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Ajjarapu Subbarao Vs. Pulla Venkata Rama Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 102 of 1961
Judge
Reported inAIR1964AP53
ActsEvidence Act, 1872 - Sections 13, 32(5), 35, 64, 65 and 74
AppellantAjjarapu Subbarao
RespondentPulla Venkata Rama Rao and ors.
Appellant AdvocateB. Rajabhushana Rao, Adv.
Respondent AdvocateK. Ramachandra Rao and ;K. Venkateswararao, Advs.
DispositionAppeal allowed
Excerpt:
.....hand, we consider it quite in the fitness of things for ah adopted son to refer to his adoptive father as father simpliciter, that is, without the epithet 'adoptive'.according to the notion of hindus, an adopted, son is as good as an aurasa son and the reference in these documents to the 6th defendant as father is therefore perfectly in accord with this hoary notion prevalent among hindus. this document clearly recites that the plaintiff was given in adoption by p. on the other hand, questions of relevancy of documents are questions of law and can be raised at the appellate stage as well. whether it be in the matter of getting the plaintiff admitted to school or in more formal matters like proceedings in revenue court or in obtaining certificates of passing tests or in regard to..........that section 35 of the evidence act applied to them. we are unable to agree with this view of the learned judge. exhibits a.4 and a.6 are extracts from official registers maintained by public servants in the discharge of official duties enjoined by law. these registers are public documents which could be proved by secondary evidence. this class of documents clearly falls within the ambit of section 35 of the evidence act. vide in re, sriram reddy, : air1960ap253 . exhibits a.4 and a.6 should not, therefore have been rejected on the ground that the originals were not called. further more, these documents were admitted in evidence in the trial court without any demur by the defendant.8. then, we have exhibit a.3 dated 2-2-1939 which is a certified copy of an application for admission of.....
Judgment:

Gopalakrishnan Nair, J.

1. This is a plaintiff's Letters Patent Appeal from the judgment of Sanjeeva Row Nayudu, J. who, on appeal, reversed the decree of the trial Court and dismissed the suit. The corner stone of the plaintiff's suit was the claim that he was duly adopted by the 6th defendant as his son and that as a result of this adoption he and the 6th defendant constituted a Hindu joint family which owned the suit properties. In the year 1948 when the plaintiff was away, the sister of the 6th defendant (4th defen-dent), her son-in-law (1st defendant) and her grand children (defendant No. 2) and the deceased husband of the (3rd defendant) exerted undue influence over the 6th defendant who was then physically and mentally infirm and caused him to execute a gift deed of the properties in favour of the 2nd defendant and his deceased brother. Yet actual possession of the properties continued to be with the 6th defendant till some time in August 1950.

Defendants 1 to 4 trespassed upon the properties in August 1950 and reduced them to illegal possession. The plaintiff claimed past and future mesne profits from defendants 1 to 4 in respect of the properties in their wrongful possession and enjoyment. The plaintiff further alleged that in March 1950, defendants 1, 2, 4 and the deceased husband of the 3rd defendant, brought to existence a simple mortgage of the suit properties in favour of the 5ih defendant in order to give a semblance of truth and validity to the gift of the properties which was obtained by them from the 6th defendant as a result of undue influence. The plaintiff sought a declaration that this mortgage is not valid and binding on him or on the suit properties, which belong to his joint family. The suit was resisted on the grounds that the adoption set up in the plaint was false, that the suit properties were the self-acquired properties of the 6th defendant and that the gift deed and the mortgage deed, though assailed in the plaint, were genuine and valid.

2. The trial Court, on the evidence placed before it, arrived at the conclusion that the plaintiff was the adopted son of the 6th defendant and that the plaintiff and the 6th defendant formed a Hindu joint family to which the suit properties belonged. It therefore gave judgment for plaintiff. On appeal, Sanjeeva Row Nayudu, J., reversed this decision. He did so on the ground that almost the entire documentary evidence adduced on the side of the plaintiff was inadmissible and unacceptable and that the oral evidence was insufficient for establishing the case of adoption put forward by the plaintiff. The correctness of this decision of the learned single Judge has been strenuously challenged in this appeal.

3. In support of the appeal, the appellant's learned counsel has submitted that the learned single Judge was palpably in error in rejecting valuabledocumentary evidence on the side of the plaintiff and in failing to view the entire evidence in proper perspective and, assess its cumulative probative value. This attack on the part of the appellant calls for an examination of the admissibility and weight of the several documents which the learned single Judge rejected.

4. According to the plaintiff-appellant, the adoption took place on 16-4-1936. The learned isingle Judge himself has stated towards the end of his judgment as follows:

'If the adoption had really been true, during the 14 years i.e., from 1936 to 1950, there would have been abundant documentary evidence available in support of the factum of adoption.'

5. The appellant's learned counsel has vigorously pressed upon us that this is not a case where there has been no documentary evidence but one in which valuable documentary evidence has been wrongly rejected by the learned single Judge.

6. Exhibit A.4 is an extract from the register of admissions and withdrawals of the Municipal Model School, Eluru. It shows that the plaintiff was admitted into the school on 3-11-1942. The 6th defendant is shown as his adoptive father in column No. 4 of this document. Ex. A.6 is an extract from the admission register of the Board High School, Tanuku, during the year 1944-45. This document shows that the plaintiff was admitted into that school on 28-6-1944. The 6th defendant is recorded in column No. 6 of Ex. A.6 as the parent of the plaintiff.

7. These two documents, Exs. A.4 and Ex. A.6, were rejected by the learned single Judge on the ground that their originals were not summoned. He overruled the plaintiff's contention that Section 35 of the Evidence Act applied to them. We are unable to agree with this view of the learned Judge. Exhibits A.4 and A.6 are extracts from official registers maintained by public servants in the discharge of official duties enjoined by law. These registers are public documents which could be proved by secondary evidence. This class of documents clearly falls within the ambit of Section 35 of the Evidence Act. Vide In re, Sriram Reddy, : AIR1960AP253 . Exhibits A.4 and A.6 should not, therefore have been rejected on the ground that the originals were not called. Further more, these documents were admitted in evidence in the trial Court without any demur by the defendant.

8. Then, we have Exhibit A.3 dated 2-2-1939 which is a certified copy of an application for admission of the plaintiff into the Municipal Elementary Hindu Boys School, Powerpet, Eluru. In this document also, 6th defendant is shown as the parent of the plaintiff. It further purports to have been signed by the 6th defendant as the father of the plaintiff. This document was rejected by the learned Single Judge for the reasons that the original was not summoned and that evidence was not tendered to prove that the 6th defendant had signed the application for plaintiff's admission into the school. But we have the evidence of P. W. 1 and of the plaintiff himself that it was the 6th defendant who look him and put him to ihe school. the application for admission of the plaintiff was part of the official records of the Municipal School. It was endorsed by the then Head Master of the School. Exhibit A.3 was obtained from the office of the Municipality to which the school belonged. These are elements which point to the authenticity of Ex. A.3.

What is perhaps much more important is that this document was allowed to be received in evi-dence in the trial Court without any objection whatsoever from the defendants. If an objection had been raised in the trial Court, it would have been possible for the plaintiff to call for the original and prove affirmatively that it was signed by the 6th defendant. On account of the acquiescence of the defendants at the trial, the plaintiff did not have to adopt this course. It was therefore not permissible to allow the defendants to raise the objection in the appellate Court. We are therefore ot the View that it was not correct to eschew this document altogether from consideration.

9. The next document is Ex. A.15 which contains the deposition of the 6th defendant dated 7-5-1938 before the Sub-Collector, Narsapur in Revenue Suit No. 1 of 1937. In this deposition, the 6th defendant admitted that the plaintiff, who was then aged about four years, was his son. This document was rejected by the learned single Judge on the ground that the 6th defendant who is alive has not come forward to give evidence. But the evidence in the case shows that the 6th defendant had not been of sound mind, that he had lost memory and that he was too ill even to move from his bed or to sit up. It also appears that the 6th defendant was the victim of repeated paralytic strokes, one of which at least had deprived him of his power of speech while he was in its grip. In view of this evidence, it was erroneous to reject the deposition of D.6 on the ground that he himself did not enter the witness box. He was clearly incapable of giving evidence and therefore his deposition DA- 7-5-1938 was admissible under Section 32(5) of the Evidence Act. Besides the plaintiff was entitled to make use of the admission contained in the deposition of the 6th defendant against the contesting defendants who claimed right and title through the 6th defendant. We are therefore of the view that the learned Judge was in error in rejecting Ex. A.15.

10. Exhibit A.24 is the order of the Revenue Divisional Officer, Narsapur, D/- 28-5-1938 directing the plaintiff to be impleaded as a defendant in the Revenue Suit on the ground that he was the minor son ot' the present 6th defendant who was one ot the defendants in that suit. This document was rejected by the learned Judge on the ground that this is an order passed in a litigation not inter paries. The learned counsel for the appellant has urged that this document which embodies the order passed by the Revenue Divisional Officer in a Revenue Suit is admissible under Section 13 of the Evidence Act to show that the right of the plaintiff as the son of the 6th defendant was claimed, recognised and acted upon as cariy as 1938. We think this contention is entitled to prevail and we therefore hold that Ex. A.24 also was wrongly rejected by thevjearned Judge.

11. In pursuance of the order contained in Ex. A.24 the plaintiff in Revenue Suit No. 1 of 1937 impleaded the present plaintiff as one of the defendants. Exhibit A.19, D/- 6-11-1938 is a vakalat in the revenue suit executed by the 6th defendant as the father of his minor son, the present, plaintiff. This document was rejected by the learned Judge on appeal on the ground that the signature of the 6th defendant was not properly proved. But the evidence of P. W. 1 is clearly to the effect that the 6th defendant gave the vakalat, Ex. A.19, to the vakil Siva Rao. P. W. 1 also stated that he knew the hand-writing of the 6th, defendant. D. W. 4, who was one of the attestors to Ex. A.19 also admitted in his cross-examination that it bears the signature of the 6th defendant. No doubt, the signature of the 6th defendant on Ex. A.19 could perhaps have been proved in a morestrict and formal manner. But that became unnecessary to view of the total absence at the trial of any objection by the defendants to the reception of Ex. A. 19 in evidence. It was therefore not permissible for them to raise at the appellate stage an objection based on the lack of strictly formal proof of the document. This view of the matter ought to have led the learned Judge to refrain from rejecting it as inadmissible. The value of this document as also its relevancy lies in the circumstance that it shows that the 6th defendant executed the vakalat on behalf of the plaintiff as his father,

12. The other document which falls for consideration is Ex. A.21, D/- 28-3-1948 which is a certificate granted by the Circle Officer, Survey and Land Records, Kakinada to the plaintiff to declare that he passed the survey test. This document was rejected by the learned Judge on the ground that the Survey Officer had not come forward to prove this document. This, to our mind, is an altogether inadmissible ground to reject a document like this which was granted to the plaintiff and which the plaintiff himself proved in his evidence as P. W. 4. This document mentions the 6lh defendant to be the father of the plaintiff.

13. Exhibit A.22 dated 7-1-1949 and A.23 D/-6-3-1952 are publications in the West Godavari District Gazette showing that the plaintiff passed certain karnams tests. Both these documents describe the plaintiff as the son of the 6th defendant We are not able to share the view of the learned single Judge that absence of description of D.6 as the adoptive father of the plaintiff in these documents robbed them of all value. On the other hand, we consider it quite in the fitness of things for ah adopted son to refer to his adoptive father as father simpliciter, that is, without the epithet 'adoptive'. According to the notion of Hindus, an adopted, son is as good as an aurasa son and the reference in these documents to the 6th defendant as father is therefore perfectly in accord with this hoary notion prevalent among Hindus.

14. The other document we have to consider is Exhibit A.7 dated 6-9-1942 which is a registered will executed by P. W. 1, the natural father of the plaintiff and which the learned single Judge pronounced almost worthless. This document clearly recites that the plaintiff was given in adoption by p. W. 1 to the 6th defendant in the year 1936. It falls to be noticed that Ex. A.7 was executed at a time when there was no manner of dispute regarding the adoption of the plaintiff by the 6th defendant. The recitals made in Ex. A.7 are updoubtedly by a person who had personal knowledge of the factum of adoption. Indeed it was the executant of Ex. A.7 who gave the plaintiff in adoption.

15. Now, one legal aspect deserves to be pointed out at some length. The learned single Judge has, in respect of the majority of documents mentioned above stated that they are inadmissible on account of the provisions of Section 65 of the Evidence Act. This view docs not appear to us to be tenable. The rule in Section 65 excluding secondary evidence is not so rigid as to be enforced even if no objection was taken at the trial by the party against whom the secondary evidence was offered. When a party has waived proof of circumstances justifying the giving of secondary evidence, he cannot raise the objection in appeal, vide Bacharbhai v. Mohanlal, AIR 1956 Bom 196. Adocument can be treated as duly admitted where its admission without being proved is not objected to by the party affected vide Latchayya Subudhi v. Seetharamayya, 84 Ind Cas 921 : (AIR 1925Mad 257). Where the objection to be taken is not that the document is in itself inadmissible. but that the made of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before it is marked as exhibit and admitted. A party cannot lie by until the case comes in appeal. A strictly formal proof might have been forthcoming had it been insisted on at the trial. The question of proof of a document is a question of procedure and can be waived. On the other hand, questions of relevancy of documents are questions of law and can be raised at the appellate stage as well. There was thus no justification for the learned Judge to have rejected the documents on the mere ground that they are certified copies and not the originals when, as a matter of fact, no such objection was ever taken in the trial Court or even in the memorandum of appeal before the learned Judge.

16. If all these documents are held to be admissible and taken into consideration, it will be seen that the plaintiff has, ever since the adoption, been treated as the son of the 6th defendant and that whenever an occasion arose for naming the father of the plaintiff it was consistently stated that the 6th defendant was his father. Whether it be in the matter of getting the plaintiff admitted to school or in more formal matters like proceedings in revenue Court or in obtaining certificates of passing tests or in regard to publication of results of examinations, it is seen that the consistent conduct has been for the plaintiff to treat himself as the son of the 6th defendant and for the 6th defendant to regard himself, as the father of the plaintiff. It is indubitable that this relationship sprang from the adoption of the plaintiff by the 681 defendant in the year 1936.

We find it extremely hard to believe that these documents commencing from a time when the plaintiff was only 5 or 6 years old and continuing right upto his adolescence were all fraudulently. fabricated by the natural father of the plaintiff or by any one else. On the contrary, it accords with good reason to say that the relationship between the plaintiff and the 6th defendant as the adopted son and adoptive father was so well known that it was made mention of in every document and on every appropriate occasion since the adoption. The consciousness of the inconvenient fact of adoption seem? to have actuated the recitals in Ex. B. 2, the registered will got executed by the 6th defendant in favour of the second defendant, his deceased brother and the 4th defendant. This will has been severely attacked in the plaint and at the trial as one brought about as a result of undue influence exerted by the 4th defendant, her son-in-law and two grand-sons on a lone, ill and mentally enfeebled 6th defendant. If really the 6th defendant had not adopted the plaintiff previous to Ex. B.2, there was no reason why it should have been rather prominently recited in Exhibit B.2 that the 6th defendant had made no adoption at all. Exhibit B.2 really betrays an apprehension that its creation would clash and ill accord with the accomplished fact of an anterior adoption. This fear appears to have led to the aforesaid recitals in Ex. B.2 made In a vain bid to put the adopted son altogether out of the way.

17. It cannot be gainsaid that the oral evidence in the case clearly points to the truth and validity of the adoption. Apart from the evidence of the natural father as P. W. 1 and his relations P. Ws. 5 and 7, there is the evidence of P. W. 2, P. W. 3 and P. W. 6 who are independent witnesses and against whom no motive or bias was even suggested in cross-examination. The documentaryevidence in the case already adverted to is perfectly in consonance with the acceptable oral testimony oil the side of the plaintiff. As against this, the evidence on the side of the defendants is all too halting and hesitant. The witnesses on the side of the defendants could not categorically assert that the plaintiff was not adopted by the 6th defendant. All that they could state was that they were not informed about it, that the 6th defendant did not tell them so and the like.

18. Considering all the aspects, we have no hesitation to hold that the conclusion of the trial Court that the adoption set up in the plaint was true and valid is sound and tenable and that the contrary view reached by the learned single Judge on appeal is erroneous and unsustainable.

19. It is not contended on behalf of the respondents in this appeal that even if the adoption be true, the suit properties will still not be the joint family properties. No ground has been shown to us to differ from the finding of the trial Court that the suit properties are joint family properties which the 6th defendant was. not entitled to gift away under Ex. B.3. Nor does there appear any good reason for not declaring the mortgage of the suit lands in favour of the 5th defendant invalid and enforceable or for not passing a decree for possession against defendants 1 to 4. The liability of defendants 1 to 4 to mesne profits has not been seriously disputed in this appeal and really could hot have been. The quantum of mesne profits fixed by the trial Court was based on the evidence on the side of the contesting defendants themselves. It could not therefore be successfully challenged before us.

20. It emerges from the foregoing that this appeal has to be allowed and the decision of the learned single Judge set aside and the decree passed by the trial Court restored. The plaintiff will get costs of this appeal. The 1st respondent will pay the court-fee payable to the Government.


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