IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19-12-2006 CORAM THE HONOURABLE MR. JUSTICE P.K.MISRA AND THE HONOURABLE MR. JUSTICE M. JAICHANDREN L.P.A.NO.251 OF 2001 1. K. Chandrababu 2. K. Jayakumar 3. K. Rajendran 4. K. Sethuraman 5. K. Maithili 6. K. Revathi 7. K. Senbagammal .. Appellants (Defendants 2 to 8) Vs. K. Maithili, W/o. Kasinathan .. Respondent (Plaintiff) Appeal filed under Clause 15 of Letters Patent Act against the judgment and decree of the learned single Judge dated 3.8.2000 in A.S.No.684 of 1987, reversing the judgment and decree dated 23.2.1987 made in O.S.No.89 of 1982 on the file of the Court of the Subordinate Judge, Chidambaram). For Appellants : Mr.S.V. Jayaraman Senior Counsel for Mr.N. Sankaravadivel For Respondent : Mr.R. Mohan - - - https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T P.K. MISRA, J Defendants are the appellants against the reversing decision. 2. The plaintiff / respondent had instituted the suit for declaration of title, delivery of possession and for mesne profits. The case of the plaintiff is as follows:- The disputed property belongs to Kothandapani Naidu. Plaintiff is the natural daughter of one Chinnaponnu Ammal and Srinivasan. After the death of Srinivasan, the husband of Chinnaponnu Ammal, sometimes in 1953, Kothandapani was supporting Chinnaponnu Ammal. Kothandapani had no issues and he had affinity towards the plaintiff. In 1957, Kothandapani requested Chinnaponnu Ammal to give the plaintiff in adoption and accordingly during the month of ‘Thai’ in the year 1957, Kothandapani took the plaintiff as his adopted daughter as per Hindu Customary rites. Subsequently, Kothandapani also performed the marriage of the plaintiff with one Kasinathan. After such marriage, the plaintiff used to come down to Chidambaram Town to stay in the house of her adoptive father at times. Defendants 1 to 5 are the sons, Defendants 6 and 7 are the daughters and Defendant No.8 is the widow of one Krishnasamy, the elder brother of Kothandapani. The natural mother of the plaintiff died on 18.5.1957 and the wife of Kothandapani, the adoptive mother of the plaintiff, died on 27.5.1979. Subsequently, Kothandapani died at the Pondicherry Hospital on 2.4.1980. On receiving such information, the plaintiff and her husband had came to Chidambaram. On 15.4.1980, the ceremony had taken place. Defendants 1 to 4 and Defendant No.8 had joined together and had conspired to grab the jewels left by Kothandapani and similar efforts were also made by their relatives. On 15.4.1980, in the evening, the Panchayatars gathered at the residence of one Dr.Venkataraman and such meeting continued till 2‘0 clock in the night of 15.4.1980. At that time the plaintiff has stated that she alone was entitled to possess the property of Kothandapani. At about 1’0 clock in the night, the plaintiff was informed that about 20 sovereign of jewellery would be given to her and the plaintiff was requested to put her signature on a sheet of paper. There was electricity power failure and only candlelight was available. The plaintiff was requested to put her signature on a document written on stamp papers. Since there was no other alternative, the plaintiff and her brother affixed their signatures on the paper in order to receive the jewellery. However, such document has not been read over to anybody and the contents of the said document were not known to the plaintiff. The defendants had https://hcservices.ecourts.gov.in/hcservices/ told at that time that the jewellery were not brought and the plaintiff was requested to receive the jewellery on 16.4.1980 in the morning from Dr. Venkataraman. However, the plaintiff had not received such jewellery. She returned to Chennai along with her husband. Subsequently, the plaintiff received a notice from the Office of the Sub Registrar, Chidambaram in July 1980 indicating that an enquiry would be held relating to release deed dated 15.4.1980, which had been filed by Krishnasami Naidu, the brother of Kothandapani, for compulsory registration and at that time only the plaintiff came to know that the document has been prepared as a release deed. Such document had been obtained in a fraudulent manner by fabricating false information and by undue influence and had been prepared with the help of Dr. Venkataraman. The plaintiff also raised objection before the Sub Registrar and the matter was pending. The defendants were enjoying the property in unlawful manner and had no right over it. 3. A written statement was filed by fourth defendant, who denied the allegation relating to adoption of the plaintiff by Kothandapani and his wife. Kothandapani and his elder brother Krishnasami were living in the same house till 1972 and Kothandapani use to take care of the children of Krishnasami. Chinnaponnu Ammal, the natural mother of the plaintiff, was the concubine of Kothandapani. The plaintiff and her two brothers were left without support after the death of their mother. At that stage, Kothandapani, who had no child, supported the children of Chinnaponnu Ammal. As a matter of fact, Kothandapani was also taking care of many other persons due to his generosity and he had brought up his brother’s son Rajendran and daughter. He had also similarly brought up the plaintiff and three others, namely, Jayakumar, Suresh and Vasantha. Shantha, the wife of Kothandapani, objected for maintaining the plaintiff and her brothers and Kothandapani had not adopted anybody and merely because he had maintained the plaintiff for sometime, the plaintiff cannot claim any right. At the time of the death of Kothandapani, he had certain jewellery and cash, but he did not own any other immovable property. When Kothandapani expired on 2.4.1980, his jewels were in one iron almirah. At the time of death, Kothandapoani had given the keys of the almirah to his brother-in-law and had asked him to hand over the same to Ramalaingam, the close friend of Kothandapani. Thereafter, such things were handed over suc person. Funeral rites were performed on 15.4.1980., Prior to the same, the plaintiff and her brother had approached Ramalingam and requested him to handover some jewellery. Similar request was also made by one Suresh Babu. Accordingly a meeting was convened on 15.4.1980 in the residence of Dr.Venkataraman. At that time the plaintiff had requested that some jewellery should be handed over to her and she did not claim that she was the adopted daughter of Kothandapani. The panchayatars decided to give 10 sovereign of jewellery to the plaintiff and her brothers https://hcservices.ecourts.gov.in/hcservices/ and 18 sovereigns of jewellery to Suresh Babu, which was accepted, and accordingly a release deed was executed on stamp papers, which was read over to the plaintiff and Suresh Babu, who affixed their signatures thereon. However, since goldsmith, who had been brought to weigh the jewellery, had some personal work, the plaintiff was told that the jewellery kept in almirah would be handed over on the next day and accordingly 10 sovereigns were given to the plaintiff and 18 sovereigns were given to Suresh Babu and the rest of the jewellery were given to the defendants. However, since the plaintiff and her husband wanted to leave immediately, the release deed was not registered at that time. Subsequently the plaintiff and her brother delayed in getting the document registered and therefore an application was filed for compulsory registration. At that stage, the suit was filed by the plaintiff on the instigation of her brother in order to get the properties. After the death of Kothandapani, his properties were received by Krishnasami, being the heir, and subsequently the defendants are the heirs. The movables prescribed in the plaint are not available. In the additional written statement, the defendants claimed that the suit was barred by limitation in respect of the properties included subsequently in the suit, particularly in respect of jewellery. 4. Defendant No.7 filed a separate written statement adopting the written statement of the fourth defendant. The question of maintainability of the suit under Section 77 of the Registration Act was raised. However, it was indicated that the plaintiff can file the suit in accordance with Section 77 only after the release deed is registered. 5. On the basis of such pleadings, the trial court framed the following issues :- “1. Whether acceptance of Kothandapani or plaintiff is the adopted daughter is true and is maintainable. 2. Whether it is true that the Release Deed executed by the plaintiff on 15.4.1980 has been done in a fraudulent, duress and in a distorted manner as stated ? Whether it could be a blank document due to the above ? 3. Whether it is true on the contentions that the entire rights over the properties of the deceased Kothandapani have been received by the defendants ? 4. Whether the contentions are true that Kothandapani has the absolute rights over the properties stated in the Schedule ‘B’ and ‘C’ of the plaint or not ? https://hcservices.ecourts.gov.in/hcservices/ Thereafter, further additional issues were framed on 17.2.1986 to the following effect :- 1. Whether the contentions of the 7th Defendant that this suit is not maintainable since the enquiry in the presence of the Joint Sub Registrar, Chidambaram is still pending, is correct ? 2. Whether the contentions that this suit is not maintainable since the suit has been filed without praying for the relief to cancel the document is correct ? The following additional issue was raised on 7.11.1986 :- 1. Whether the relief prayed for in respect of the jewellery in the suit is barred by limitation ? 6. While considering the original Issue No.1, the trial court held that Kothandapani had not adopted the plaintiff as the adopted daughter. Under original Issue No.2 relating to release deed, the trial court negatived the plea of the plaintiff that such release deed dated 15.4.1980 has been obtained through fraud, compulsion and misrepresentation and held that such document was genuine and valid. Under original Issue No.3, the trial court held that the defendants acquired the right over the properties after the death of Kothandapani and under original Issue No.4, it was held that no evidence had been adduced to prove the existence of ‘B’ and ‘C’ schedule properties. It was further held that the plaintiff had no right over the said properties. Under Additional issues framed on 17.2.1986 it was held that the Civil Court had jurisdiction to deal with the questions, even though some enquiry was pending before the Sub Registrar and it was further held that it was not necessary for the plaintiff to prove for cancellation of such document and since the document had not been registered, “… the defendants have not acquired any right to make claims by virtue of that document”. Under Additional Issue framed on 7.11.1986, the trial court held that the suit was not barred by limitation. On the basis of such findings, the suit was dismissed. 7. In the appeal filed by the plaintiff against such decision, the learned single Judge reversed the findings of the trial court and decreed the suit. Learned single Judge found that adoption has been proved. 8. In the present appeal, learned Senior Counsel appearing for the appellants has contended that the findings of the learned single Judge that the plaintiff has been adopted as the daughter of Kothandapani should not be sustained as such finding has been rendered without considering all the relevant facts and circumstances which had been noticed by the trial court and therefore the judgment https://hcservices.ecourts.gov.in/hcservices/ of the learned single Judge is liable to be set aside. 9. In AIR 1959 SC 504 (KISHORI LAL v. MT. CHALTIBAI), it was observed as follows :- “(7) 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. . . .” 10. The question as to whether there has been adoption has to be considered in the light of the above observation. Obviously the burden is on the plaintiff to prove that she was the adopted daughter of late Kothandapani. 11. The Plaintiff examined herself as P.W.1. Obviously the plaintiff was hardly five years old at the time of adoption. Therefore, her oral evidence relating to alleged adoption may not be of considerable importance. However, one aspect has to be noticed that neither in the plaint nor in the evidence any thing is specifically stated about the “date” on which the alleged adoption took place, though it was stated that adoption took place in the month of “Thai” in the year 1957. 12. The plaintiff has also relied upon the evidence of P.Ws.2 to 6. P.W.2’s brother’s daughter was married to Kothandapani. He claims that he had attended the function of adoption which took place at House Door No.8 belonging to Kothandapani. P.W.3 is the residence of same locality, who claims that as a family friend he had also attended the adoption function. P.W.4 is the priest who performed the adoption ceremonies. P.W.6 is another resident of same street who claims that he has seen the adoption. 13. Any discussion of oral evidence relating to adoption should obviously start with discussion of the evidence of Priest in such function. P.W.4 has been examined by the plaintiff as such priest. P.W.4 (who is a Tamil priest, whereas Kothandapani is a Telugu speaking person) claims that adoption had taken place in the month of “Thai” in 1957 and he had officiated as priest in such function. He claims that even though a priest belonging to Telugu community was available, such priest has not been called as there was difference of opinion between such priest and Kothandapani. P.W.4 claims to be the family priest of Kothandapani. However, it is surprising that he had not attended betrothal ceremony of Mythili nor marriage ceremony of Mythili. P.W.4 claims that the age of Kothandapani was 60 to 62 years at the time of the alleged adoption https://hcservices.ecourts.gov.in/hcservices/ and that is the reason why Kothandapani wanted to adopt as he was not expecting any child to be born to him and his wife. However, from other unimpeachable materials on record it is apparent that Kothandapani was in his early forties when the alleged adoption took place in the year 1957. Even though other witnesses claimed that Krishnasami, the elder brother of Kothandapani, was present at the time of alleged adoption, P.W.4 in cross-examination has stated “I do not know the elder brother of Kothandapani”. If actually P.W.4 is the family priest of Kothandapani and the elder brother of Kothandapani was present at the time of adoption as claimed by other witnesses, namely, P.W.2, P.W.3 and P.W.6, it is surprising that the family priest would not be aware of the elder brother of Kothandapani. Further more, in cross-examination P.W.4 has stated : “I do not know whether father of Mythili is alive. They said that he did not come for adoption. I told that it is not proper to give adoption without father. They said that it is their wish.” It is the admitted case of the plaintiff that her father had died in the year 1953. As a matter of fact, P.W.5, the elder brother of the plaintiff, has categorically stated in his evidence “my father died in 1953”. From the above, it is apparent that P.W.4 was obviously a got up witness who did not have much idea about the affairs of the family of Kothandapani or of the mother of the plaintiff, even though he claims that the mother of the plaintiff gave the plaintiff in adoption to Kothandapani. It does not require much knowledge in Hindu Law and far less for a priest to know that if father is alive, he is to give the child in adoption. If P.W.4 actually officiated as priest and the mother of the child gave the child in adoption, the priest would have been obviously told the reason why the father is not available (in this case had died) so that the mother had performed the ceremony of adoption. These aspects which had been taken into account by the trial court have been glossed over by merely observing that nothing important has been elicited in the cross-examination of P.W.4. When the evidence of a prime witness, that too a priest, in an adoption function, is unacceptable, it would require very strong evidence to come to a conclusion that in fact the adoption had taken place. 14. Referring to the evidence of P.W.2., the trial court had observed that such witness did not have any close relationship with the family of Kothandapani. When asked about marriage of Kothandapani, he has stated that such marriage has taken place in the year 1946-1947 and that of Krishnasamiu Naidu, the brother of Kothandapani, had taken place during 1936. However, as observed by the trial court, from the wedding invitation, Ex.B-73, it is apparent https://hcservices.ecourts.gov.in/hcservices/ that such marriage of two brothers had taken place at the same time on 11.10.1940. The genuineness of this marriage invitation card has not at all been challenged during the trial nor any contention has been raised by the plaintiff / respondent in the appeal before the learned single Judge throwing any doubt on this document. It is thus evident that P.W.2 Govindarajulu does not have much idea about the affairs of the family of Kothandapani. Similarly, P.W.2 has stated that adoption has taken place in the house of Kothandapani at Door No.40 at Karaikkattu Chockalingam Pillai Street. However, from the evidence of plaintiff and her brother, P.W.5, it appears as if the adoption took place in another house bearing Door No.8. Similarly P.W.2 in his evidence stated that Suresh has not resided in the house of Kothandapani. From the letter Ex.B-6 written by P.W.2 himself in February, 1972, it is apparent that P.W.2 wanted to convey his blessings to Suresh. It is also apparent from the evidence of P.W.2, and particularly Ex.B-68, that he had written a letter requesting for a share in the property of Kothandapani, which was not acceded by Defendant No.4. This would clearly indicate that P.W.2 had axe to grind against Defendant No.4 and other family members of Defendant No.4. These aspects, even though strongly relied upon by the trial court, have been glossed over by the learned single Judge by observing that nothing has been elicited in the evidence of P.W.2 to discard his evidence relating to adoption. 15. P.W.3 claims that he is a neighbour belonging to the very same street and therefore he had attended the adoption. Even though he claims that he lived in Karaikkadu Chockalingam Street, his name is admittedly not found in the voters’ list of that area. However, he has admitted that his name is printed in the invitation giving the address at 26/5, Thillaiamman Koil Street. He has further submitted that he cannot specifically state the persons belonging to Naidu Caste who attended the function and he cannot say the date, month and year of adoption. He had not attended “Shastiabthapoorthi” of Kothandapani nor he had attended the marriage of Krishnasami’s (Kothandapani’s elder brother) sons. Even though he claims that he had gone to the plaintiff’s marriage at West Street, he had further stated that he had not given any money as gift. The above sort of evidence hardly inspires the confidence in the veracity of the statement of P.W.3 relating to adoption and the statements made by P.W.3 in cross-examination cannot be merely explained away by stating that adoption has taken place in the year 1957, whereas the witness was deposing 30 years after. 16. P.W.6 is admittedly the co-brother in law of Kothandapani and ordinarily his evidence may be considered as worthwhile. According to his evidence the adoption took place in Kothandapani’s house at No.40, whereas the case of the plaintiff https://hcservices.ecourts.gov.in/hcservices/ elicited in cross-examination is that her adoption took place in the house at No.8, Karaikkadu Chockalingam Pillai Street and after such adoption she resided with Kothandapani with her brother at No.8 and thereafter she resided in the suit house, at House No.40. Apart from the above, P.W.6’s hostility against Defendant No.4 and other family members is admitted as such witness has stated that he is not in talking terms with Rajendran’s (Defendant No.4) family. It is also elicited from his cross-examination that he has demanded a share for his wife in the property of Kothandapani and the family of fourth defendant refused to give a share and in fact he had written relating to such aspect in Ex.B-68. If actually such person was a witness to adoption of the plaintiff by Kothandapani, it is not understood as to why he should claim a share for his wife in such property of Kothandapani. Moreover, since his demand was not met and he was hostile towards the family of Defendant No.4, it is not unnatural for him to depose in favour of the plaintiff. He is a resident of Nellikuppam in Panruti Taluk. Because of such deficiencies, his evidence does not inspire much confidence in the trial court. However, the learned single Judge without closely analysing such aspects, seems to have accepted such evidence. 17. Apart from such evidence relating to alleged adoption, P.W.5., the elder brother of the plaintiff, has also spoken about the adoption. When other evidence on record, including that of the priest, does not inspire much confidence, the interested evidence of P.W.5 does not improve the matter. Apart from the above, from his oral and documentary evidence it is apparent that he had got the plaintiff admitted to Ramakrishna School, wherein the Application Form was filled up by such witness and the plaintiff and the name of the natural father of the plaintiff was given as the father and P.W.5 was described as the guardian. Similarly it is apparent that after the death of Kothandapani, P.W.5 and the plaintiff had signed Ex.B-63 wherein certain gold jewellery (20 sovereign were given to the plaintiff and P.W.5). Even though it is claimed by the plaintiff and P.W.5 that their signatures on such document had been taken by fraud and coercion, there is hardly any evidence to accept such statement. Neither the plaintiff nor P.W.5 had raised any written objection contemporaneously at that stage and only when notice was received from the Sub Registrar’s Office for the purpose of compulsory registration of such document, an Advocate notice was given claiming that the plaintiff was the adopted daughter. Even in that notice nor in the subsequent plaint, the date of adoption has not been indicated, but it is vaguely indicated that adoption took place in the month of “Thai” in 1957. 18. Much has been tried to made out from the fact that the plaintiff was at times residing with Kothandapani. It is the admitted https://hcservices.ecourts.gov.in/hcservices/ case of the plaintiff that her mother was very close to Kothandapani, particularly after the death of the husband of the plaintiff’s mother in 1953. It is also admitted that Kothandapani was in the habit of giving shelter to many needy persons and was looking after their education. In view of such close proximity of the plaintiff’s mother with Kothandapani, the fact that plaintiff and her brother were allowed to stay in Kothandapani’s house and even Kothandapani was looking after their education, cannot be considered as a strong circumstance in favour of the alleged adoption. Similarly the fact that at times Kothandapani had been addressed as “Mama” or “Naina” by the plaintiff or even her husband is not very significant as there are several documents where Kothandapani was also addressed as uncle by the plaintiff’s husband. It is also apparent from several documents that other young persons, who had been given shelter by Kothandapani and whose educational expenses had been met by him, were also addressing him in the same vein. As a matter of fact, there are several documents which would clearly indicate that the plaintiff and her brother were obviously because of the proximity of Kothandapani