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 Managalakshmi 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 lifetime purchased the suit property for valuable consideration under the registered sale deed dated 20.10.1954 from out of their 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 Arumuga 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 Arumuga Nadar often which was objected to by the plaintiff; that under the pretext of helping and assisting the said Arumuga 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 Arumuga Nadar did not reveal anything about the said document to the plaintiff; that on the death of Arumuga 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 Arumuga Nadar, the plaintiff became the absolute owner of the suit property for the share of Arumuga Nadar devoled on her; that Arumuga 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 the 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 daughter of Arumuga Nadar and Mangalakshmi; that the plaintiff is the daughter of one Kumaraswami and Govindammal and she was not brought up by Arumuga 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 Arumuga 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 Arumuga Nadar and Mangalakshmi Ammal as their own son and even in the school and educational records of the first defendant, Arumuga Nadar was only shown as his father. 5. 5. The further averments of the written statement are that Arumuga Nadar was doing cart contractor business; that the suit property was purchased by Arumuga Nadar benami in the name of his wife, who was only a housewife without any source of income and who is hailing from a poor family; that this fact has been admitted by Arumuga 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 Arumuga Nadar only; that Arumuga 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 Arumuga 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 Arumuga Nadar, when the plaintiff along with her husband, brothers sand 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 Arumuga Nadar, he is also entitled to have a share in the suit property and further undertaking to deposit necessary Court fee to that proportionate shares 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 Arumuga 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 Arumuga Nadar and his wife Mangalakshmi Ammal but only the first defendant is the adopted son of the said Arumuga Nadar and his wife Mangalakshmi Ammal; that the suit property was purchased only by Arumuga Nadar in the name of his wife Mangalakshmi Ammal and thus he had 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 Arumuga 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 Arumuga 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 Arumuga 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 Nadar Saivite community and her adoption by Arumuga Nadar are proved by the plaintiff; that female adoption in Hindu Law is not unknown; that before Hindu Adoption 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 Mokka Kone alias Vannia Kone and two others v. Ammakutti alias Vannichi Ammal and another, 51 I.L.R. 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 marriage 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 the 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. Kasivisanathan Chettiar, since deceased, now represented by Lakshmi Achi v. S.S.S.Sv. 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 or nonexistence of the alleged custom should be forthcoming. 14. 14. Regarding the charge of the respondents that adopting four day’s child 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, in as much 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 Arumuga Nadar categorically addressed the plaintiff as his own daughter. The learned counsel for the appellant would also submit that the birth extracts of the plaintiff’s children would also clearly establish that the plaintiff delivered her children only at the residence of Arumuga 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 the suit property on 20.10.1954, till the death of Mangalakshmi Ammal on 3.7.1978, Arumuga 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 Arumuga 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 Arumuga Nadar has not mentioned about the motive for purchasing the property in the name of his wife and hence the case of the defendants falls to the ground at this stage itself. 17. The learned counsel for the appellant would further submit that at the time the suit property was purchased. 17. The learned counsel for the appellant would further submit that at the time the suit property was purchased. Arumuga 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 Arumuga 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 Arumuga 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 appellant 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 Arumuga 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.21 and 22 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 SSLC 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 Arumuga Nadar in the column or declaration; that this shows that the signature of the Arumuga Nadar was obtained afterwards on the left hand side and if Arumuga 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 Arumuga Nadar and Mangalakshmi Ammal, with such arguments, the learned counsel for the appellant would pray to allow the above appeal suit and se 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 Arumuga 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 Arumuga Nadar was the driver of the Truck Cart is false; that to prove the financial capacity of Arumuga 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 Arumuga 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 Arumuga 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 Nathuni Prasad Singh and another v. Mst. Kachinar 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 also cite a judgment of the Apex Court rendered in V.T.S. Chandrasehara 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 an extract from the Privy Council decision in G.China Ramasubayya v. M.Chenchuramayya, (1947)2 M.L.J. 39 : L.R. 74 I.A. 162: 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 his lineage”. Quoting the above extract, their Lordships 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 Dravida 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. v. Smt.Tribeni Devi and others, (1971)1 S.C.J. 52: A.I.R. 1970 S.C. 1286, 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 Arumuga 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 Arumuga Nadar did not accept the adoption of the plaintiff and the claim of plaintiff that she is the adoptive daughter of Arumuga 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. 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 plaintiff’s 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 belong 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. 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 or 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. 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. 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 auspicious 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. 398, 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. 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 Arumuga 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 Arumuga Nadar has conducted many marriages during his lifetime and this philanthropic nature of Arumuga Nadar was misused by the plaintiff, and her mother. At his juncture, the learned counsel for the respondents would cite the judgment of the Apex Court 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 Arumuga 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) of 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 Arumuga 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 Arumuga Nadar and he only collected the rents from the tenants who are residing at the suit property; that Arumuga Nadar mortgaged the suit property and discharged the same many a time as evidenced by Ex.B-26 and hence by the conduct of Arumuga Nadar and relationship of Arumuga Nadar and Mangalakshmi as wife and husband clearly prove that Arumuga 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 his juncture, the learned counsel for the respondents would cite a judgment of the Apex Court rendered in Jaydayal Peddar (deceased) through L.Rs. At his 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. Nevertheless No.1, viz., the source whence the purchase money came, 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 Arumuga Nadar is lawful and valid in law. 33. Regarding the plea of the first respondent that he is adopted son of Mangalakshmi Ammal and Arumuga 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, Arumuga Nadar has admitted that the first respondent is his adopted son. At this juncture, the learned counsel for the respondent 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. At this juncture, the learned counsel for the respondent 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. 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 Mangalakshmi Ammal and her husband Arumuga 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 Arumuga 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 Arumuga Nadar was failing and that she was attending on 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 Arumuga 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 Arumuga Nadar, she became the absolute owner of the suit property; that even if under the said gift settlement deed dated 7.7.1981, had Arumuga 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 Arumuga 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 Managalakhsmi Ammal from out of the funds supplied by Arumuga 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 either 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. 37. The trial Court, having framed the issues and additional issues, as extracted in para 8 supra, would conduct the trial in which the plaintiff would examine, besides herself, her natural mother, her senior paternal uncle and two others in support of her case and on the part of the defendants also, five witnesses would be examined, of whom the first defendant is D.W.5. They would also mark a number of documents on both sides to substantiate their respective cases. 38. From out of the witnesses examined on behalf of the plaintiff, P.W.1 is the plaintiff, P.W.2 is her mother, P.W.3 is her senior maternal uncle, P.W.4 is her aunt and P.W.5 is her cousin, being the son of the brother of Arumuga Nadar. Among these witnesses, excepting P.W.5 who would depose nothing relevant, but would answer that he does not know any of the particulars regarding the case in hand barring only a few which are irrelevant for consideration, all others have unequivocally spoken to their relationship with P.W.1 the plaintiff, her adoption by Arumuga Nadar and Mangalakshmi Ammal, the giving and taking ceremony having taken place in the presence of the plaintiff’s maternal grand father and grand mother, P.W.3 her senior maternal uncle and yet another maternal uncle called Venkatesan; that P.W.1 was brought up by Arumuga Nadar and Mangalakshmi Ammal right from her adoption on the fourth day of her birth and they only educated her and given her in marriage; that apart from that in the family, P.W.1’s aunt P.W.4 had already taken her sister’s daughter Kuppammal P.W.6 in adoption and they are still in existence. Detailed discussion of their evidence and the plaintiff’s documents will be made at the relevant places that follow. 39. Likewise, on the part of the defendants also, the first defendant’s natural father’s co-worker in the Madras Corporation viz., V.Balakrishnan would depose to the effect that D.W.1 was given in adoption to Arumuga Nadar in January, 1962 on a pongal day with the usual ceremonies. 39. Likewise, on the part of the defendants also, the first defendant’s natural father’s co-worker in the Madras Corporation viz., V.Balakrishnan would depose to the effect that D.W.1 was given in adoption to Arumuga Nadar in January, 1962 on a pongal day with the usual ceremonies. D.W.2 yet another co-worker viz., A.Sundaram would depose to the effect that he attended to the adoption ceremony of the first defendant by Arumuga Nadar. D.W.3 is none other than the natural father of the first defendant, who would depose to the effect that he attended the Arumuga Nadar’s marriage and at that time, he was a cart puller; that later on he purchased a bullock cart and then a truck; that he purchased the suit property from out of his earning in the name of his wife Mangalakshmi Ammal who is none other than the elder sister of his wife; that Mangalakshmi Ammal was not having any occupation; that he was in the suit property from 1957 to 1973; that the first defendant was born in 1958 and Ex.B-7 is the birth extract of the first defendant; that even the first defendant’s child was born in the suit property as evidenced by Ex.B-10 and would mark certain other documents such as Exs.B-11 to B-16, the insurance receipts, electricity bills etc., the first defendant’s marriage, invitation card Ex.B-19, the cart licence Ex.B-20, the birth certificate of the plaintiff Ex.B-23, the notices printed on the death of Arumuga Nadar as Exs.B-22 and B-23, the photo showing the samadhi of Arumuga Nadar as Ex.B-24, the settlement deed Ex.B-25 and the certificate for the suit property as Ex.B-26. This witness would further depose that he left the suit property in the year 1973. 40. D.W.4 is none other than the natural mother of the first defendant who would also speak to the facts very like the manner D.W.3 spoke about regarding the birth of the first defendant, his giving in adoption in favour of Arumuga Nadar and about the settlement in Ex.B-27. 40. D.W.4 is none other than the natural mother of the first defendant who would also speak to the facts very like the manner D.W.3 spoke about regarding the birth of the first defendant, his giving in adoption in favour of Arumuga Nadar and about the settlement in Ex.B-27. D.W.5 is the first defendant himself and this witness would speak about Arumuga Nadar educating him, submitting his school certificates in Exs.B-28 to B-30 showing Arumuga Nadar as his father; that even in Exs.B-19 and B-31 community certificate, Arumuga Nadar is shown as his father and he would speak about nothing else excepting to say that he was taken in adoption by Arumuga Nadar and Mangalakshmi Ammal and that he is in the suit property right from the time of his memory. 41. In consideration of these oral evidence coupled with the documentary evidence placed on record and upon hearing the learned counsel for both and on perusal of the judgment of the lower Court, the points that arise for consideration in this appeal suit are: (1) Whether the plaintiff is the adopted daughter of Arumuga Nadar and Mangalakshmi Ammal and if so, whether her adoption is sustainable in law. (2) Whether the suit property was purchased by Mangalakshmi Ammal from out of her own funds or by Arumuga Nadar benami in the time of his wife? (3) Whether the first defendant is the adopted son of Arumuga Nadar and Mangalakshmi Ammal? (4) Whether the settlement deed dated 7.7.1981 alleged to have been executed by Arumuga Nadar in favour of the second defendant is true, valid and binding on the plaintiff? (5) Whether the judgment and decree of the lower Court is sustainable in law? and (6) To what relief, if any, the parties are entitled? 42.Point No.1: It is an admitted case that Arumuga Nadar and Mangalakshmi Ammal, who are claimed as the adoptive parents by both the plaintiff and the first defendant, are issueless. (5) Whether the judgment and decree of the lower Court is sustainable in law? and (6) To what relief, if any, the parties are entitled? 42.Point No.1: It is an admitted case that Arumuga Nadar and Mangalakshmi Ammal, who are claimed as the adoptive parents by both the plaintiff and the first defendant, are issueless. On the part of the plaintiff, she would claim that she was born in the year 1949 and immediately on the fourth day of her birth, she was given in adoption by her natural parents and was taken in adoption by Arumuga Nadar and Manga-lakshmi Ammal and she was bred in their house, got educated by them as her parents and was given in marriage on 8.9.1968 and till the second child was born, she continued to occupy the suit property which was used as the residence by her adoptive parents. In support of her claim, she would not only examine herself as P.W.1 but also P.Ws.2 to 6, of whom P.W.2 is her natural mother, P.W.3 is her senior maternal uncle, P.W.4 is her aunt, P.W.5 is her cousin and P.W.6 is said to have been given in adoption prior to the adoption of the plaintiff by Arumuga Nadar and Mangalakshmi Ammal in favour of P.W.4. 43. From out of P.Ws.1 to 6, P.Ws.1 to 3 would speak to the effect of adoption of plaintiff and they have also withstood the cross-examination so far as the adoption of the plaintiff is concerned without any violent contradiction. It would not only be pleaded on the part of the plaintiff that there is a custom in their community of adopting the girls but also would cite the previous example of adoption of one Kuppammal daughter of one Dhanbagyam Ammal besides examining the said Kuppammal as P.W.6 and her adoptive mother as P.W.4. Whether it is with regard to her adoption of the custom that is prevalent in their community or family, it should be held that sufficient oral evidence has been let in on the part of the plaintiff in proof of her adoption and the custom that is prevalent in their community. Whether it is with regard to her adoption of the custom that is prevalent in their community or family, it should be held that sufficient oral evidence has been let in on the part of the plaintiff in proof of her adoption and the custom that is prevalent in their community. In support of this oral evidence, which has been made available in abundance without any major contradiction of the facts and circumstances encircling the adoption and the custom that is prevalent in the community, since P.W.6 is also admittedly her relative, the plaintiff would also mark Exs.A-1 to A-3 respectively her marriage invitations printed by her adoptive father and on the groom side and the betrothal invitation printed by her adoptive father. These documentary evidence stand unchallenged, though formal denial would come out from the defence side. All these documents bear the name of Arumuga Nadar as the adoptive father and the coming into existence of these documents in the context of her marriage and betrothal stand proof of her marriage and betrothal to have been conducted only by her adoptive parents and not by her natural parents nor is it the case of the defendants that the plaintiff’s natural parents conducted her marriage and the betrothal ceremony or even some others. Further more, in Ex.B-4, notice dated 16.12.1978, issued by Arumuga Nadar, he had addressed the plaintiff as his own daughter. Therefore, this Court is left with no option but to accept these documentary evidence to be highly reliable thereby proving that she had been brought up only by her adoptive parents till the time of her marriage. These documents coupled with Ex.A-19, dated 29.1.1985, the certificate issued by Dhanalakshmi Middle School to the plaintiff would clearly show that she had also been throughout educated by Arumuga Nadar and none else. Exs.A-5 and A-6, the birth extracts of the plaintiff’s son and daughter would bear the address of the suit property coupled with the name of the plaintiff and her husband as their permanent address at that time of the birth of her two children, the first one on 16.7.1969 and the second one on 21.11.1972 and no mention need be necessary that the plaintiff, even after her marriage, during the time of the birth of these children, was only residing in the suit property along with her adoptive parents. Arumuga Nadar and Mangalakshmi Ammal and not elsewhere. Arumuga Nadar and Mangalakshmi Ammal and not elsewhere. Unless the plaintiff had been adopted by Arumuga Nadar and Mangalakshmi Ammal as spoken about on the part of the plaintiff’s witnesses, these documents have no reason to spring-up at the relevant points of time. Moreover, the very possession by Ex.A-20 by the plaintiff would further consummate the case of the plaintiff that she was part of the family even on the date of death of her adoptive mother Mangalakshmi Ammal on 3.7.1978 as it is pleaded on the part of the plaintiff. 44. coming to the law on the adoption of the female child prior to the advent of the Hindu Adoption and Maintenance Act, 1956, the female adoption was not approved, unless custom that prevailed in the community or family or locality permitted such adoption. It is not only from the evidence of P.Ws. but also from the circumstances, one could infer that the community of the plaintiff, being Nadar, the custom was in vogue permitting female adoption. The plaintiff in consolidation of this custom that was prevalent in the community and the family would not only cite the example of one Dhanbagyam Ammal having given her daughter P.W.6 in adoption to P.W.4 but also the said Kuppammal who was given in adoption has also been examined as P.W.6. No more glaring example of previous instance than this need be necessary to conclude that in the community and the family, giving and taking in adoption of a female child as a custom was prevalent and the evidence of P.Ws.4 and 6 coupled with the pleadings and evidence of the other witnesses would stand testimony to the custom that was prevalent in both the community and the family of the plaintiff and the defendants. Therefore, since the custom is proved, the rule prohibiting the female adoption goes and absolutely there is no room for this Court to think that there had been any violation of the law in this regard." 45. Further more, the Full Bench judgment cited on the part of the learned counsel for the appellant from the decided case in Mokka Kone alias Vannia Kone v. Ammakutti alias Vannichi Ammal, 51 I.L.R. 1 (F.B.), serves an eye-opener revealing that custom has always been to a great extent superior to the written law in India and especially so in the South..... 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. In the case of S.S.Sv. Kasivisanathan Chettiar, since deceased, now represented by Lakshmi Achi v. S.S.Sv. Somasundaram Chettiar, 51 C.W.N. 374, it has been held that custom of recent days can bind the parties to the suit. Glaring example of the adoption of P.W.6 by such custom that was prevalent in the community and the family circle of the plaintiff has been brought forth not only in the pleadings but also through the evidence of P.Ws.4 and 6 since this being the very recent example. 46. Moreover, without the approval of the community men and the family circles of such adoptions of female, since the custom permitted such adoptions could not have taken place since there was every danger or the plaintiff’s family being treated as outcast in the community especially at the relevant time when there was not that much awakening among the community men as it is today. Therefore, it could be safely concluded that the custom that was prevelant in the community and the family circle has been pleaded, proved and established on the part of the plaintiff to the requirements of law and since the adoption of the plaintiff herself also comes to be proved on facts with such necessities, absolutely no doubt need be entertained for the adoption of the plaintiff by Arumuga Nadar and Mangalakshmi Ammal. Minor discrepancies such as different dates of birth between the school certificate and the panchangam as brought forth and the adoption of the plaintiff on the fourth day and in three months are quite immaterial in the context of the very adoption and the custom prevalent in the community and the family circle clearly coming to be proved on a over all assessment of the whole case pleaded and projected on the part of the plaintiff and resisted on the part of the defendant. This point is thus answered in favour of the appellant/ plaintiff and against the respondents/ defendants so far as the custom of female adoption and the very adoption of the plaintiff is established to the requirements of law. This point is thus answered in favour of the appellant/ plaintiff and against the respondents/ defendants so far as the custom of female adoption and the very adoption of the plaintiff is established to the requirements of law. 47.Point No.2: Coming to Ex.A-4 sale deed in favour of Mangalakshmi Ammal this document needs discussion since the defendants would attack this document to be not genuine further alleging that the suit property was not purchased by Mangalakshmi Ammal from out of her own funds but attributing Arumuga Nadar to have purchased the suit property under Ex.A-4 in the name of this wife Mangalakshmi Ammal benami, further stating that Arumuga Nadar was in affluent circumstance as a cart contractor earning a lot and that Mangalakshmi Ammal did not have anything for her so as to purchase the property on her own accord and that in the purchase of the suit property, Mangalakshmi Ammal was only a name lender. 48. When benami purchase is alleged on a property, the burden of proof shifts to the shoulder’s of the party who alleges the benami purchase. In this context, the requirements of proof by the party alleging benami purchase are nothing but those cardinal principles embodied in the oft quoted Apex Court Judgment cited on the part of the respondents themselves rendered in Jaydayal Peddar (deceased) through L.Rs. v. Mst.Bibi Hazra, A.I.R. 1974 S.C. 171. They are: 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. 49. So far as the first test, the source from which the purchase money came is concerned. Ex.A-4 sale deed would clearly prove to the effect that the purchase money was received by the vendors only from Mangalakshmi Ammal and none else. Arumuga Nadar comes nowhere near or in the vicinity so far as the payment of the purchase money is concerned. Therefore, at the outset, based on the recitals of Ex.A-4, it has to be preliminarily concluded that it was Mangalakshmi Ammal and not Arumuga Nadar, who paid the purchase money. Arumuga Nadar comes nowhere near or in the vicinity so far as the payment of the purchase money is concerned. Therefore, at the outset, based on the recitals of Ex.A-4, it has to be preliminarily concluded that it was Mangalakshmi Ammal and not Arumuga Nadar, who paid the purchase money. It is the case of the plaintiff that selling her jewels, Mangalakshmi Ammal purchased the property in her name. No mention need be necessary that she need not have occupied in any other manner nor did it require any other personal source of income for Mangalakshmi Ammal to have for her own. On the part of the defendants, they would allege that it was Arumuga Nadar who was a cart contractor or truck contractor and was earning a lot and purchased the property from out of his earning in the name of Mangalakshmi Ammal. For this test, the time is essential. Ex.A-4 sale deed is dated 20.10.1954. Therefore, it is relevant to consider as to what was Arumuga Nadar and what was his source of earning at that time or prior to the year 1954 so as to supply the purchase money in favour of his wife. Prior to 1954, for Arumuga Nadar having had any business there is absolutely no evidence, excepting for one of the defence witnesses coming forward to speak that in the beginning of his career, he was a cart puller and only gradually he purchased the bullock cart and then the truck etc. 50. Ex.B-20 being the latest of the documents would reveal that Arumuga Nadar had obtained the licence to make use in the Madras Port Trust area bullock cart and nothing else and therefore it could be safely concluded that he had in the year 1958 purchased a bullock cart and prior to that he was only a cart puller. In the marriage invitation of the plaintiff, in the year 1968, in Ex.A-1 Arumuga Nadar was described by himself as “carting contractor”. But, this document is dated long after i.e., 14 years subsequent to Ex.A-4 and depicting Arumuga Nadar as a Contractor, having sufficient earning in the year 1968 is not in any manner going to help the defendants in proof of their claim that he supplied the purchase money for the purchase of the suit property under Ex.A-4 benami in the name of his wife Mangalakshmi Ammal. Excepting some interested witnesses such as the first defendant’s father and mother adducing evidence to the effect that he purchased the suit property in the name of Mangalakshmi Ammal from out of his funds, absolutely no evidence relevant for consideration comes forth from the defendants side. 51. It is noteworthy that nowhere in the whole case, it comes to be known that throughout his life Arumuga Nadar purchased any property in his name or left while he died on 15.8.1981. While such is the pathetic condition of Arumuga Nadar, even during his later years when he showed himself as a carting contractor as he was only seen earning to make both ends meet and never saved even a single pie nor purchased any property from the known sources, it is difficult to think that as early as in the year 1954, Arumuga Nadar was flourishing in his cart contracting business and he had purchased the suit property from out of his funds benami in the name of Mangalakshmi Ammal. Moreover, during the lifetime of Mangalakshmi Ammal right from the purchase of the property by her on 20.10.1954 till her death on 3.7.1978 for 24 long years, absolutely there was no whisper made either on the part of Arumuga Nadar or on the part of the first defendant or by anyone else to give benami colour for the purchase of the suit property by Mangalakshmi Ammal and this theory has been brought forth only after her death either in the name of Arumuga Nadar through Ex.A-7 settlement deed or by averments in the suit by the first defendant. Absolutely no material of such nature giving benami colour to the purchase of the suit property by Mangalakshmi Ammal under Ex.A-4 came forth during 24 long years of Mangalakshmi Ammal’s life but thereafter, on her death, this theory has been invented by the defendants in the name of Arumuga Nadar who, to the known source of his income had never had any surplus money throughout his lifetime much less to purchase a valuable property of such nature as the suit property. Therefore as it is placed on the part of the plaintiff, it is safe to decide that Mangalakshmi Ammal from out of the proceeds of sale of jewels, purchased the suit property and till her death, it was Mangalakshmi Ammal who was in possession of the suit property and Arumuga Nadar was also taking shelter in the suit property being her husband, thus answering the second requirement of the judgment, the nature and possession of the property, after the purchase which is also very well in favour of Mangalakshmi Ammal only. Arumuga Nadar since being her husband, it could only be concluded that he was at the mercy of his wife and was occupying the suit property along with his wife and not in any other manner much less as the benami purchaser in the name of his wife. 52. Coming to the third test i.e., motive, if any, for giving the transaction a benami colour, it could very easily be concluded that the first defendant motivated to take away the suit property for himself as after the death of the original owner Mangalakshmi Ammal and making use of the inability of Arumuga Nadar on account of his ill health had come forward to attribute the benami colour to the suit property and nothing else. 53. For the 4th test, both the plaintiff and the defendants would claim not only to have been in possession of the suit property as the adopted children of Mangalakshmi Ammal and Arumuga Nadar but also claim to be solely related to each other besides being adopted by them though at the later stage after the death of Mangalakshmi Ammal and Arumuga Nadar, the plaintiff got ejected from being in possession of the suit property. 54. The next test, the custody of the title deeds after the sale is concerned, though the first defendant would claim that he was born and brought up in the suit property and continues to occupy the same, he is not able to produce the original title deed of the suit property and therefore the benami colour given by him for the purchase of the suit property by Mangalakshmi Ammal is unfounded. 55. 55. Regarding the conduct of the parties concerned in dealing with the property after the sale, as already discussed, for 24 years, till the death of Mangalakshmi Ammal in the year 1978, there was no murmur or mutter made on the part of the first defendant in giving any benami colour to the nature of purchase of the suit property by Mangalakshmi Ammal and he has started giving any such colour only after her death and therefore, in the absence of any such questions raised during her lifetime, it should be concluded that her genuine purchase from out of her own funds, had not only been admitted for such a long period by the first defendant but also by Arumuga Nadar himself since on his part also, no evidence comes forth to have claimed till the death of his wife that he benami purchased the suit property in her name. 56. On the part of the plaintiff, though she has sufficiently proved that, right from the date of adoption, she was residing in the suit property till she gave birth to her second child and then she was ejected from out of the suit property not only physically but also the first defendant started giving troubles to her by registering a false criminal case after the death of Arumuga Nadar as one registered in C.C. No.11420 of 1981 on the file of the Court of XV Metropolitan Magistrate, Madras, the judgment copy of which is marked as Ex.A-11, wherein on a full trial held, distrusting the evidence of the first defendant and other witnesses, the learned Magistrate would acquit the plaintiff, her husband and another, which would show only the persecution adopted on the part of the first defendant towards the plaintiff. 57. 57. For all the above discussions held, it could very easily be concluded that the benami colour attributed to the purchase of the suit property, under Ex.A-4 on the part of the defendants is neither true nor proved even to the least extent as required under law and therefore it is hereby held that the suit property was only purchased by Mangalakshmi Ammal from out of her won funds in her name validly under Ex.A-4 sale deed document true to the recitals therein and the theory attributed on the part of the defendants to the effect that the same had been purchased by Arumuga Nadar benami in the name of Mangalakshmi Ammal supplying the purchase money from out of his pocket is not only false but fabricated and intended for the purpose of the suit. Thus, this point is also answered in favour of the appellant/ plaintiff and against the respondents/ defendants. 58.Point No.3: Coming to the adoption claimed on the part of the first defendant, he would examine D.Ws.1 and 2, who are none other than the co-workers of his father D.W.3 when he was working in some capacity or other in the corporation of Madras and they would speak to the effect of participating in the adoption ceremony of the first defendant by Arumuga Nadar and Mangalakshmi Ammal. It may be remembered that at the time of the adoption in the year 1962, the plaintiff having already been adopted was growing at the residence of her adoptive parents and she should have herself witnessed the ceremony since the adoption ceremony is alleged to have taken place in the suit property itself. However, since being pitted against each other, one cannot expect such evidence from the plaintiff and we have to necessarily rely upon the other sources for the proof of this aspect. 59. D.Ws.3 and 4 are none other than the natural father and mother of the first defendant who would speak to the effect of his adoption, the giving and taking in adoption having been performed in the presence of D.Ws.1 and 2 and some others. The first defendant himself appearing as D.W.5 would speak on the defence documents to the effect that he was throughout brought up in the suit property by Arumuga Nadar and Mangalakshmi Ammal and educated by them and they conducted his marriage ceremony also. The first defendant himself appearing as D.W.5 would speak on the defence documents to the effect that he was throughout brought up in the suit property by Arumuga Nadar and Mangalakshmi Ammal and educated by them and they conducted his marriage ceremony also. Therefore, since the documents are also sufficiently supplied to the effect that the first defendant had also been grown and brought up under the custody of Arumuga Nadar and Mangalakshmi Ammal, the Court would infer his adoption though in no other manner excepting for oral evidence through the interested witnesses, the adoption is alleged to have taken place in the manner pleaded on the part of the defendant. Therefore, this Court is of the view that this adoption of the first defendant has also taken in the manner alleged on the part of the defendants and he had also been brought up in the same suit property along with the plaintiff and in the very same manner that the plaintiff’s marriage ceremony had been conducted by Arumuga Nadar and Mangalakshmi Ammal, his marriage had also been arranged and conducted by them thus holding that the first defendant is also the adopted son of late Arumuga Nadar and Mangalakshmi Ammal. Even here, the evidence and arguments put forth on the part of the plaintiff that the said adoption took place on the karinal of Pongal festival, which is not an auspicious occasion for such rituals to be held, does not hold water while deciding the aspect of adoption of the first defendant on over all consideration of various aspects involved in the case. Therefore, it is only correct to hold that the first defendant had also been adopted by the deceased Arumuga Nadar and Mangalakshmi Ammal. This point is answered accordingly in favour of the first defendant/ first respondent. 60.Point No.4: Coming to the gift settlement deed alleged to have been executed by Arumuga Nadar in favour of the second defendant, the wife of the first defendant under Ex.A-7, settlement deed dated 7.7.1981, many suspicions and mysteries shroud regarding not only the time of coming into being of this document just 38 days prior to the death of Arumuga Nadar on 15.8.1981, but also regarding the recitals said to have been made on the part of the Arumuga Nadar giving a benami colour to the purchase of the suit property by Mangalakshmi Ammal under Ex.A-4. Further it would be seen that the attestors of this document are none others than D.Ws.3 and 4, the natural parents of the first defendant himself. Thus many suspicions cast around the settlement deed under Ex.A-7 especially in view of the fact alleged on the part of the plaintiff that Arumuga Nadar was at that time ailing and in the death bed and was not in a sound disposing state of mind and that under the pretext of helping him, by exercise of undue influence, the first defendant and his natural parents D.Ws.3 and 4, joining hands with each other, have got the settlement deed executed to their dictates and the same was not genuine. 61. Moreover, it would be argued that there was no valid reason on the part of Arumuga Nadar to execute the settlement deed at his last days in favour of the second defendant. It could be seen that Mangalakshmi Ammal died on 3.7.1978 and Arumuga Nadar died on 15.8.1981 within a gap of a little more than three years. Arumuga Nadar for exactly three years, when he was in a sound disposing state of mind, never through for a moment to execute the settlement deed in favour of anyone much less the second defendant and at the fag-end of his life, while he was suffering from aliment, without being in a position to take a decision in a sound manner, he had been utilised for the purpose of signing the document prepared and made ready by the first defendant and his natural parents according to their dictates and unless there is the legal necessity of compelling circumstances for writing such a settlement deed, even without doing the same either in the name of the plaintiff, the adopted daughter or the first defendant, the adopted son but doing in favour of the second defendant and unless these laxities and lacunae are properly explained and established, merely based on the document said to have been effected in favour of the second respondent cannot be accepted in law. Absolutely, nil evidence comes forth in a free and fair manner excepting for the same interested parties D.Ws.3 and 4 coming forward to speak to the same. Therefore, it is difficult to hold that under such circumstances, the settlement would have been executed by Arumuga Nadar. 62. Absolutely, nil evidence comes forth in a free and fair manner excepting for the same interested parties D.Ws.3 and 4 coming forward to speak to the same. Therefore, it is difficult to hold that under such circumstances, the settlement would have been executed by Arumuga Nadar. 62. Moreover, since it had already been decided supra that the plaintiff is the legally adopted daughter and the first defendant is the legally adopted son of Arumuga Nadar and Mangalakshmi Ammal, on the death of Mangalakshmi Ammal, Arumuga Nadar being her husband, would become entitled to only 1/3rd share of the suit property, the other 2/3 being divided equally between the plaintiff and the first defendant as the legally adopted children. Inspite of such knowledge, it is difficult to consider that Arumuga Nadar would have gone up to the extent of denying the due either for the plaintiff or for the first defendant and to execute the settlement deed in favour of the second defendant. Absolutely, no strong evidence or circumstances brought forth in a believable manner, the manner in which this settlement had come into being and therefore it has to be firmly held that the settlement deed is not genuine nor enforceable in law nor valid to any extent. Therefore, it could be safely held that the Ex.A-7 settlement deed is an unenforceable instrument and invalid in law. This point is answered accordingly. 63.Point No.5: It is seen that the lower Court, though has assessed the facts and circumstances and the evidence, in one sentence, in a generalised manner, for no valid or tangible reason assigned, has concluded that even though the plaintiff has examined P.Ws.1 to 5 to speak about the adoption of the plaintiff by Arumuga Nadar, there is no acceptable documentary and oral evidence to substantiate this contention excepting the marriage invitations Exs.A-1 to A-3 and the interested testimonies of P.Ws. Absolutely, there is no evidence in this aspect, as though the case of the first defendant’s adoption has been proved on independent oral evidence and based on more reliable documents than that of the plaintiff and the Court below, would for no reason assigned, refuse to accept the adoption of the plaintiff but would accept the adoption of the first defendant besides agreeing with the Ex.A-7 settlement deed committed in favour of the second defendant to be true and valid, just for the simple reason that in the recitals Arumuga Nadar himself had stated that he purchased property in the name of his wife out of his funds thereby proving that the plaintiff is not the adopted daughter of Arumuga Nadar and that Arumuga Nadar only purchased the suit property benami in the name of his wife Mangalakshmi Ammal and that on the death of Mangalakshmi Ammal, Arumuga Nadar became the absolute owner of the entire property and that the settlement deed executed by him in favour of the second defendant is valid. Thus, for no proper arguments held, the lower Court would arrive at blunt conclusions to hold Ex.A-7 settlement deed to be valid and thereby denying the right of the plaintiff her half share which is nothing short of an attempt made by the lower Court to stuff the frog to imitate a buffalo. 64. The other judgments cited on the part of the respondents being on the accepted norms of law, which is agreed by this Court also to the effect that female adoption excepting where the custom prevailed was not accepted by the Hindu Law prior to the advent of the Hindu Adoption and Maintenance Act, 1956. This Court has arrived at the conclusion based on such custom that prevailed in the community and the family as deposed on the part of P.Ws. and has factually held that the plaintiff’s adoption was valid in accordance with the community and the family customs, thus in full agreement with the legal proposition propounded by various Court s cited on the part of the appellant and the respondents on this subject. 65. and has factually held that the plaintiff’s adoption was valid in accordance with the community and the family customs, thus in full agreement with the legal proposition propounded by various Court s cited on the part of the appellant and the respondents on this subject. 65. There is absolutely no valid or tangible reasons offered by the lower Court to substantiate its judgment and decree, which is quite against the legal convictions and the factual position putforth on evidence thereby requiring this Court to cause its interference as sought for on the part of the appellant. Point No.6: In result, (i) the above appeal suit is allowed setting aside 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. (ii) The suit in O.S. No.2731 of 1982 on the file of the Court of First Assistant Judge, City Civil Court, Madras is allowed as prayed for passing a preliminary decree to the effect of dividing the suit property into two equal shares by metes and bounds and to allot one such share to the plaintiff, with the consequential reliefs sought for by the plaintiff. (iii) It is further declared that the first defendant is entitled to the other half share of the suit property. (iv) Possession and mesne profits would be decided separately on proceedings initiated under O.20, Rule 12, C.P.C. However, in the circumstances of the case, there shall be no order as to costs.

Mrs. S. Gowri v. Raja alias Mohana Rajan and others