ( Indramoni v. Behari Lal (1879) 7 IA 24). So also in the Punjab and among Jains, no ceremonial whatever is required, the transaction being regarded as a matter of civil contract though the formality of giving and taking is necessary. Among Agarwals in Berar the only essential ceremony is the tying of turban (Pagdi ceremony) ( Prasadsheonarayan Chokkani v. Damodar Ramkaran Vaishnao 1958 Bom. 79) 49. It is further seen from Para No. 236 of the Maynes Hindu Law under the heading ‘Adoption of daughters’ that Nandapandita in his Dattaka Mimamsa would construe ‘putra’ (or son) as including a daughter and he draws the inference that on failure of a daughter, a daughter of another could be adopted. He supports his conclusion by referring to ancient precedents, such as the adoption of Shanta, the daughter of King Dasaratha by King Lomapada and the adoption Of Pritha or Kunti, the daughter of Sura by Kunti Bhoja.” It is further seen under the heading ‘Among dancing girls’ that “but among dancing girls, it was cu stomary, in Madras and Pondicherry and in Western India, to adopt girls to follow their adoptive mothers profession and the girls so adopted succeeded to their property. No particular ceremonies were necessary, recognition alone being sufficient. The custom of adoption of a girl has to be proved by the party, who relies on the adoption ( Ganguli (Bn) v. Sarkar (ch) 1961 M.P.I73). In Calcutta and Bombay, however, such adoptions have been held illegal. But in Madras, an adoption of a daughter by a dancing girl, where it is not for the purpose of prostitution has been held to be valid by custom. In Calcutta and Bombay, however, such adoptions have been held illegal. But in Madras, an adoption of a daughter by a dancing girl, where it is not for the purpose of prostitution has been held to be valid by custom. ( Veeranna v. Sarasuratnam 1936) 71 MLJ 53=43 L.W. 755). In the case of death of the adopted girl, where there is no proof of any special custom of succession, the general rules of succession under Hindu Law would apply.” 50. From all the above instances of the ancient Hindu Law, it is clear that among the Madras and Jaffna Tamils, adoption of female children had been in vogue; that among the ‘Sudras’, no strict ceremonies need be necessary for adoption, lighting of Datta Homam or giving and taking the child in adoption; that if custom permits, freely a girl could be adopted; that among dancing girls, adoption of a girl is permitted, provided such adoption is not meant for practising prostitution. 51. From the judicial pronouncements cited on the part of the respondents, such as (1) Kaliamma v. Janardhanan Pillai and others ( 1973 (3) S.C.R. 503 : AIR 1973 S.C.I 134); (2) Harihar Prasad Singh and others v. Balmiki Prasad Singh and others (A.I.R. 1975 S.C. 733) and (3) Mariammal v. Govindammal and others (A.I.R. 1985 Madras 5= (1984) 97 L.W. 490 ), the first case cited above (A.I.R. 1973 S.C. 1134) is on the plea of special custom as to ‘Pathnibhagam’ based on earlier, decisions. There itself, it had been decided that the decisions not based on evidence adduced, could not be relied. ‘Pathnibhagam’ is the principle that on the death of the husband of a Krishnavakarar woman, in the absence of his children, was entitled to inherit her husbands properties. The facts of the above case have absolutely no relation to the case in hand and hence the principle endowed therein to suit the facts of that particular case is hereby held to be inapplicable to the case in hand. 52. The facts of the above case have absolutely no relation to the case in hand and hence the principle endowed therein to suit the facts of that particular case is hereby held to be inapplicable to the case in hand. 52. So far as the second case cited above (A.I.R. 1975 S.C. 733) is concerned, it is seen that it is a case of a Brahmin wanting to be held himself as the nearest reversioner to a deceased person and hence this citation cannot also hold good in the matter of adoption of a ‘girl’ by a ‘Sudra’ and hence the principles settled therein are not applicable to the case in hand. The third case cited above (AI.R. 1985 Madras 5) is regarding the alleged adoption of the daughters son and it has no relation or resemblance to the facts of the present case in hand and hence the principles settled therein also cannot be applied to the case in hand. 53. To sum up all the above discussions, what could be reasonably arrived at is that though the Hindu Law, prior to the advent of the Hindu Adoptions and Maintenance Act, 1956 did not expressly provide for adoption of a female, still, there had also been no specific prohibition for such adoption, as it is argued on the part of the respondents. The non-adoption of a female by a Hindu in general had not been held as a mandatory provision of Law, but only recommendatory. The same Law accepted the adoption of female, provided the custom permitted such adoption in the family, class or locality. Moreover, even the recommendatory provision of non-adoption in the case of a female does not seem to have been uniform and commonly prevalent in all the sections of the Hindu society. From the Hindu Code and from the various judicial pronouncements, such as those discussed above, it is quite evident that from the ancient times, when the whole of the Hindu community is said to have been divided into four major categories, what had been adopted as a rule by the Brahmins have not been adopted by the other three categories and what had been adopted by the first three categories have not been adopted by the last category-the Sudras. Therefore, it could be well arrived at that non-adoption of a female had been followed as a rule by the Brahmins and the two other categories falling next to Brahmins. But so far as the last category, the Sudras are concerned, there does not seem to have been the strict observance of even those recommendatory provisions relating to either the non-adoption of the female as a rule or even in the case of adoption in general the strict observance of the rituals or the customary rites that the other categories had adopted. 54. So far as the adoption in general and the female adoption in particular is concerned, since the Hindu society had been divided into four major sects, each of them had its own inner sects or divisions and it was not possible to impose those customs, traditions and rituals followed by one sect or subsect or inner sect. On the other hand these divisions had given way for different customs and rituals to be followed by each of such divisions to suit their own convenience and such customs, traditions and rituals had not been adopted by other categories, and hence they came to be treated as exceptions to the general rule. That is why, it is generally, more often falsely, argued that non-adoption of a female by the Hindus had been followed as a rule and adoption of a female as exception. Hence, it could be stated that generally adoption had been accepted and practised widely in the Hindu religion differing from place to place and community to community. Particularly, the female adoption seems to have been widely prevalent among the Sudras without any hindrence and it is not correct to amalgamate and bring all the sects under one umbrella viz. Hindus and attribute in a generalised manner that among Hindus non-adoption of the female was the rule and adoption an exception. Unless the rule is proved effectively and applicable for all, the exceptions cannot be extracted and consequently the conditions imposed on the exceptional cases cannot be enforced with strict standard of proof. 55. So far as the case in hand is concerned, there is no denial of the fact that both the parties are falling under the category of Sudras. Unless the rule is proved effectively and applicable for all, the exceptions cannot be extracted and consequently the conditions imposed on the exceptional cases cannot be enforced with strict standard of proof. 55. So far as the case in hand is concerned, there is no denial of the fact that both the parties are falling under the category of Sudras. Absolutely no evidence comes forth in proof to the effect that Sudras held non-adoption of a female as a rule, so as to bring some of them under the exempted category in the garb of custom. When the rule itself has not been defined properly it is not proper to impose such high standard of proof of the custom that had been practised by them in the family, class or locality. Since the Hindu religion had been divided into four major sects and innumerable minor ones, they do not seem to have followed a uniform code of conduct or ceremony in every aspect of life much less in adoption and there had been no compulsion on any of the groups to adopt the Code of Conduct or ceremony or ritual that had been followed by the other group. The Law has been very liberal and generous in not restraining any section of the Hindu society from following any form of Code of Conduct or ritual or ceremony and readily accepted such practices if it is followed in the family or class or locality. No stringent rules or regulations seem to have been imposed in such matters relating to the Family Laws, much less in adoption of a female by the Sudras. While such is the Kaleidogcopic” character, standard and prescription regarding the principles of adoption, no strict standard of proof of the custom of adopting the female practised a particular family or class or locality should be expected. Nor h ad there been any other cumbersbme procedure relating to ceremonies of adoption or the rituals prescribed in the case of adoption by Sudras and in proof of the ceremonies also no strict standard of proof could be expected. 56. Nor h ad there been any other cumbersbme procedure relating to ceremonies of adoption or the rituals prescribed in the case of adoption by Sudras and in proof of the ceremonies also no strict standard of proof could be expected. 56. The uniform case of the appellant/plaintiff is that the parties belong to the caste of ‘Sudras’ and it has been specifically pleaded in Para No. 3 of the plaint that “even before the second defendant was born, Kuppusamv Naicker and the first defendant adopted the plaintiff as their daughter, as per Hindu custom . The natural parents gave her in adoption to the said Kuppusamy, when she was just three months old and that she grew as their daughter in their house.” Here, not only the custom in vogue but also the giving of the plaintiff in adoption by her natural parents has been pleaded. Evidence is available in abundance to the effect of the ceremonies, such as ‘Dattahomam’, giving the child in adoption by the natural parents and ‘taking the child in adoption by the adoptive parents’, thus following all such an d other ceremonies as already discussed. There is also evidence to the effect that there is a custom being practised in the Hindu religion (meaning thereby the particular community) as seen from the evidence of P.W.4 emphasizing that their custom permitted them to adopt a female child and would ultimately say that he himself had witnessed the adoption ceremony of the plaintiff in the year 1946. All other witnesses examined on behalf of the appellant plaintiff would unequivocally speak to the effect of the adoption with positive evidence. Above all, even though there is a general denial in the written statement by the respondents for the adoption pleaded on the part of the appellant/plaintiff, there is no specific denial much less in an emphatic manner, either for the non existence of a custom or for the very adoption ceremony having taken place. At this juncture, I am prompted by the recent judgment of the Court reported in V.M. Ramakrishna Mudaliar and another v. Smt. Nagammal Alias Nagabushanammal (1995) II M.L.J. 613) ( cited supra ). At this juncture, I am prompted by the recent judgment of the Court reported in V.M. Ramakrishna Mudaliar and another v. Smt. Nagammal Alias Nagabushanammal (1995) II M.L.J. 613) ( cited supra ). For all the above discussions, held, it is hereby held that the appellant/plaintiff has proved her case regarding the existence and proof of the custom that prevailed in her community, especially in view of the fact that excepting for D.W.I coming forward to adduce some unreliable evidence regarding the factum of the adoption, absolutely no evidence comes forth for the non existence of the custom and hence in all probabilities, it has to be concluded that the plaintiff has proved the existence of the custom of adopting the female children in her community, thus deciding Point No. 2 also in favour of the appellant/plaintiff and against the respondents. Point No. 3: — 57. The lower Court has not appreciated the evidence in a large spectrum and in the manner expected by Law. Without appreciating the merits, it has gone into critical analysis of the facts and circumstances in a very narrow sense and picking up one or two anomalies or minor contradictions here and there it has, ultimately ended up with the wrong conclusion. The lower Court should not have appreciated the evidence in a truncated manner, as it has done, which is undesirable. But, the appreciation of evidence should be in an integrated manner covering all the facts and circumstances encircling the whole case and as warranted by Law. The trial Court has committed patent errors of Law and perversity in its approach in the appreciation of evidence, so as to arrive at the wrong conclusion of dismissing the case of the plaintiff/appellant. In short, the lower Court has miserably failed to show as to how and in what manner and with what evidence, the preponderance of probability is in favour of the respondents, as against the abundant, voluminous and overwhelming evidence made available in favour of the appellant/plaintiff. Hence, it is held that the lower court has not arrived at the proper conclusion to the effect of saying that the appellant/plaintiff has not proved either the adoption or the custom that was prevalent. Hence, it is held that the lower court has not arrived at the proper conclusion to the effect of saying that the appellant/plaintiff has not proved either the adoption or the custom that was prevalent. Hence this question is answered against the decision of the lower Court and it is hereby held that the plaintiff has in no uncertain terms proved, with overwhelming evidence, not only her adoption by Kuppusamy Naicker in the year 1946, but also the custom of adopting the female children that was in vogue in their community. Point No. 4:— In result, the above appeal suit is allowed setting aside the judgment and decree dated 3.3.1994 made in O.S. No. 11 of 1984 by the Court of subordinate Judge, Triuvallur, thereby dismissing the suit filed by the appellant herein. The suit filed in O.S. No. 11 of 1984 by the appellant herein as the plaintiff for partition of her half share in the suit properties and for separate possession of such divided share; for recovery of her share of profits from the date of suit and for costs is hereby decreed by a preliminary decree with costs throughout.