JUDGMENT: This appeal suit is directed against the judgment and decree dated 25.4.1986 rendered in O.S. No.2731 of 1982 by the First Assistant Judge, City Civil Court, Madras thereby dismissing the suit filed by the appellant for partition and separate possession of her half share in the suit property, for damages for use and occupation of her half share by the defendants from 15.8.1981 till the date of the plaint amounting to Rs.4,200, for future damages at the rate of Rs.600 per month from the date of the plaint till the date of delivery of her half share and for costs. 2. Tracing the history of the case, it comes to be known that the appellant has filed the suit before the trial Court on averments such as that the suit property bearing door No.10, Varadarajaperumal Chetty Street, Madras-21, a house property is the property of late Mangalakshmi Ammal; that the said Mangalakshmi Ammal and her husband Arumuga Nadar were issueless and hence when the plaintiff was about four days old, they have taken the plaintiff in adoption according to Hindu customs and rituals in the year 1949 and from that day onwards, the plaintiff was with her adoptive parents only, who educated her and also performed her marriage on 8.9.1968; that even after her marriage, the plaintiff was only with her adoptive parents; that the first defendant is the son of the deceased Mangalakshmi Ammal’s younger sister; that Mangalakshmi Ammal during her life time purchased the suit property for valuable consideration under the registered sale deed dated 20.10.1954 from out of her own funds and was in possession and enjoyment of the said property till her death on 3.7.1978 intestate; that after the death of Mangalakshmi Ammal, her husband inherited the suit property who was alive then and the plaintiff and each of them is entitled to half share in the said property. 3. 3. The further averments of the plaint are that Arumugha Nadar during his old age was unhealthy and the plaintiff was attending on him periodically; that during that period, the first defendant and his mother also used to visit the house of Arumugha Nadar often which was objected to by the plaintiff;that under the pretext of helping and assisting the said Arumugha Nadar, the first defendant and his mother prevailed upon him and exercising undue influence got some document executed on 7.7.1981 in favour of the second defendant who is the wife of the first defendant and her children in the nature of settlement, which was not known to the plaintiff and even Arumugha Nadar did not reveal anything about the said document to the plaintiff; that on the death of Arumugha Nadar on 15.8.1981, when the plaintiff was in the suit house, the first defendant and his mother trespassed and occupied the same illegally; that on the death of Arumugha Nadar, the plaintiff became the absolute owner of the suit property for the share of Arumugha Nadar devolved on her; that Arumugha Nadar has no right to settle the entire suit property in favour of any person since he was the owner of only half share therein, the other half belonging to the plaintiff being the adoptive daughter. With such and other averments and alleging the settlement deed dated 7.7.1981 is a void document, the plaintiff has filed the suit for reliefs extracted supra. 4. On behalf of the defendants the first defendant has filed a written statement denying the allegations of the plaint and further submitting that the plaintiff is not the adoptive doughier of Arumugha Nadar and Mangalakshmi; that the plaintiff is the daughter of one Kumaraswami and Govindammal and she was not brought up by Arumugha Nadar and Mangalakshmi as falsely alleged in the plaint, that only the first defendant was born in the suit property and his parents gave him in adoption to the said Mangalakshmi Ammal and Arumugha Nadar during his childhood in the presence of elders and as per the Hindu rituals and ceremonies and from that day onwards, the first defendant was in the custody of Arumugha Nadar and Mangalakshmi Ammal as their own son and even in the school and educational records of the first defendant, Arumugha Nadar was only shown as his father. 5. 5. The further averments of the written statement are that Arumugha Nadar was doing cart contractor business; that the suit property was purchased by Arumugha Nadar benami in the name of his wife, who was only a house-wife without any source of income and who is hailing from a poor family; that this fact has been admitted by Arumugha Nadar in the settlement Deed executed by him on 7.7.1981 in favour of the second defendant and her minor children to give security of life to them since the marriage between the first and second defendants was arranged and conducted by Arumugha Nadar only; that Arumugha Nadar being the absolute owner of the suit property executed the said settlement deed when he was hale and healthy and was in a sound disposing state of mind and there is no question of defendants exercising undue influence and coercion on the Arumugha Nadar as falsely alleged by the plaintiff and that the plaintiff was not entitled to any share in the property and her claim is baseless. 6. The further averments of the written statement are that they have never trespassed into the suit property as alleged by the plaintiff and on the other hand, after the death of Arumugha Nadar, when the plaintiff along with her husband, brothers and other rowdy elements tried to trespass and dispossess the defendants from the suit property, he lodged a police complaint and the said criminal case is pending against them. Further submitting that if by chance, the Court comes to the conclusion that the suit property belongs to Mangalakshmi Ammal only, the first defendant being the adopted son of Mangalakshmi Ammal and Arumugha Nadar, he is also entitled to have a share in the suit property and further undertaking to deposit necessary court-fee to that proportionate share’s value, the defendants would pray to dismiss the suit with costs. 7. The defendants would also file additional written statement reiterating the averments of the written statement and further submitting that there is no custom either in the family or in the community to adopt any female baby and hence the alleged adoption of the plaintiff is not valid in law and would pray to dismiss the suit with costs. 8. 7. The defendants would also file additional written statement reiterating the averments of the written statement and further submitting that there is no custom either in the family or in the community to adopt any female baby and hence the alleged adoption of the plaintiff is not valid in law and would pray to dismiss the suit with costs. 8. On the above pleadings, the trial Court has framed the following issues and additional issues: Issues: (1) Whether the plaintiff is entitled to partition and separate possession as prayed for? (2) Whether the plaintiff is entitled to damages and mesne profits as prayed for and if so what their quantum is? (3) To what reliefs? Additional issues framed on 5.3.1986: (1) Whether the settlement deed executed by Arumugha Nadar on 7.7.1981 is valid in law? (2) Whether the first defendant is the adopted son of Mangalakshmi? (3) Whether the first defendant is entitled to any share in the suit property as the adopted son? (4) To what relief? 9. After framing the above issues and additional issues, the lower Court has conducted the trial wherein for oral evidence, on behalf of the plaintiff, the plaintiff besides examining herself as P.W.1 has also examined her mother, aunt, senior maternal uncle and two others respectively as P.Ws.2 to 6 and on behalf of the defendants, they would examine five witnesses as D.Ws.1 to 5, of whom D.W.5 is the first defendant himself. For documentary evidence, on behalf of the plaintiff, 20 documents would be marked as Exs.A-1 to A-20 and on behalf of the defendants, they would mark 32 documents as Exs.B-1 to B-32. 10. For documentary evidence, on behalf of the plaintiff, 20 documents would be marked as Exs.A-1 to A-20 and on behalf of the defendants, they would mark 32 documents as Exs.B-1 to B-32. 10. The trial Court, in consideration of the above evidence placed on record has answered all the issues against the plaintiff thereby holding that the plaintiff was not the adopted daughter of Arumugha Nadar and his wife Mangalakshmi Ammal but only the first defendant is the adopted son of the said Arumugha Nadar and his wife Mangalakshmi Ammal; that the suit property was purchased only by Arumugha Nadar in the name of his wife Mangalakshmi Ammal and thus he got every right to convey the property under the settlement deed dated 7.7.1981 to the second defendant and her children; that the settlement deed dated 7.7.1981 executed by Arumugha Nadar in favour of the second defendant and her children is valid in law and that the plaintiff is not entitled to any reliefs prayed for in the suit and thus dismissed the suit; but without costs. It is only aggrieved against such dismissal of the suit filed by her, the plaintiff has come forward to prefer the above appeal suit on certain grounds as brought forth in the grounds of appeal. 11. During arguments, the learned counsel for the appellant besides narrating the facts of the case, would submit that the plaintiff’s case rests on three points viz. (i) that she has proved her adoption by adducing both oral and documentary evidence, (ii) that the settlement deed alleged to have been executed by Arumugha Nadar in favour of the second defendant is invalid and in any event not binding upon the plaintiff, and (iii) the defendants have failed to prove that the first defendant is the adoptive son of the Arumugha Nadar and Mangalakshmi Ammal. 12. Regarding the first point of adoption, the learned counsel for the appellant would submit that the family custom relating to female adoption in Nadars Saivite community and her adoption by Arumugha Nadar are proved by the plaintiff: that female adoption in Hindu Law is not unknown: that before Hindu Adoptions and Maintenance Act, 1956 adoption of female was accepted if it proved to be a custom. At this juncture, the learned counsel for the appellant would cite a judgment rendered by the Full Bench of this Court in Mooka Kone alias Vannia Kone and two others v. Ammakutti alias Vannichi Ammal and another, 54 M.L.J. 174: A.I.R. 1928 Mad. 299: I.L.R. 51 Mad. 1 (F.B.), wherein their Lordships have extracted a portion from page No.15 of Dr.Burnell’s Introduction to the Dayavigabha as follows: “Custom has always been to a great extent superior to the written law in India and especially so in the South, but the Indian Jurists never attempted to record such merely human details: hence the difficulty of the law of mortgage and caste usages on which questions of inheritance often depend. By custom only can the Dharma Sastra here be the rule of others than Brahmins, and even in the case of Brahmins it is very often superseded by custom”. 13. Continuing to argue, the learned counsel for the appellant would read out from evidence of P.W.1 wherein she has deposed that there is practice of taking girls in adoption and her own mother’s Nathanar’s daughter was taken in adoption by another Nathanar thereby giving an instance of family adoption of females in their family and would submit that the evidence of P.W.1 has been asserted by P.Ws.2 and 3: that the plaintiff also examined P.W.4 who has given in adoption, a female child and the female child who was taken in adoption viz. Kuppammal herself was examined as P.W.6 and thus the incidence of family custom in their community to adopt a female child has been proved by the plaintiff. At this juncture, the learned counsel for the appellant would cite a judgment of the Privy Council rendered in S.S.Sv. Kasiviswanathan Chettiar, Since Deceased, now represented by Lakshmi Achi v. S.S.S.S v. Somasundaram Chettiar and others, 51 C.W.N. 374, wherein it has been held that “custom of recent days can bind the parties to the suit.” But, in this case, their Lordships have also directed that their decision would bind only the parties to the suit and those claiming through them, and that it should not be considered a satisfactory precedent if in any future instances among other members of the community fuller evidence regarding the existence of non-existence of the alleged custom should be forthcoming. 14. 14. Regarding the charge of the respondents that adopting four day child’s is inauspicious, the learned counsel for the appellant would argue that Hindu custom has not prohibited such adoption of tender child. Regarding the other charge of the respondents that the exact date of birth of the plaintiff, the place of her birth and the date of adoption were not given, the learned counsel for the appellant would submit that the adoption in the present case being among the closely related persons, it is more of a family affair rather than a public function and therefore examining of an outsider to prove adoption in this case is not necessary: that it is the factum of giving and taking in adoption that has to be proved rather than even the ceremonies: that it is now well settled that the factum of adoption based on custom which is ancient in nature, inspite of the want of clear cut proof which may not be possible due to the passage of time, preponderance of probabilities decide the civil case as per civil jurisprudence and therefore in the present case, inasmuch as the evidence is clear, the defendants cannot harp on the technicalities instead of seeing the overall situation as such. 15. The learned counsel for the appellant would further argue that Ex.B-4 is also a clinching document, which is a reply notice dated 16.12.1978 to Ex.B-3, wherein Arumugha Nadar categorically addressed the plaintiff as his own daughter. The learned counsel for the appellant would also submit that the birth extracts of the plaintiffs children would also clearly establish that the plaintiff delivered her children only at the residence of Arumugha Nadar. 16. Regarding the settlement deed in Ex.A-7, the learned counsel for the appellant would submit that admittedly the suit property was purchased by Mangalakshmi Ammal on 20.10.1954 and all the documents stand in her name only: that from the date of purchase of the suit property on 20.10.1954, till the death of Mangalakshmi Ammal on 3.7.1978, Arumugha Nadar has not taken any steps to either treat the property as his own property or to get back the property in his name and hence the plea of benami raised by the defendants is unsustainable: that mere passing of consideration from the husband for purchase of the property in the name of the wife will not make the transaction benami. At this juncture, the learned counsel for the appellant would cite a Division Bench judgment of the Karnataka High Court rendered in Bidari Basamma (deceased by L.Rs.) and others v. Kanchikeri Bidari Sadyojathappa and others, A.I.R. 1984 Noc. 237, wherein it is held: “Having regard to the nature of the relationship between the husband and the wife and the normal tendency of the husband to benefit the wife either by payment of money or by purchase of property in her name, the allegation of benami can be established in respect of purchase of property in the name of wife only by proving the motive for such benami purchase and the real intention of the husband and not merely by proving the source of consideration.” Citing the above judgment, the learned counsel for the appellant would submit that the defendants are relying merely on Ex.A-7 settlement deed dated 7.7.1981 which was admittedly one month before the death of Arumugha Nadar when he was under the control of the defendants, stating that he has purchased the property benami in the name of his wife, but even in the said document, the said Arumugha Nadar has not mentioned about the motive for purchasing the property in the name of is wife and hence the case of the defendants falls to the ground at this stage itself. 17. 17. The learned counsel for the appellant would further submit that at the time the suit property was purchased, Arumugha Nadar was penniless and he was only a bullock cart puller and not a cart contractor as falsely alleged by the defendants; that Mangalakshmi Ammal’s father Elumalai Nadar was having the property of his own and in fact it was that property which was settled in favour of his daughters equally and he has also provided jewels with which the suit property was purchased by Mangalakshmi Ammal and this fact is supported by Ex.A-4 sale deed which contains the signature of Elumalai Nadar as a witness and therefore the suit property absolutely belongs to Mangalakshmi Ammal: that after the death of Mangalakshmi Ammal intestate, it is natural that the suit property devolved upon the plaintiff and Arumuga Nadar equally and therefore Arumugha Nadar has no right of settling the entire property in favour of the second defendant and therefore the settlement deed stated to have been executed by Arumugha Nadar can be valid only to the extent of his half share in the suit property and hence it is not necessary for the plaintiff to declare the settlement deed void since she restricted her right only in respect of her half share in the suit property. 18. 18. Regarding the last point that the defendants have not proved the adoption of the first defendant, the learned counsel for the appelalnt would submit that the first defendant as D.W.5 has not mentioned anything about his adoption: that the father and mother of the first defendant, who were examined as D.Ws.3 and 4 respectively deposed that the adoption was done by performing vedic rites and all homams and ceremonies on the pongal day of 1962; that if it is really so, vedic experts would have fixed an auspicious day for the said purpose, but Ex.A-18 panchangam for the year 1961-62 would show that the pongal day in January, 1962 was a karinal and not an auspicious day and this falsified the allegation of the defendants that the first defendant was adopted by Arumugha Nadar and Mangalakshmi Ammal: that besides the interested testimony of D.Ws.3 and 4, the defendants have also examined D.Ws.1 and 2, who are admittedly Corporation employees working with the father of the first defendant i.e., D.W.3 but when adoption is predominantly a family affair, the evidence of D.Ws.1 and 2 is not of any use: that it is relevant to note that none of the relatives of the defendants have been examined on behalf of the defendants. 19. The learned counsel for the appellant would further argue that the defendants have produced Ex.B-28 xerox copy of S.S.L.C. book of the first defendant, which shows the signature of the Arumuga Nadar on the left hand side on 4.3.1974, which is not authenticated or attested in the presence of either the Headmaster or any other officer: that on the other hand, on the right side, dated 13.3.1976 the Headmaster has put his signature but there is no signature of Arumugha Nadar in the column of declaration: that this shows that the signature of Arumugha Nadar was obtained afterwards on the left hand side and if Arumugha Nadar was an adoptive father, he would have signed in the presence of the Headmaster on 13.3.1976 on the right side of Ex.B-28 and therefore it is clear that the first defendant has miserably failed to prove that he is the adopted son of Arumugha Nadar and Mangalakshmi Ammal with such arguments, the learned counsel for the appellant would pray to allow the above appeal suit and set aside the judgment and decree of the lower Court. 20. 20. On the other hand, the learned counsel for the respondents would submit that to prove the fact that Arumugha Nadar was a cart contractor in Madras Port Trust, Exs.B-1 and B-20 were filed and hence the allegation of the appellant/ plaintiff that Arumugha Nadar was the driver of the truck cart is false: that to prove the financial capacity of Arumugha Nadar, Exs.B-11 to B-14 were marked: that the mootable question in the above appeal suit is whether the girl adoption alleged to have been done by Arumugha Nadar and Mangalakshmi in the year 1949 is valid in law and whether the alleged adoption is proved by custom of the community or family? 21. The learned counsel for the respondents would further submit that admittedly, no ceremony was done during the alleged adoption of P.W.1. Then citing from the depositions of P.Ws.1 to 3, the learned counsel for the respondents would submit that at the time of the alleged adoption, the natural father of P.W.1 Kumarasamy and the alleged adoptive father Arumugha Nadar were not present and therefore the question involved is whether the adoption done by the wife without authority, consent and presence of her husband is valid in Hindu Law prior to 1956? At this juncture, the learned counsel for the respondents would cite a judgment of the Patna High Court rendered in Mathuni Prasad Singh and another v. Mst.Kachnar Kuer and others, A.I.R. 1965 Pat. 160, wherein it has been held that the adoption by Hindu widow without the authority from the husband is void and even if adoption ceremony proved, it cannot validate the adoption performed without the authority from the husband. 22. The learned counsel for the respondents would further submit that girl adoption is unknown to Hindu Law prior to 1956, unless it is recognised by custom and would cite a judgment of the Madhya Pradesh High Court rendered in Brejendra Narayan Ganguly and another v. Chinta Haran Sarkar and another, A.I.R. 1961 M.P. 173, wherein it has been held: “Adoption of girl was not known to the general law of the Hindus before the Hindu Adoptions and Maintenance Act, 1956 came into force and the onus of establishing a local, tribal or family custom validating such an adoption was upon those who alleged it.” 23. The learned counsel for the respondents would cite a judgment of the Apex Court rendered in V.T.S. Chandrasekhara Mudaliar (Since Deceased) and after him his Legal Representatives and others v. Kulandaivelu Mudaliar and others, A.I.R. 1963 S.C. 185, wherein their Lordships have quoted on extract from the Privy Council decision in C.China Ramsubayya v. M.Chenchuramayya, (1947)2 M.L.J. 39 : A.I.R. 1947 P.C. 124 as follows: “Under the Hindu Law it is the”taking of a son“as a substitute for the failure of male issue; its object is two fold: (1) to secure the performance of the funeral rites of the person to whom the adoption is made: and (2) to preserve the continuance of has lineage”. Quoting the above extract, their Lordship’s have held (in A.I.R. 1963 S.C. 193): “It may, therefore, safely be held that the validity of an adoption has to be judged by spiritual rather than temporal considerations and that devolution of property is only of secondary importance.” Citing the above judgment, the learned counsel for the respondents would submit that in a Dravida community, the adoption of a girl is not valid in law before 1956 and in this case since the plaintiff belongs to Hindu Nadar community, which is part of Dravidian community, the adoption of a girl, without the custom, is not recognised in law. 24. The learned counsel for the respondents would further argue that for a valid adoption, the natural parents must give the child to the adoptive parents and the adoptive parents must take the child and would cite a judgment of the Apex Court rendered in L.Debi Prasad (Dead) by L.Rs. 24. The learned counsel for the respondents would further argue that for a valid adoption, the natural parents must give the child to the adoptive parents and the adoptive parents must take the child and would cite a judgment of the Apex Court rendered in L.Debi Prasad (Dead) by L.Rs. v. Smt.Tribeni Devi and others, A.I.R. 1970 S.C. 1286: (1971)1 S.C.J. 52, wherein it has been held: “Under Hindu Law, the giving and receiving of a boy are absolutely necessary to the validity of an adoption; they are the operative part of the ceremony, being that part of it which transfers the boy from one family to another; but the Hindu Law does not require that there shall be any particular form so far as giving and acceptance are concerned; 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.” Citing the above judgment, the learned counsel for the respondents would submit that even the evidences of P.Ws.1, 3 and 4 does not speak about the giving and taking of the adoptive child. 25. Then, pointing out from the evidence of P.Ws.3 to 5, the learned counsel for the respondents would argue that fostering is different from adoption: that even in the reply given by Arumugha Nadar in Ex.B-4, dated 16.12.1978 to Ex.B-3 notice got issued by P.W.2 it has been mentioned that your client’s sons were brought up by my client in his house and were given in marriage by him expending his own money and your client’s daughter was also actually living only in my client’s house and ultimately given in marriage as a daughter of my own client and hence Arumugha Nadar did not accept the adoption of the plaintiff and the claim of plaintiff that she is the adoptive daughter of Arumugha Nadar and Mangalakshmi is false and baseless: that since no evidence is adduced by the plaintiff that the act of giving and taking the child by the natural parents to the adoptive parents was done during her adoption, the factum of plaintiff’s adoption is not proved as required by law. 26. 26. The learned counsel for the respondents would further submit that both in Ex.A-8 notice and in the plaint, there is no specific plea for the date, place and month of adoption and witnesses present at the time of adoption but only in the evidence of plaintiff, she improved her case. Citing various instances from both oral and documentary evidence, the learned counsel for the respondents would submit that the plaintiff did not prove her correct date of birth and correct date of adoption and beyond all reasonable doubts. The plaintiffs date of birth is in the year 1948 but not 2.8.1948 as mentioned in Ex.B-32 horoscope of the plaintiff and the plaintiff has not established the plea of adoption as the place of adoption is contrary among witnesses. Quoting certain portions from the evidence of P.Ws.4 to 6 and D.W.4, the learned counsel for the respondents would submit that in Hindu Nadar community, for any good deeds, they will conduct ceremony: that the ceremony is like the Datta Homam as contemplated under the Hindu Law of Adoption, but in this case, even though the plaintiff belonged to Hindu Nadar Community, no ceremony is conducted for her alleged adoption and hence the alleged adoption of P.W.1 contrary to the custom and ceremonies of Hindu Nadar Community is not valid and sustainable in law. 27. 27. The learned counsel for the respondents would further submit that the Courts have so far recognised three types of customs, viz., (i) local custom, (ii) class custom, and (iii) family custom, but in this case, the plaintiff did not prove any of such customs and hence the alleged adoption of the plaintiff is not valid and recognised in law: that further the plaintiff did not examine any community elders such as Nattammai or Dharmakartha to speak about the custom of family or community or class and would cite a judgment of Full Bench of the Apex Court rendered in Mohammed Baqar and others v. Naim Un Nisa and others, A.I.R. 1956 S.C. 548, wherein it has been held: “The burden of proving a custom in derogation of the general law being heavily on the party who sets it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them.” The learned counsel for the respondents would also cite a judgment of the Apex Court rendered in Kochan Kanj Kunjuraman Kani v. Mathevan Kani Sankaran Kani and others, A.I.R. 1971 S.C. 1398, wherein it has been held: “Anybody who puts forward a custom must prove by satisfactory evidence the existence of the custom pleaded, its continuity and the consistency with which it was observed. A party against whom a custom is pleaded must have notice as to what case he has to meet. The opposite party apart from rebutting the evidence adduced by the plaintiff may be able to prove that the custom in question was not invariably followed.” The other judgment cited by the learned counsel for the respondents in this context is one delivered by a Division Bench of this Court in Rabi v. Jasu Leela, (2000)3 L.W. 409 , wherein when there was no specific plea in the written statement that in the community there was a custom of adoption, their Lordships have observed that the plea of custom advanced before their Lordships cannot be accepted. 28. 28. Citing the above judgments, the learned counsel for the respondents would argue that there is no pleading by the plaintiff regarding the family or communal or local custom prevailing in the Hindu Nadar community for a girl adoption and the evidence of the witnesses during trial thereby developing her case is not sustainable in law and since the evidence of the witnesses is not supported by pleadings, it is against law and principles of natural justice. 29. The learned counsel for the respondents would further argue that from the evidence it is clear that whenever a child is born, the first fifteen days immediately after the birth of the child is treated as inauspicious and since adoption of a child by one family from another family is an suspicious one and celebrated day, the case of the plaintiff that she was given in adoption on the 4th day of her birth is not believable: that further more normally, the child of 4 days longs for the warmth and company of her own mother and when the plaintiff failed and did not give any specific reason for urgent adoption within four days from the date of her birth, it throws much doubt and suspicion on the plea of adoption. At this juncture, the learned counsel for the respondents would cite a judgment of the Apex Court rendered in Kishori Lal v. Mt. Chaltibai, A.I.R. 1959 S.C. 504, wherein it has been held: “As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth.” 30. The learned counsel for the respondents would further argue that the plaintiff did not comply with the important test of severance of the adopted child from the natural parents: that the very fact that the plaintiff’s father Kumarasamy wrote a Will in favour of the plaintiff clearly shows that the plaintiff was in the custody and care of her natural father, which is against the principles of adoption and would cite a judgment of this Court rendered in Gopinath Shetty (Minor) by next friend Father K.Subbayya Shetty v. Santhamma and others, (1956)2 M.L.J. 38 , wherein it has been held: “Being a customary form of adoption its incidents and legal effect on rights to property will have to be decided according to the custom prevailing in particular families governed by such systems of law. The normal rule in every case of adoption, whether sanctioned by law or by custom or usage is that it effects a severance of the adoptee from the family of his birth. If there is any custom contrary to this rule, it is for those who rely on such custom to establish it.” 31. Citing from the evidence of P.Ws.3 to 6, the learned counsel for the respondents would submit that from the evidence it is clear that P.W.4 Amarvathi did not give P.W.6 Kuppammal in adoption to Dhanabakiyam and Velayutha Nadar: that the plaintiff filed Exs.A-1 to A-3 to prove her case of adoption, Exs.A-1 and A-2 are the marriage invitation cards of the plaintiff and Ex.A-3 is the betrothal invitation of the plaintiff wherein the plaintiff was described as the adopted daughter of Arumugha Nadar but since Exs.A-2 and A-3 are filed after the filing of the suit, they are fabricated documents and from the evidence it is clear that like plaintiff’s marriage Arumugha Nadar had conducted many marriages during his lifetime and this philanthropic nature of Arumugha Nadar was misused by the plaintiff and her mother. At this juncture, the learned counsel for the respondents would cite the judgment of the Apex Court reported in Kishori Lal v. Mt. Chaltibai, A.I.R. 1959 S.C. 504, wherein it has been further held that the performance of the marriage itself does not prove adoption which is otherwise disproved. 32. At this juncture, the learned counsel for the respondents would cite the judgment of the Apex Court reported in Kishori Lal v. Mt. Chaltibai, A.I.R. 1959 S.C. 504, wherein it has been further held that the performance of the marriage itself does not prove adoption which is otherwise disproved. 32. The learned counsel for the respondents would further argue that from the evidence it is clear that the suit property is not purchased by Mangalakshmi since she was only a housewife having no independent source of income and that the suit property is purchased by Arumugha Nadar in the name of Mangalakshmi since he was a bullock cart contractor and was a wealthy man; that even assuming that the suit property is the property of Mangalakshmi Ammal, since they did not have any issue, Arumuga Nadar is having title, right and claim in the suit property as the surviving legal heir; that it is evident that the sale deed in the name of Mangalakshmi is a benami sale and the same is also confirmed by the settlement deed executed by Arumuga Nadar. At this juncture, the learned counsel for the respondents would cite a Division Bench judgment of this Court rendered in A.Rangaswami Pillai v. A.Subramania Pillai and others, (1974)2 M.L.J. 442 , wherein it has been held: “Under Clause (7) or Sec.32 of the Evidence Act, a statement made by a person, which is contained in any deed, will or other document which relates to any such transaction as is mentioned in Sec.13, Clause (a), is a relevant fact and therefore admissible in evidence. The phrase “which relates to any such transaction” in Sec.13 qualifies the word “statement” in Clause (7) of Sec.32.” Citing the above judgment, the learned counsel for the respondents would submit that the settlement deed dated 7.7.1981 executed by Arumuga Nadar in favour of the defendants 2 to 5 is valid in law: that Arumugha Nadar was in absolute possession and enjoyment of the suit property from the date of purchase till his death and the electricity card under Ex.B-16 for the suit property stood in the name of Arumugha Nadar and he only collected the rents from the tenants who are residing at the suit property; that Arumugha Nadar mortgaged the suit property and discharged the same many a time as evidenced by Ex.B-26 and hence by the conduct of Arumugha Nadar and relationship of Arumugha Nadar and Mangalakshmi as wife and husband clearly prove that Arumugha Nadar was the real and absolute owner of the suit property and his wife Mangalakshmi is only a name lender for the purchase of the suit property. At this juncture, the learned counsel for the respondents would cite a judgment of the Apex Court rendered in Jaydayal Peddar (deceased) through L.Rs. and another v. Mst.Bibi Hazra and others, A.I.R. 1974 S.C. 171, wherein it has been held: “Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down; yet in weighing the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale, and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No.1 viz., the source when the purchase money come, is by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another.” Citing the above judgment, the learned counsel for the respondents would submit that the settlement deed executed by Arumugha Nadar is lawful and valid in law. 33. Regarding the plea of the first respondent that he is adopted son of Mangalakshmi Ammal and Arumugha Nadar the learned counsel for the respondents would submit that the respondents have proved their case both by oral and documentary evidence which are obtained prior to the suit and hence they cannot be termed fabricated: that apart in Exs.A-7 and B-27, Arumugha Nadar has admitted that the first respondent is his adopted son. At this juncture, the learned counsel for the respondents would cite a judgment of the Patna High Court rendered in Umesh Bhagat v. Smt.Ram Kumari Devi and others, A.I.R. 1963 Pat. 362, wherein it has been held: “Hindu Law - Adoption - Evidence - Application for admission to college - Declaration signed by adoptive father - Student described as his son amounts to clear admission of adoption by adoptive father and establishes adoption. The admission also binds persons claiming under him.” With the above arguments, the learned counsel for the respondents would pray to dismiss the above appeal suit. 34. The admission also binds persons claiming under him.” With the above arguments, the learned counsel for the respondents would pray to dismiss the above appeal suit. 34. In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that the appellant/ plaintiff has filed the suit praying for a partition of her half share in the suit property which is a house bearing Door No.10, Varadaraja Perumal Street, Madras-21 and put her in possession of such divided half share in the same and for past damages of Rs.4,200 and future damages at Rs.600 from the date of plaint till the date of delivery and for costs on averments such as that the plaintiff is the adopted daughter of -------------------------------------------------------------------------------- ---------------- (2001) Supp M.L.J. 93 at page 104 ---------------- -------------------------------------------------------------------------------- Mangalakshmi Ammal and her husband Arumugha Nadar since they were issueless: that she was born to Mangalakshmi Ammal’s younger sister and as a tender child of four days, she was given in adoption: that she was brought up by the adoptive parents, got her educated, celebrated the occasion of her betrothal and got her married thus all her life was revolving only around her adoptive parents: that Mangalakshmi Ammal, during her lifetime, purchased the suit property for a valuable consideration under a registered sale deed dated 20.10.1954 from out of her own funds and was in possession and enjoyment of the same till her death on 3.7.1978 and that herself and Mangalakshmi Ammal’s husband i.e., the adoptive father Arumugha Nadar inherited the suit property each of them being entitled to half share in the same. 35. 35. The further case of the plaintiff is that on account of old age, the health of Arumugha Nadar was failing and that she was attending him periodically: that taking advantage of his position of being not in a disposing state of mind and under the pretext of helping and assisting him, the first defendant and his mother, by exercise of undue influence, got some document executed in favour of the second defendant, the wife of the first defendant, purported to have been a gift settlement deed and this was not at all disclosed to the plaintiff which she was given to understand at a later stage after the death of Arumugha Nadar on 15.8.1981 and that the plaintiff was forcibly evicted from out of the house by the first defendant and his mother and they trespassed and occupied the same in an unlawful manner. The plaintiff would, however, state that on the death of Arumugha Nadar, she became the absolute owner of the suit property: that even if under the said gift settlement deed dated 7.7.1981, had Arumugha Nadar gifted anything, he could do only his half share and not the plaintiff’s half share and hence the suit for the reliefs extracted supra. 36. On the other hand, the case of the first defendant is different. Denying the allegation that the plaintiff is the adopted daughter of Arumugha Nadar and Mangalakshmi Ammal and brought up by them, he would allege that he was only adopted by them during his childhood following the rituals in accordance with the requirements of Hindu Law and he was in the custody of his adoptive parents. This defendant would further allege that the suit property was benami purchased in the name of Mangalakshmi Ammal from out of the funds supplied by Arumugha Nadar, who was a Cart contractor in the Port Trust, Madras: that the suit property was settled under a settlement deed dated 7.7.1981 in favour of his wife the second defendant: that it was only the plaintiff who attempted to disturb his possession of the suit property with the help of her mother and relatives and not on the vice versa; that however, if by chance the Court arrives at the conclusion that the suit property belonged to Mangalakshmi Ammal, being their adopted son, he is entitled to a share in the suit property. In the additional written statement, this defendant would plead that there is no custom there in the family or the community to adopt a female child and hence the alleged adoption of the plaintiff is not valid in-law. On such allegations, this defendant would seek to dismiss the suit. JUDGMENT: This appeal suit is directed against the judgment and decree dated 25.4.1986 rendered in O.S. No.2731 of 1982 by the First Assistant Judge, City Civil Court, Madras thereby dismissing the suit filed by the appellant for partition and separate possession of her half share in the suit property, for damages for use and occupation of her half share by the defendants from 15.8.1981 till the date of the plaint amounting to Rs.4,200, for future damages at the rate of Rs.600 per month from the date of the plaint till the date of delivery of her half share and for costs. 2. Tracing the history of the case, it comes to be known that the appellant has filed the suit before the trial Court on averments such as that the suit property bearing door No.10, Varadarajaperumal Chetty Street, Madras-21, a house property is the property of late Mangalakshmi Ammal; that the said Mangalakshmi Ammal and her husband Arumuga Nadar were issueless and hence when the plaintiff was about four days old, they have taken the plaintiff in adoption according to Hindu customs and rituals in the year 1949 and from that day onwards, the plaintiff was with her adoptive parents only, who educated her and also performed her marriage on 8.9.1968; that even after her marriage, the plaintiff was only with her adoptive parents; that the first defendant is the son of the deceased Mangalakshmi Ammal’s younger sister; that Mangalakshmi Ammal during her life time purchased the suit property for valuable consideration under the registered sale deed dated 20.10.1954 from out of her own funds and was in possession and enjoyment of the said property till her death on 3.7.1978 intestate; that after the death of Mangalakshmi Ammal, her husband inherited the suit property who was alive then and the plaintiff and each of them is entitled to half share in the said property. 3. 3. The further averments of the plaint are that Arumugha Nadar during his old age was unhealthy and the plaintiff was attending on him periodically; that during that period, the first defendant and his mother also used to visit the house of Arumugha Nadar often which was objected to by the plaintiff;that under the pretext of helping and assisting the said Arumugha Nadar, the first defendant and his mother prevailed upon him and exercising undue influence got some document executed on 7.7.1981 in favour of the second defendant who is the wife of the first defendant and her children in the nature of settlement, which was not known to the plaintiff and even Arumugha Nadar did not reveal anything about the said document to the plaintiff; that on the death of Arumugha Nadar on 15.8.1981, when the plaintiff was in the suit house, the first defendant and his mother trespassed and occupied the same illegally; that on the death of Arumugha Nadar, the plaintiff became the absolute owner of the suit property for the share of Arumugha Nadar devolved on her; that Arumugha Nadar has no right to settle the entire suit property in favour of any person since he was the owner of only half share therein, the other half belonging to the plaintiff being the adoptive daughter. With such and other averments and alleging the settlement deed dated 7.7.1981 is a void document, the plaintiff has filed the suit for reliefs extracted supra. 4. On behalf of the defendants the first defendant has filed a written statement denying the allegations of the plaint and further submitting that the plaintiff is not the adoptive doughier of Arumugha Nadar and Mangalakshmi; that the plaintiff is the daughter of one Kumaraswami and Govindammal and she was not brought up by Arumugha Nadar and Mangalakshmi as falsely alleged in the plaint, that only the first defendant was born in the suit property and his parents gave him in adoption to the said Mangalakshmi Ammal and Arumugha Nadar during his childhood in the presence of elders and as per the Hindu rituals and ceremonies and from that day onwards, the first defendant was in the custody of Arumugha Nadar and Mangalakshmi Ammal as their own son and even in the school and educational records of the first defendant, Arumugha Nadar was only shown as his father. 5. 5. The further averments of the written statement are that Arumugha Nadar was doing cart contractor business; that the suit property was purchased by Arumugha Nadar benami in the name of his wife, who was only a house-wife without any source of income and who is hailing from a poor family; that this fact has been admitted by Arumugha Nadar in the settlement Deed executed by him on 7.7.1981 in favour of the second defendant and her minor children to give security of life to them since the marriage between the first and second defendants was arranged and conducted by Arumugha Nadar only; that Arumugha Nadar being the absolute owner of the suit property executed the said settlement deed when he was hale and healthy and was in a sound disposing state of mind and there is no question of defendants exercising undue influence and coercion on the Arumugha Nadar as falsely alleged by the plaintiff and that the plaintiff was not entitled to any share in the property and her claim is baseless. 6. The further averments of the written statement are that they have never trespassed into the suit property as alleged by the plaintiff and on the other hand, after the death of Arumugha Nadar, when the plaintiff along with her husband, brothers and other rowdy elements tried to trespass and dispossess the defendants from the suit property, he lodged a police complaint and the said criminal case is pending against them. Further submitting that if by chance, the Court comes to the conclusion that the suit property belongs to Mangalakshmi Ammal only, the first defendant being the adopted son of Mangalakshmi Ammal and Arumugha Nadar, he is also entitled to have a share in the suit property and further undertaking to deposit necessary court-fee to that proportionate share’s value, the defendants would pray to dismiss the suit with costs. 7. The defendants would also file additional written statement reiterating the averments of the written statement and further submitting that there is no custom either in the family or in the community to adopt any female baby and hence the alleged adoption of the plaintiff is not valid in law and would pray to dismiss the suit with costs. 8. 7. The defendants would also file additional written statement reiterating the averments of the written statement and further submitting that there is no custom either in the family or in the community to adopt any female baby and hence the alleged adoption of the plaintiff is not valid in law and would pray to dismiss the suit with costs. 8. On the above pleadings, the trial Court has framed the following issues and additional issues: Issues: (1) Whether the plaintiff is entitled to partition and separate possession as prayed for? (2) Whether the plaintiff is entitled to damages and mesne profits as prayed for and if so what their quantum is? (3) To what reliefs? Additional issues framed on 5.3.1986: (1) Whether the settlement deed executed by Arumugha Nadar on 7.7.1981 is valid in law? (2) Whether the first defendant is the adopted son of Mangalakshmi? (3) Whether the first defendant is entitled to any share in the suit property as the adopted son? (4) To what relief? 9. After framing the above issues and additional issues, the lower Court has conducted the trial wherein for oral evidence, on behalf of the plaintiff, the plaintiff besides examining herself as P.W.1 has also examined her mother, aunt, senior maternal uncle and two others respectively as P.Ws.2 to 6 and on behalf of the defendants, they would examine five witnesses as D.Ws.1 to 5, of whom D.W.5 is the first defendant himself. For documentary evidence, on behalf of the plaintiff, 20 documents would be marked as Exs.A-1 to A-20 and on behalf of the defendants, they would mark 32 documents as Exs.B-1 to B-32. 10. For documentary evidence, on behalf of the plaintiff, 20 documents would be marked as Exs.A-1 to A-20 and on behalf of the defendants, they would mark 32 documents as Exs.B-1 to B-32. 10. The trial Court, in consideration of the above evidence placed on record has answered all the issues against the plaintiff thereby holding that the plaintiff was not the adopted daughter of Arumugha Nadar and his wife Mangalakshmi Ammal but only the first defendant is the adopted son of the said Arumugha Nadar and his wife Mangalakshmi Ammal; that the suit property was purchased only by Arumugha Nadar in the name of his wife Mangalakshmi Ammal and thus he got every right to convey the property under the settlement deed dated 7.7.1981 to the second defendant and her children; that the settlement deed dated 7.7.1981 executed by Arumugha Nadar in favour of the second defendant and her children is valid in law and that the plaintiff is not entitled to any reliefs prayed for in the suit and thus dismissed the suit; but without costs. It is only aggrieved against such dismissal of the suit filed by her, the plaintiff has come forward to prefer the above appeal suit on certain grounds as brought forth in the grounds of appeal. 11. During arguments, the learned counsel for the appellant besides narrating the facts of the case, would submit that the plaintiff’s case rests on three points viz. (i) that she has proved her adoption by adducing both oral and documentary evidence, (ii) that the settlement deed alleged to have been executed by Arumugha Nadar in favour of the second defendant is invalid and in any event not binding upon the plaintiff, and (iii) the defendants have failed to prove that the first defendant is the adoptive son of the Arumugha Nadar and Mangalakshmi Ammal. 12. Regarding the first point of adoption, the learned counsel for the appellant would submit that the family custom relating to female adoption in Nadars Saivite community and her adoption by Arumugha Nadar are proved by the plaintiff: that female adoption in Hindu Law is not unknown: that before Hindu Adoptions and Maintenance Act, 1956 adoption of female was accepted if it proved to be a custom. At this juncture, the learned counsel for the appellant would cite a judgment rendered by the Full Bench of this Court in Mooka Kone alias Vannia Kone and two others v. Ammakutti alias Vannichi Ammal and another, 54 M.L.J. 174: A.I.R. 1928 Mad. 299: I.L.R. 51 Mad. 1 (F.B.), wherein their Lordships have extracted a portion from page No.15 of Dr.Burnell’s Introduction to the Dayavigabha as follows: “Custom has always been to a great extent superior to the written law in India and especially so in the South, but the Indian Jurists never attempted to record such merely human details: hence the difficulty of the law of mortgage and caste usages on which questions of inheritance often depend. By custom only can the Dharma Sastra here be the rule of others than Brahmins, and even in the case of Brahmins it is very often superseded by custom”. 13. Continuing to argue, the learned counsel for the appellant would read out from evidence of P.W.1 wherein she has deposed that there is practice of taking girls in adoption and her own mother’s Nathanar’s daughter was taken in adoption by another Nathanar thereby giving an instance of family adoption of females in their family and would submit that the evidence of P.W.1 has been asserted by P.Ws.2 and 3: that the plaintiff also examined P.W.4 who has given in adoption, a female child and the female child who was taken in adoption viz. Kuppammal herself was examined as P.W.6 and thus the incidence of family custom in their community to adopt a female child has been proved by the plaintiff. At this juncture, the learned counsel for the appellant would cite a judgment of the Privy Council rendered in S.S.Sv. Kasiviswanathan Chettiar, Since Deceased, now represented by Lakshmi Achi v. S.S.S.S v. Somasundaram Chettiar and others, 51 C.W.N. 374, wherein it has been held that “custom of recent days can bind the parties to the suit.” But, in this case, their Lordships have also directed that their decision would bind only the parties to the suit and those claiming through them, and that it should not be considered a satisfactory precedent if in any future instances among other members of the community fuller evidence regarding the existence of non-existence of the alleged custom should be forthcoming. 14. 14. Regarding the charge of the respondents that adopting four day child’s is inauspicious, the learned counsel for the appellant would argue that Hindu custom has not prohibited such adoption of tender child. Regarding the other charge of the respondents that the exact date of birth of the plaintiff, the place of her birth and the date of adoption were not given, the learned counsel for the appellant would submit that the adoption in the present case being among the closely related persons, it is more of a family affair rather than a public function and therefore examining of an outsider to prove adoption in this case is not necessary: that it is the factum of giving and taking in adoption that has to be proved rather than even the ceremonies: that it is now well settled that the factum of adoption based on custom which is ancient in nature, inspite of the want of clear cut proof which may not be possible due to the passage of time, preponderance of probabilities decide the civil case as per civil jurisprudence and therefore in the present case, inasmuch as the evidence is clear, the defendants cannot harp on the technicalities instead of seeing the overall situation as such. 15. The learned counsel for the appellant would further argue that Ex.B-4 is also a clinching document, which is a reply notice dated 16.12.1978 to Ex.B-3, wherein Arumugha Nadar categorically addressed the plaintiff as his own daughter. The learned counsel for the appellant would also submit that the birth extracts of the plaintiffs children would also clearly establish that the plaintiff delivered her children only at the residence of Arumugha Nadar. 16. Regarding the settlement deed in Ex.A-7, the learned counsel for the appellant would submit that admittedly the suit property was purchased by Mangalakshmi Ammal on 20.10.1954 and all the documents stand in her name only: that from the date of purchase of the suit property on 20.10.1954, till the death of Mangalakshmi Ammal on 3.7.1978, Arumugha Nadar has not taken any steps to either treat the property as his own property or to get back the property in his name and hence the plea of benami raised by the defendants is unsustainable: that mere passing of consideration from the husband for purchase of the property in the name of the wife will not make the transaction benami. At this juncture, the learned counsel for the appellant would cite a Division Bench judgment of the Karnataka High Court rendered in Bidari Basamma (deceased by L.Rs.) and others v. Kanchikeri Bidari Sadyojathappa and others, A.I.R. 1984 Noc. 237, wherein it is held: “Having regard to the nature of the relationship between the husband and the wife and the normal tendency of the husband to benefit the wife either by payment of money or by purchase of property in her name, the allegation of benami can be established in respect of purchase of property in the name of wife only by proving the motive for such benami purchase and the real intention of the husband and not merely by proving the source of consideration.” Citing the above judgment, the learned counsel for the appellant would submit that the defendants are relying merely on Ex.A-7 settlement deed dated 7.7.1981 which was admittedly one month before the death of Arumugha Nadar when he was under the control of the defendants, stating that he has purchased the property benami in the name of his wife, but even in the said document, the said Arumugha Nadar has not mentioned about the motive for purchasing the property in the name of is wife and hence the case of the defendants falls to the ground at this stage itself. 17. 17. The learned counsel for the appellant would further submit that at the time the suit property was purchased, Arumugha Nadar was penniless and he was only a bullock cart puller and not a cart contractor as falsely alleged by the defendants; that Mangalakshmi Ammal’s father Elumalai Nadar was having the property of his own and in fact it was that property which was settled in favour of his daughters equally and he has also provided jewels with which the suit property was purchased by Mangalakshmi Ammal and this fact is supported by Ex.A-4 sale deed which contains the signature of Elumalai Nadar as a witness and therefore the suit property absolutely belongs to Mangalakshmi Ammal: that after the death of Mangalakshmi Ammal intestate, it is natural that the suit property devolved upon the plaintiff and Arumuga Nadar equally and therefore Arumugha Nadar has no right of settling the entire property in favour of the second defendant and therefore the settlement deed stated to have been executed by Arumugha Nadar can be valid only to the extent of his half share in the suit property and hence it is not necessary for the plaintiff to declare the settlement deed void since she restricted her right only in respect of her half share in the suit property. 18. 18. Regarding the last point that the defendants have not proved the adoption of the first defendant, the learned counsel for the appelalnt would submit that the first defendant as D.W.5 has not mentioned anything about his adoption: that the father and mother of the first defendant, who were examined as D.Ws.3 and 4 respectively deposed that the adoption was done by performing vedic rites and all homams and ceremonies on the pongal day of 1962; that if it is really so, vedic experts would have fixed an auspicious day for the said purpose, but Ex.A-18 panchangam for the year 1961-62 would show that the pongal day in January, 1962 was a karinal and not an auspicious day and this falsified the allegation of the defendants that the first defendant was adopted by Arumugha Nadar and Mangalakshmi Ammal: that besides the interested testimony of D.Ws.3 and 4, the defendants have also examined D.Ws.1 and 2, who are admittedly Corporation employees working with the father of the first defendant i.e., D.W.3 but when adoption is predominantly a family affair, the evidence of D.Ws.1 and 2 is not of any use: that it is relevant to note that none of the relatives of the defendants have been examined on behalf of the defendants. 19. The learned counsel for the appellant would further argue that the defendants have produced Ex.B-28 xerox copy of S.S.L.C. book of the first defendant, which shows the signature of the Arumuga Nadar on the left hand side on 4.3.1974, which is not authenticated or attested in the presence of either the Headmaster or any other officer: that on the other hand, on the right side, dated 13.3.1976 the Headmaster has put his signature but there is no signature of Arumugha Nadar in the column of declaration: that this shows that the signature of Arumugha Nadar was obtained afterwards on the left hand side and if Arumugha Nadar was an adoptive father, he would have signed in the presence of the Headmaster on 13.3.1976 on the right side of Ex.B-28 and therefore it is clear that the first defendant has miserably failed to prove that he is the adopted son of Arumugha Nadar and Mangalakshmi Ammal with such arguments, the learned counsel for the appellant would pray to allow the above appeal suit and set aside the judgment and decree of the lower Court. 20. 20. On the other hand, the learned counsel for the respondents would submit that to prove the fact that Arumugha Nadar was a cart contractor in Madras Port Trust, Exs.B-1 and B-20 were filed and hence the allegation of the appellant/ plaintiff that Arumugha Nadar was the driver of the truck cart is false: that to prove the financial capacity of Arumugha Nadar, Exs.B-11 to B-14 were marked: that the mootable question in the above appeal suit is whether the girl adoption alleged to have been done by Arumugha Nadar and Mangalakshmi in the year 1949 is valid in law and whether the alleged adoption is proved by custom of the community or family? 21. The learned counsel for the respondents would further submit that admittedly, no ceremony was done during the alleged adoption of P.W.1. Then citing from the depositions of P.Ws.1 to 3, the learned counsel for the respondents would submit that at the time of the alleged adoption, the natural father of P.W.1 Kumarasamy and the alleged adoptive father Arumugha Nadar were not present and therefore the question involved is whether the adoption done by the wife without authority, consent and presence of her husband is valid in Hindu Law prior to 1956? At this juncture, the learned counsel for the respondents would cite a judgment of the Patna High Court rendered in Mathuni Prasad Singh and another v. Mst.Kachnar Kuer and others, A.I.R. 1965 Pat. 160, wherein it has been held that the adoption by Hindu widow without the authority from the husband is void and even if adoption ceremony proved, it cannot validate the adoption performed without the authority from the husband. 22. The learned counsel for the respondents would further submit that girl adoption is unknown to Hindu Law prior to 1956, unless it is recognised by custom and would cite a judgment of the Madhya Pradesh High Court rendered in Brejendra Narayan Ganguly and another v. Chinta Haran Sarkar and another, A.I.R. 1961 M.P. 173, wherein it has been held: “Adoption of girl was not known to the general law of the Hindus before the Hindu Adoptions and Maintenance Act, 1956 came into force and the onus of establishing a local, tribal or family custom validating such an adoption was upon those who alleged it.” 23. The learned counsel for the respondents would cite a judgment of the Apex Court rendered in V.T.S. Chandrasekhara Mudaliar (Since Deceased) and after him his Legal Representatives and others v. Kulandaivelu Mudaliar and others, A.I.R. 1963 S.C. 185, wherein their Lordships have quoted on extract from the Privy Council decision in C.China Ramsubayya v. M.Chenchuramayya, (1947)2 M.L.J. 39 : A.I.R. 1947 P.C. 124 as follows: “Under the Hindu Law it is the”taking of a son“as a substitute for the failure of male issue; its object is two fold: (1) to secure the performance of the funeral rites of the person to whom the adoption is made: and (2) to preserve the continuance of has lineage”. Quoting the above extract, their Lordship’s have held (in A.I.R. 1963 S.C. 193): “It may, therefore, safely be held that the validity of an adoption has to be judged by spiritual rather than temporal considerations and that devolution of property is only of secondary importance.” Citing the above judgment, the learned counsel for the respondents would submit that in a Dravida community, the adoption of a girl is not valid in law before 1956 and in this case since the plaintiff belongs to Hindu Nadar community, which is part of Dravidian community, the adoption of a girl, without the custom, is not recognised in law. 24. The learned counsel for the respondents would further argue that for a valid adoption, the natural parents must give the child to the adoptive parents and the adoptive parents must take the child and would cite a judgment of the Apex Court rendered in L.Debi Prasad (Dead) by L.Rs. 24. The learned counsel for the respondents would further argue that for a valid adoption, the natural parents must give the child to the adoptive parents and the adoptive parents must take the child and would cite a judgment of the Apex Court rendered in L.Debi Prasad (Dead) by L.Rs. v. Smt.Tribeni Devi and others, A.I.R. 1970 S.C. 1286: (1971)1 S.C.J. 52, wherein it has been held: “Under Hindu Law, the giving and receiving of a boy are absolutely necessary to the validity of an adoption; they are the operative part of the ceremony, being that part of it which transfers the boy from one family to another; but the Hindu Law does not require that there shall be any particular form so far as giving and acceptance are concerned; 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.” Citing the above judgment, the learned counsel for the respondents would submit that even the evidences of P.Ws.1, 3 and 4 does not speak about the giving and taking of the adoptive child. 25. Then, pointing out from the evidence of P.Ws.3 to 5, the learned counsel for the respondents would argue that fostering is different from adoption: that even in the reply given by Arumugha Nadar in Ex.B-4, dated 16.12.1978 to Ex.B-3 notice got issued by P.W.2 it has been mentioned that your client’s sons were brought up by my client in his house and were given in marriage by him expending his own money and your client’s daughter was also actually living only in my client’s house and ultimately given in marriage as a daughter of my own client and hence Arumugha Nadar did not accept the adoption of the plaintiff and the claim of plaintiff that she is the adoptive daughter of Arumugha Nadar and Mangalakshmi is false and baseless: that since no evidence is adduced by the plaintiff that the act of giving and taking the child by the natural parents to the adoptive parents was done during her adoption, the factum of plaintiff’s adoption is not proved as required by law. 26. 26. The learned counsel for the respondents would further submit that both in Ex.A-8 notice and in the plaint, there is no specific plea for the date, place and month of adoption and witnesses present at the time of adoption but only in the evidence of plaintiff, she improved her case. Citing various instances from both oral and documentary evidence, the learned counsel for the respondents would submit that the plaintiff did not prove her correct date of birth and correct date of adoption and beyond all reasonable doubts. The plaintiffs date of birth is in the year 1948 but not 2.8.1948 as mentioned in Ex.B-32 horoscope of the plaintiff and the plaintiff has not established the plea of adoption as the place of adoption is contrary among witnesses. Quoting certain portions from the evidence of P.Ws.4 to 6 and D.W.4, the learned counsel for the respondents would submit that in Hindu Nadar community, for any good deeds, they will conduct ceremony: that the ceremony is like the Datta Homam as contemplated under the Hindu Law of Adoption, but in this case, even though the plaintiff belonged to Hindu Nadar Community, no ceremony is conducted for her alleged adoption and hence the alleged adoption of P.W.1 contrary to the custom and ceremonies of Hindu Nadar Community is not valid and sustainable in law. 27. 27. The learned counsel for the respondents would further submit that the Courts have so far recognised three types of customs, viz., (i) local custom, (ii) class custom, and (iii) family custom, but in this case, the plaintiff did not prove any of such customs and hence the alleged adoption of the plaintiff is not valid and recognised in law: that further the plaintiff did not examine any community elders such as Nattammai or Dharmakartha to speak about the custom of family or community or class and would cite a judgment of Full Bench of the Apex Court rendered in Mohammed Baqar and others v. Naim Un Nisa and others, A.I.R. 1956 S.C. 548, wherein it has been held: “The burden of proving a custom in derogation of the general law being heavily on the party who sets it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them.” The learned counsel for the respondents would also cite a judgment of the Apex Court rendered in Kochan Kanj Kunjuraman Kani v. Mathevan Kani Sankaran Kani and others, A.I.R. 1971 S.C. 1398, wherein it has been held: “Anybody who puts forward a custom must prove by satisfactory evidence the existence of the custom pleaded, its continuity and the consistency with which it was observed. A party against whom a custom is pleaded must have notice as to what case he has to meet. The opposite party apart from rebutting the evidence adduced by the plaintiff may be able to prove that the custom in question was not invariably followed.” The other judgment cited by the learned counsel for the respondents in this context is one delivered by a Division Bench of this Court in Rabi v. Jasu Leela, (2000)3 L.W. 409 , wherein when there was no specific plea in the written statement that in the community there was a custom of adoption, their Lordships have observed that the plea of custom advanced before their Lordships cannot be accepted. 28. 28. Citing the above judgments, the learned counsel for the respondents would argue that there is no pleading by the plaintiff regarding the family or communal or local custom prevailing in the Hindu Nadar community for a girl adoption and the evidence of the witnesses during trial thereby developing her case is not sustainable in law and since the evidence of the witnesses is not supported by pleadings, it is against law and principles of natural justice. 29. The learned counsel for the respondents would further argue that from the evidence it is clear that whenever a child is born, the first fifteen days immediately after the birth of the child is treated as inauspicious and since adoption of a child by one family from another family is an suspicious one and celebrated day, the case of the plaintiff that she was given in adoption on the 4th day of her birth is not believable: that further more normally, the child of 4 days longs for the warmth and company of her own mother and when the plaintiff failed and did not give any specific reason for urgent adoption within four days from the date of her birth, it throws much doubt and suspicion on the plea of adoption. At this juncture, the learned counsel for the respondents would cite a judgment of the Apex Court rendered in Kishori Lal v. Mt. Chaltibai, A.I.R. 1959 S.C. 504, wherein it has been held: “As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth.” 30. The learned counsel for the respondents would further argue that the plaintiff did not comply with the important test of severance of the adopted child from the natural parents: that the very fact that the plaintiff’s father Kumarasamy wrote a Will in favour of the plaintiff clearly shows that the plaintiff was in the custody and care of her natural father, which is against the principles of adoption and would cite a judgment of this Court rendered in Gopinath Shetty (Minor) by next friend Father K.Subbayya Shetty v. Santhamma and others, (1956)2 M.L.J. 38 , wherein it has been held: “Being a customary form of adoption its incidents and legal effect on rights to property will have to be decided according to the custom prevailing in particular families governed by such systems of law. The normal rule in every case of adoption, whether sanctioned by law or by custom or usage is that it effects a severance of the adoptee from the family of his birth. If there is any custom contrary to this rule, it is for those who rely on such custom to establish it.” 31. Citing from the evidence of P.Ws.3 to 6, the learned counsel for the respondents would submit that from the evidence it is clear that P.W.4 Amarvathi did not give P.W.6 Kuppammal in adoption to Dhanabakiyam and Velayutha Nadar: that the plaintiff filed Exs.A-1 to A-3 to prove her case of adoption, Exs.A-1 and A-2 are the marriage invitation cards of the plaintiff and Ex.A-3 is the betrothal invitation of the plaintiff wherein the plaintiff was described as the adopted daughter of Arumugha Nadar but since Exs.A-2 and A-3 are filed after the filing of the suit, they are fabricated documents and from the evidence it is clear that like plaintiff’s marriage Arumugha Nadar had conducted many marriages during his lifetime and this philanthropic nature of Arumugha Nadar was misused by the plaintiff and her mother. At this juncture, the learned counsel for the respondents would cite the judgment of the Apex Court reported in Kishori Lal v. Mt. Chaltibai, A.I.R. 1959 S.C. 504, wherein it has been further held that the performance of the marriage itself does not prove adoption which is otherwise disproved. 32. At this juncture, the learned counsel for the respondents would cite the judgment of the Apex Court reported in Kishori Lal v. Mt. Chaltibai, A.I.R. 1959 S.C. 504, wherein it has been further held that the performance of the marriage itself does not prove adoption which is otherwise disproved. 32. The learned counsel for the respondents would further argue that from the evidence it is clear that the suit property is not purchased by Mangalakshmi since she was only a housewife having no independent source of income and that the suit property is purchased by Arumugha Nadar in the name of Mangalakshmi since he was a bullock cart contractor and was a wealthy man; that even assuming that the suit property is the property of Mangalakshmi Ammal, since they did not have any issue, Arumuga Nadar is having title, right and claim in the suit property as the surviving legal heir; that it is evident that the sale deed in the name of Mangalakshmi is a benami sale and the same is also confirmed by the settlement deed executed by Arumuga Nadar. At this juncture, the learned counsel for the respondents would cite a Division Bench judgment of this Court rendered in A.Rangaswami Pillai v. A.Subramania Pillai and others, (1974)2 M.L.J. 442 , wherein it has been held: “Under Clause (7) or Sec.32 of the Evidence Act, a statement made by a person, which is contained in any deed, will or other document which relates to any such transaction as is mentioned in Sec.13, Clause (a), is a relevant fact and therefore admissible in evidence. The phrase “which relates to any such transaction” in Sec.13 qualifies the word “statement” in Clause (7) of Sec.32.” Citing the above judgment, the learned counsel for the respondents would submit that the settlement deed dated 7.7.1981 executed by Arumuga Nadar in favour of the defendants 2 to 5 is valid in law: that Arumugha Nadar was in absolute possession and enjoyment of the suit property from the date of purchase till his death and the electricity card under Ex.B-16 for the suit property stood in the name of Arumugha Nadar and he only collected the rents from the tenants who are residing at the suit property; that Arumugha Nadar mortgaged the suit property and discharged the same many a time as evidenced by Ex.B-26 and hence by the conduct of Arumugha Nadar and relationship of Arumugha Nadar and Mangalakshmi as wife and husband clearly prove that Arumugha Nadar was the real and absolute owner of the suit property and his wife Mangalakshmi is only a name lender for the purchase of the suit property. At this juncture, the learned counsel for the respondents would cite a judgment of the Apex Court rendered in Jaydayal Peddar (deceased) through L.Rs. and another v. Mst.Bibi Hazra and others, A.I.R. 1974 S.C. 171, wherein it has been held: “Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down; yet in weighing the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale, and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No.1 viz., the source when the purchase money come, is by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another.” Citing the above judgment, the learned counsel for the respondents would submit that the settlement deed executed by Arumugha Nadar is lawful and valid in law. 33. Regarding the plea of the first respondent that he is adopted son of Mangalakshmi Ammal and Arumugha Nadar the learned counsel for the respondents would submit that the respondents have proved their case both by oral and documentary evidence which are obtained prior to the suit and hence they cannot be termed fabricated: that apart in Exs.A-7 and B-27, Arumugha Nadar has admitted that the first respondent is his adopted son. At this juncture, the learned counsel for the respondents would cite a judgment of the Patna High Court rendered in Umesh Bhagat v. Smt.Ram Kumari Devi and others, A.I.R. 1963 Pat. 362, wherein it has been held: “Hindu Law - Adoption - Evidence - Application for admission to college - Declaration signed by adoptive father - Student described as his son amounts to clear admission of adoption by adoptive father and establishes adoption. The admission also binds persons claiming under him.” With the above arguments, the learned counsel for the respondents would pray to dismiss the above appeal suit. 34. The admission also binds persons claiming under him.” With the above arguments, the learned counsel for the respondents would pray to dismiss the above appeal suit. 34. In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that the appellant/ plaintiff has filed the suit praying for a partition of her half share in the suit property which is a house bearing Door No.10, Varadaraja Perumal Street, Madras-21 and put her in possession of such divided half share in the same and for past damages of Rs.4,200 and future damages at Rs.600 from the date of plaint till the date of delivery and for costs on averments such as that the plaintiff is the adopted daughter of -------------------------------------------------------------------------------- ---------------- (2001) Supp M.L.J. 93 at page 104 ---------------- -------------------------------------------------------------------------------- Mangalakshmi Ammal and her husband Arumugha Nadar since they were issueless: that she was born to Mangalakshmi Ammal’s younger sister and as a tender child of four days, she was given in adoption: that she was brought up by the adoptive parents, got her educated, celebrated the occasion of her betrothal and got her married thus all her life was revolving only around her adoptive parents: that Mangalakshmi Ammal, during her lifetime, purchased the suit property for a valuable consideration under a registered sale deed dated 20.10.1954 from out of her own funds and was in possession and enjoyment of the same till her death on 3.7.1978 and that herself and Mangalakshmi Ammal’s husband i.e., the adoptive father Arumugha Nadar inherited the suit property each of them being entitled to half share in the same. 35. 35. The further case of the plaintiff is that on account of old age, the health of Arumugha Nadar was failing and that she was attending him periodically: that taking advantage of his position of being not in a disposing state of mind and under the pretext of helping and assisting him, the first defendant and his mother, by exercise of undue influence, got some document executed in favour of the second defendant, the wife of the first defendant, purported to have been a gift settlement deed and this was not at all disclosed to the plaintiff which she was given to understand at a later stage after the death of Arumugha Nadar on 15.8.1981 and that the plaintiff was forcibly evicted from out of the house by the first defendant and his mother and they trespassed and occupied the same in an unlawful manner. The plaintiff would, however, state that on the death of Arumugha Nadar, she became the absolute owner of the suit property: that even if under the said gift settlement deed dated 7.7.1981, had Arumugha Nadar gifted anything, he could do only his half share and not the plaintiff’s half share and hence the suit for the reliefs extracted supra. 36. On the other hand, the case of the first defendant is different. Denying the allegation that the plaintiff is the adopted daughter of Arumugha Nadar and Mangalakshmi Ammal and brought up by them, he would allege that he was only adopted by them during his childhood following the rituals in accordance with the requirements of Hindu Law and he was in the custody of his adoptive parents. This defendant would further allege that the suit property was benami purchased in the name of Mangalakshmi Ammal from out of the funds supplied by Arumugha Nadar, who was a Cart contractor in the Port Trust, Madras: that the suit property was settled under a settlement deed dated 7.7.1981 in favour of his wife the second defendant: that it was only the plaintiff who attempted to disturb his possession of the suit property with the help of her mother and relatives and not on the vice versa; that however, if by chance the Court arrives at the conclusion that the suit property belonged to Mangalakshmi Ammal, being their adopted son, he is entitled to a share in the suit property. In the additional written statement, this defendant would plead that there is no custom there in the family or the community to adopt a female child and hence the alleged adoption of the plaintiff is not valid in-law. On such allegations, this defendant would seek to dismiss the suit.