D.G. PALEKAR, J.
1. This is an appeal by the first defendant against the judgment of the High Court of Madras in Appeal No. 491 of 1966 arising out of Original Suit No. 113/1950 on the file of the Subordinate Judge's Court, Tiruchirapalli. The suit was filed by K.S. Srinivasan who is Respondent 1 before us. He was a minor at that time represented by his next friend and natural father Rajagopala Iyengar. The suit was for a declaration that the plaintiff was the adopted son of one Singam Iyengar (Jr.) and that he was entitled to joint management with the first defendant K. Srinivasa Iyengar of the suit trust, hereinafter referred to as the ‘Pathashala Trust’.
2. A few facts will be necessary to be stated. The Pathashala Trust which was known as the “Tennacharya Sampradaya Vidya Pathashala Dharmam” was founded by one Singam Iyengar (Sr.), a very rich and pious Vaishnavite Brahmin, on April 24, 1913. The founder had only one son Kuppuswamy from whom he was divided, after partition, on January 18, 1913. In pursuance of the endowment, Singam Iyengar (Sr.) executed a deed of Settlement on September 3, 1913 (Ext. B-47) by which properties mentioned in the ‘A’ Schedule were settled in favour of the trust. Under this settlement Singam Iyengar (Sr.) constituted himself the first Manager of the trust and after his death his son Kuppuswamy was to be the Manager. The settlement deed further proceeded to declare that after the son's death, the son's nominee and the nominee of each subsequent nominee shall be the Manager. In default of nomination, the District Judge was to nominate the Manager and his nominee again had the right to appoint his nominee. The settlement deed also provided for maintenance allowance being paid to some of the descendants in the family.
3. Kuppuswamy died on July 1, 1916 leaving behind him three sons, Singam Iyengar (Jr.) Kasthuri Renga Iyengar and K. Srinivasa Iyengar, the present Defendant 1. Since Kuppuswamy had died and the devolution prescribed by the settlement deed of 1913 had failed, Singam Iyengar (Sr.) executed another deed on August 6, 1924 (Ext. B-53) appointing himself as the first Manager and, after his lifetime, his grandson Kasthuri Renga Iyengar as Manager with power to nominate his successor. On April 6, 1933 Singam Iyengar (Sr.) dedicated some more properties to the Pathashala trust and the allowance to the members of the family were also increased. Ten days later i.e., on April 16, 1933 Singam Iyengar (Sr.) died.
4. After the death of Singam Iyengar (Sr.) Kasthuri Renga Iyengar who was his nominee (Ext. B-53) entered upon the management of the Pathashala trust and he continued to be Manager till September 10, 1940 when he died without exercising the power of nomination in respect of the Pathshala trust. His brother Singam Iyengar (Jr.) had pre-deceased him on February 1, 1934. His only surviving brother was Srinivasan, Defendant 1. Srinivasan entered on the management of the Pathshala trust on September 27, 1940. He wrote to the District Judge asking him to exercise the power of nomination and informing him that he as the sole surviving descendant of the founder had assumed the management of the Pathashala trust. Since Regulation VII of 1817 was in force at the time, the District Judge, it appears, referred the point to the Board of Revenue, Madras on October 15, 1940. The Board of Revenue made certain enquiries through the Collector and accepted the latter's recommendations in respect of the suitability of the first defendant as Manager of the Patliashala trust, Defendant 1, therefore, continued to work as Manager.
5. As already stated Singam Iyengar (Jr.) had died on November 1, 1934 leaving behind his widow Lakshmi Ammal. He had no son by her but four daughters Kunjarmmal, Srirangammal, Kothai and Komalammal. After the death of her husband Lakshmi Ammal found herself involved in litigation with her brothers-in-law, first with Kasthuri Iyengar and later with the first defendant. On August 16, 1942 Lakshmi Ammal executed a general power of Attorney in favour of Rajgopala Iyengar who was her adviser in her family affairs and in the litigation against Defendant 1. She finally failed in the litigation in 1949 but in the meantime several things happened one of them being that on December 12, 1946 Lakshmi Ammal purported to adopt K. Srinivasan, the minor son of Rajgopala Iyengar. The adoption ceremony is alleged to have taken place on December 12, 1946. There was a contemporaneous adoption deed (Ext. B-41) which was duly registered on December 13, 1946. On March 15, 1948 Lakshmi Ammal gave notice to the first defendant demanding allowance for her adopted son—the present plaintiff. In response, the first defendant disputed the adoption. After Lakshmi Ammal's litigation with Defendant 1 finally failed in the High Court in 1949, Lakshmi Ammal cancelled on November 17, 1949 the power of Attorney executed by her in favour of Rajgopala Iyengar. On November 24, 1949 Lakshmi Ammal, for the first time, denied having made the adoption of the plaintiff. Thereupon the plaintiff by his next friend and natural father Rajgopala Iyengar filed Original Suit No. 277/49 against Lakshmi Ammal alone for a declaration that he was her adopted son. While that suit was pending, he filed on April 18, 1950, Original Suit No. 113/50 out of which the present appeal arises. In this suit Srinivasan Iyengar is Defendant 1, Lakshmi Ammal is Defendant 2 and Jambagalakshmi Ammal, the widow of Kasthuri Renga Iyengar, is Defendant 3. The suit was principally against Defendant 1. The two widows Defendants 2 and 3 were made only pro forma parties. The suit was for a declaration that he was adopted son of Singam Iyengar (Jr.) and in that right was entitled to be associated with the management of the Pathashala trust along with Defendant 1 Srinivasan Iyengar. The contention was that on the death of Kasthuri Renga Iyengar in 1940 without exercising the power of nomination, there had been a failure as to the mode of devolution and hence the managership had reverted to the founder's heirs. The plaintiff claimed that being the adopted son of Singam Iyengar (Jr.) he was the heir of the founder entitled to be in joint management with the first defendant.
6. That claim was disputed by Defendant 1. He denied that the plaintiff had been duly adopted by Lakshmi Ammal, Defendant 2. He also alleged that after the death of Kasthuri Renga Iyengar in 1940 he was alone entitled to the management not only on the basis of the deeds of settlement but also by reason of the appointment as Manager by the District Judge. He further contended that after Kasthuri Renga Iyengar's death in 1940, he was the only heir of the founder Singam Iyengar (Sr.) and the plaintiff who was subsequently adopted could not divest the estate which had already vested in him.
7. It may be mentioned here that Original Suit No. 277/49 filed by the plaintiff against his adoptive mother, Defendant 2, was decreed by the trial court on January 31, 1951. From that decree, Defendant 2 filed an appeal in the High Court being AS 244/52. We are informed that the appeal abated on her death in 1957. The net result has been that in a litigation against the adoptive mother the plaintiff has been finally held to be the validly adopted son of Singam Iyengar (Jr.). That decision is, indeed, no bar against Defendant 1 disputing the adoption. Voluminous evidence was, therefore, led in the present suit with which we are concerned.
8. The trial court dismissed the suit holding that the adoption was not proved. That finding has been reversed by the High Court. The High Court has further held that the plaintiff was entitled by reason of the adoption to be associated with the management of the Pathashala trust along with Defendant 1. Accordingly, a decree was passed in favour of the plaintiff granting joint possession and management of the trust properties along with the first defendant.
9. Aggrieved by that decision, Defendant 1 has come to this Court in appeal by certificate.
10. The principal argument advanced before us was with regard to the factum of adoption. Mr Gupte, on behalf of the appellant, admitted that there is a large body of documentary evidence on record to show that the plaintiff was supposed to have been adopted by Lakshmi Ammal. His contention is that there is really no substantial evidence either with regard to the giving and taking or the religious ceremonies performed at the time of adoption.
11. The case of adoption for the plaintiff was that Lakshmi Ammal wanted to make an adoption. Her husband Singam Iyengar (Jr.) who died in 1934 had left a will and had authorised her to make an adoption. In about 1946 Lakshmi Ammal seriously contemplated taking a boy in adoption. At that time she had three daughters, the fourth daughter Kothai having died earlier in 1943. Of there three daughters, Kunjammal and Srirangammal had been married and the third daughter Komalammal was unmarried. Kunjanmmal had two sons and Srirangammal had one son. Naturally Lakshmi Ammal first thought of adopting one of her daughters sons. Since Srirangammal had only one son the adoption of that son was out of the question. Kunjammal, on the other hand, had more than one son. So she asked Kunjammal to give one of her sons in adoption. Kunjammal, however, hesitated because the estate of Lakshmi Ammal had now dwindled and she suspected that it had got into debts with which she did not want to burden her son. In this state of affairs, Lakshmi Ammal turned to Rajgopala Iyengar who, at that time, was her adviser and guide in the litigation which she was pursuing against Defendant 1. Rajgopala consulted his wife and finally agreed to give the minor plaintiff, his son, in adoption. Invitations were sent for the adoption which was to take place on December 12, 1946. Lakshmi Ammal also asked Rajgopala to go to a pleader and get a proper draft of the adoption deed made by him. Thereafter a pandal was built in front of Lakshmi Ammal's house for receiving the guests and on the morning of December 12, 1946 Lakshmi Ammal took the plaintiff boy in adoption after performing ceremonies in the presence of a large body of people. The adoption deed was written by the priest who officiated at the time, namely, Tirumalai Iyengar. The adoption deed (Ext. A-9) was attested by not less than 12 persons. The first attestor was one Ramiah who however, could not be called as a witness on behalf of the plaintiff because he was engaged in a litigation with the minor plaintiff and Lakshmi Ammal at the time. The second attestor was one Rajgopala Iyengar who also could not be called as a witness because he was counsel for the third defendant, namely, Jambagalakshmi Ammal. The third attestor was M.S. Srinivasan and he is PW 3. The fourth attestor Ghanshamdas died in 1950. The fifth attestor Viswalingam is PW 4. The sixth and seventh attestors have not been examined by either side. The eighth attestor Dharmarajan has given evidence on behalf of Defendant 1 and is DW 7. The ninth attestor Narasimhachari had left for Bombay and was not available. The tenth attestor is Advocate R. Shenadri Iyengar PW 7. The eleventh attestor has not been examined for either side. The twelfth attestor is the writer of the document, Triumalai Iyengar, who was examined as DW 3. PW 7 Seshadri Iyengar, advocate, being consulted, had prepared the draft. He says he had gone to the house of Defendant 2 of Lakshmi Ammal, not at the time of the adoption in the morning but later in the afternoon. He met Lakshmi Ammal and talked to her and asked her if the adoption had taken place and she replied in the affirmative. When he was informed that the adoption deed had been executed in accordance with the draft prepared by him and the deed itself was brought to him, he signed it as a witness. The next day i.e., on December 13, 1946 the local Sub-Registrar was called to the house of Defendant 2 and, according to the Sub-Registrar, Lakshmi Ammal admitted before him that she had adopted the plaintiff and had executed the adoption deed. The High Court on a scrutiny of the evidence of the witnesses produced on behalf of the plaintiff and the defendants accepted the plaintiff's case that not only an adoption deed was duly executed but also that on the morning of December 12, 1946 a regular adoption ceremony had taken place. It is rather interesting to see that Tirumalai Iyengar who was the scribe of the adoption deed and who had also officiated as a priest at the time of the adoption and had described himself as a Vaidikam in the deed itself has come forward to say that no ceremony at all was performed. His evidence was rightly discarded. At the time of the adoption deed he was in the employment of Lakshmi Ammal but by the time he had to give evidence he had changed his allegiance. He went to the length of saying that he was not the purohit of the family and did not know how to perform the rites. There is no doubt that this witness is a liar. Neither he nor DW 7 Dharmarajan could be believed when they say that there was no adoption ceremony at all and they merely signed the document without knowing its contents. On the other hand, the witnesses examined on behalf of the plaintiff were quite reliable. Srinivasan, PW 3 is a local man and he says that he was employed at the time in the Southern Railway. Tirumalai, DW 3 called him for the ceremony. He also says that after the ceremonies were over the adoption deed was read over to the assembled guests. There was a homam and DW 3 performed the ceremonies. The plaintiff was also made to sit on the lap of Lakshmi Ammal. According to him, Dharmarajan, DW 7 took part in chanting the mantras and one Sundaram was reading the mantras from a book. Vishwalinga, PW 4, who is a man of substance says that he was present at the time of adoption and there was an assemblage of 50 or 60 people. Tirumalai was performing the homam ceremony and during the course of the ceremony Lakshmi Ammal asked Rajgopala Iyengar to give his boy in adoption to her and thereupon the plaintiff was given by the wife of Rajgopala Iyengar. He admits that there was a big pandal in front of the house. The importance of these two witnesses namely Srinivasan, PW 3 and Vishwalingam, PW 4 is that these are witnesses who have attested the adoption deed and their evidence is more in consonance with the contents of the document contemporaneously prepared Their evidence gets considerable support from the evidence of Seshadri Iyengar, Advocate. He was examined as PW 7. He is a senior advocate practising at Tiruchirapalli from 1921. It appears that in some former litigation he had appeared on behalf of Lakshmi Ammal and it was only natural that when Lakshmi Ammal asked Rajgopala Iyengar to go and get a draft of the adoption deed, this witness prepared the draft and give it to him. He says also had been invited to attend the adoption ceremony in the morning but owing to other pre-occupations he could not attend in the morning but he made a point to go to the house in the afternoon and see things for himself. He says that on meeting Lakshmi Ammal he asked her whether the adoption had taken place. She replied in the affirmative and said that she had also executed the adoption deed. One more point to be noted in his evidence is that there was a pandal in front of the house. He had known from Rajgopala Iyengar that Lakshmi Ammal had first wanted to adopt one of her daughter's sons but since they were not willing she wanted to adopt Rajgopola's son. He signed the adoption deed as a witness not in token of having seen the adoption ceremony himself but in token of the fact that he had prepared the draft of the adoption deed and on questioning Lakshmi Ammal that same afternoon he was informed by her that the adoption had taken place and she had also executed the adoption deed.
12. There is no dispute that regular invitations had been got printed on December, 10 and distributed. A pandal had been built and there is evidence to show that Lakshmi Ammal had been fined by the Municipal authorities for putting up the pandal without the permission of the Municipality. If people take the trouble of printing and distributing invitation cards, put up a pandal and execute an adoption deed, it would be rather strange that they should not go through the ceremony of adoption. It is not as if there was any barrier to the adoption. Nor is it the case that there was any such urgency of formally executing the adoption deed on December 12, 1946, without loss of time for performing the ceremony. Lakshmi Ammal was very keen to adopt a son. She was asking her daughter Kunjammal to give one of her sons in adoption. Kunjammal was obviously in two minds. Some of her letters to Lakshmi Ammal are on record and they clearly go to show her mind. Exts. A-22, A-23, A-24 and A-25 are important in this respect. These letters do not bear any date but there is no doubt that they were written by Kunjammal to her mother from the several places where she was living with her husband in the months prior to the adoption. Plaintiff's father Rajgopala Iyengar came into possession of these letters when as the power of Attorney holder of Lakshmi Ammal and the natural father of the adopted son, he took possession of several documents from Lakshmi Ammal. These letters clearly go to show that Kunjammal wanted to be fully assured that her son will inherit the estate and not mere debts. A stage came when she put forward the plea that even if she and her husband were willing to give one of their sons in adoption, Lakshmi Ammal will have to get the consent of Kunjammal's mother-in-law. In fact as a post script to Ext. A-24 she says “if you want to take any one else, you can very well do so. Nothing could be done without my mother-in-law's consent”. In the next letter Ext. A-25 also she repeats this sentiment. In fact she wants to inform her mother that she does not want to do anything without the consent of her mother-in-law. These letters had been discarded by the trial court. In its opinion they had not been proved by calling Kunjammal. But the High Court was right in admitting these letters in evidence. Rajgopala Iyengar who was familiar with the writing of Kunjammal has given evidence that these letters had been written by Kunjammal to her mother. He has also explained how he got the custody of the same. Kunjammal is living. She could not possibly be called as a witness by the plaintiff as her interest was adverse. On the other hand, Lakshmi Ammal, Defendant 2 or Defendant 1 — her uncle, could have easily called her and she could have demolished the whole story of the plaintiff by denying she wrote these letters. In our opinion, it is very clear from these letters that although Kunjammal at one stage would have liked to give one of her sons in adoption to her mother, she later on, changed her mind and put off the request made by her mother by pointing out that she could do nothing without her mother-in-law's consent. Lakshmi Ammal had, therefore, no other alternative but to adopt the son of Rajgopala Iyengar whom she knew very well and in whom she had undoubtedly great confidence. That the adoption had taken place can be seen from some other letters of Kunjammal which were received by Lakshmi Ammal after December 12, 1946. Ext. A-35 is a post-card written by Kunjammal to her mother on December 12, 1946 i.e., on the very day the adoption took place. The letter begins this way. “I think you could have stopped the adoption”. It is obvious from this post-card that from the invitation received by her she must have definitely come to know that Lakshmi Ammal was going to take the plaintiff in adoption on December 12, 1946. The letter shows that Kunjammal had suddenly changed her mind and was now of the view that when her son was available for adoption an outsider should not be adopted. To that effect, she says, she had already spoken to her on the phone and sent a telegram on the previous day. It is very clear from this post-card that Kunjammal was now frantically asking her mother to stop the adoption and take her son in adoption. Obviously this was too late, because already invitations had been sent out and Lashmi Ammal who was a member of a very respectable family could not possibly change her mind at the last moment. Then on December 14, 1946, we have a second letter Ext. A-36 from Kunjammal to Lakshmi Ammal. The tone of this letter is very sarcastic but it leaves no doubt that she has come to know from her mother herself that she had already adopted the plaintiff. She says “Please sit at a place and think whether what you have done is proper or good. This would not be pleasing to my father's soul even. But you may say that it was we that refused first. It is true. If you had a whole-hearted desire, you could have stopped, having known the information in the night and certainly could have. From that what you had at heart is very clear, that you asked for it in a formal manner”. In other words, she wants to suggest that Lakshmi Ammal did not really want to adopt her son and that when she made the request she was only observing a formality. Then again she says “Let Raju's son rule; we have become strangers”. Raju is Rajgopala Iyengar. This letter is tell-tale. Kunjammal plainly came to know that the adoption was over and her own desire with regard to her son had now been shattered,
13. Numerous other documents after December 12, 1946, go to show that Defendant 2 looked upon the plaintiff as her adopted son and he was shown as the son of Singam Iyengar (Jr.) in public records. In our opinion, the High Court was right in holding that the minor plaintiff was adopted by Lakshmi Ammal after due ceremonies on the morning of December 12, 1946.
14. The next point on which Mr Gupte wanted to address us was in respect of the finding of the High Court to the effect that as the adopted son of Singam Iyengar (Jr.) the plaintiff was entitled to joint management and possession of the Pathashala trust. The suit was for declaring the plaintiff's title in this respect and for associating him with Defendant 1 in the management of the trust. Mr Gupte contended, relying on Ext. B-47, the deed of settlement, dated September 3, 1913, that Defendant 1 would be the sole Manager of the trust. There is no dispute that Kasthuri Renga Iyengar died without making a nomination. One thing is clear from the settlement deed and it is that there could be only one Manager at a time. Defendant 1 claimed to be the Manager not only on the basis of the deed of settlement but also on the ground that his appointment as a Manager had been made by the District Judge or at any rate by a competent authority. He also contended that he was entitled to be the Manager of the Pathashala trust as he was the only male heir of the founder's family in existence at the time of Kasthuri Renga Iyengar's death in 1940. As the point was being developed, Mr S.T. Desai, appearing on behalf of the plaintiff (Respondent 1) made the offer that the parties should approach the District Judge and leave it to the District Judge to nominate any one male member of Singam Iyengar's (Sr.) family as the Manager of the trust. To this the appellant (Original Defendant 1) agreed through Mr Gupte. Respondent 2 claims to be the adopted son of original Defendant 3 who is now dead. His adoption is disputed and the High Court did not want to express any opinion on that point. It is open to Respondent 2 to show that he too had come into the family of Singam Iyengar (Sr.) by adoption. We do not express any opinion on his claim. While holding the plaintiff (Respondent 1) to be the duly adopted son of Singam Iyengar (Jr.), we direct that he and the appellant (Defendant 1) do approach the District Judge, Tiruchirapalli, with a request to nominate a suitable Manager of the Pathashala trust from amongst the male members of the family of Singam Iyengar (Sr.) in accordance with the settlement deed Ext. B-47, dated September 3, 1913. It is further declared that the person so nominated by the District Judge shall be entitled to manage the Pathashala trust in accordance with the provisions made in Ext. 47 supplemented by Ex. B-53, dated August 6, 1924. There shall be no order as to costs in this appeal.