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S. Ramakrishna Pillai Vs. Tirunarayana Pillai and Nine ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1932)62MLJ116
AppellantS. Ramakrishna Pillai
RespondentTirunarayana Pillai and Nine ors.
Cases ReferredGaruradhwaja Prasad v. Superundhwaja Prasad
- - x) to the first defendant expressing a strong desire to adopt and inviting him to come and discuss the matter. if that be granted, then i think the plaintiff is clearly estopped from setting up his claim. as regards the first defendant's claim the high court observed that the plaintiff, that is, gopalaswami, had withdrawn his contest, and both adoptions were declared well proved, and the case was then remanded for the: when this too failed, and after a delay not satisfactorily accounted for, he files the present suit. this view is well enough supported by authority. as to the value of this tree, it is not suggested that on the occasion of its preparation the first defendant's adoption was in dispute and the only specific reason for showing the kannankulam branch seems to have been.....curgenven, j.1. the main question which this appeal raises is whether the plaintiff or the first defendant is the nearest reversionary heir to the estate of one venkatakrishna pillai who died on the 24th october, 1899 leaving considerable property in the tanjore district. the following genealogical table illustrates the rival claims:kuttikalivaraya|_________________________________________| |venkatachala chandrasekhara| || ________________________| | |chinnayya tirumalairaya ramanuja| | |venkataranga tiruvengada venkatachala| | |venkatachala gopalasami tirunarayana| (adopted) (1st deft.)alamelu achi|___________________________________| | |venkatakrishna gopalaswami chellam|ramakrishna(plaintiff).2. it will be seen that the plaintiff, ramakrishna pillai, is the son of venkatakrishna's.....

Curgenven, J.

1. The main question which this appeal raises is whether the plaintiff or the first defendant is the nearest reversionary heir to the estate of one Venkatakrishna Pillai who died on the 24th October, 1899 leaving considerable property in the Tanjore District. The following genealogical table illustrates the rival claims:

Kuttikalivaraya|_________________________________________| |Venkatachala Chandrasekhara| || ________________________| | |Chinnayya Tirumalairaya Ramanuja| | |Venkataranga Tiruvengada Venkatachala| | |Venkatachala Gopalasami Tirunarayana| (Adopted) (1st Deft.)Alamelu Achi|___________________________________| | |Venkatakrishna Gopalaswami Chellam|Ramakrishna(Plaintiff).

2. It will be seen that the plaintiff, Ramakrishna Pillai, is the son of Venkatakrishna's sister, Chellam, while the first defendant claims to be the adopted son of one Venkatachala Pillai shown as an agnate belonging to another branch of the family. The left and right hand branches are referred to in the evidence as the Kannankulam and Koppayam branches respectively. The fact of this adoption is disputed and it is further disputed that the adoptive father was related to the last male holder in the manner shown in the table. The learned Subordinate Judge has upheld the first defendant's claim upon each of these points and the plaintiff appeals.

3. On Venkatakrishna's death without issue the estate devolved for her life upon his mother, Alamelu Achi, who died on the 7th April, 1905. Thereupon the first defendant took possession of the property claiming as the next reversionary heir. At the time the plaintiff set up, not his own right, but a claim that his son Krishnaswami had been adopted by Alamelu Achi just prior to her death. This claim he succeeded in compounding with the first defendant by means of a deed of indenture under which the plaintiff's son received a certain amount of the property in exchange for the withdrawal of this claim, This document was executed in May, 1905 and it was not till 1917 that the plaintiff instituted the present suit. The issue with regard to the 1st defendant's reversionary right is attended by two preliminary objections to the plaintiff's right to raise it, it is contended, in the first place, that he is precluded by reason of his subscription to the indenture referred to and secondly, it is said to be barred by res judicata.

4. The question of estoppel arises out of the following facts. In January, 1905, Alamelu Achi addressed a letter, (Ex. X) to the first defendant expressing a strong desire to adopt and inviting him to come and discuss the matter. It is clear that his consent was sought in the belief that he had a reversionary interest in the estate, a belief which, as the evidence will show, had been widely recognised by members of the family for a long period. The first defendant wrote back discouraging the idea but professing himself willing to discuss it. It is deserving of note that on getting this reply Alamelu Achi got the plaintiff, who was largely responsible for the management of her affairs, to consult Sir V. Bhashyam Aiyangar, their legal advisor (Exs. XXXVI and XXXVI-A). A further letter was then sent to the first defendant, Alamelu Achi explaining that she was desirous of consulting him as he was the most influential among the relatives. In reply the first defendant attributed her reference to him to his being the nearest dayadi and therefore of course the first person whose consent should be obtained, and in Alamelu Achi's next letter, Ex. XI-A, she acknowledges that she wanted to obtain his permission as a gnati. With this letter, dated the 10th March, 1905, the correspondence ends. As has been said, Alamelu Achi died on the 7th April and on that very day the plaintiff telegraphed to the first defendant alleging that she had executed a will, and adopted his son Krishnaswami. He also sent telegrams to the same purport to two other persons as remoter dayadis. The next day, the first defendant wired back repudiating the will and the adoption as false and invalid, and the other two reversioners replied in the same sense. Then on the 12th April the first defendant, alluding to the circumstances of this claim, filed a petition in the District Court of Tanjore applying that a curator should be appointed to take charge of all the immovable and movable properties of the estate. Next day, however, an agreement was come to between the plaintiff and the first defendant and embodied in a document, Ex. A. It recites the rival claims, deprecates resort to litigation and declares that the parties have entered into a compromise according to which the minor Krishna Swami was to get certain of the lands and movables and the first defendant the remainder. This was signed by the plaintiff as guardian of his son and by the first defendant. It was agreed at the same time that the necessary documents should be executed within a month, and pursuant to this the deed of indenture, Ex. I, was signed on the 11th May, 1905. This deed was executed by the first defendant, described as the adopted son of Venkatachala Pillai, of the first part, by the plaintiff acting as father and guardian of the minor Krishnaswami, of the second part, and by the plaintiff in his personal capacity, of the third part. After alluding to Alamelu Ach'i's succession and death it declares that the first defendant became entitled to the estate and had taken possession of it as reversionary heir of Venkatakrishna. It then; refers to the contention raised by the plaintiff as guardian that Alamelu Achi had adopted his son following this by an admission made by the plaintiff in both capacities that no authority had been given by the 1st defendant or by the remoter reversioners for this adoption, with the consequence that the first defendant was alone entitled to all the properties of the deceased. Out of regard and affection for the minor, however, and his close relationship with the deceased Alamelu Achl, the first defendant conveyed to him the properties specified in Scheduel I to the indenture absolutely, but subject to the condition that, if the claim of adoption were again set up, the deed should stand revoked. Now it is claimed that this document operates against the plaintiff in three separate ways, by estoppel, as a composition and as an admission. It will be seen that it is primarily a settlement of the competing claims of the first defendant and of the minor Krishnaswami as alleged adopted son of Alamelu Achi. It has been argued that, viewed in this light, the plaintiff is not personally bound by its terms as he subscribed to them not in his personal capacity but as guardian of his son; and that the only object of the document was to put an end to the son's claim as Alamelu Achi's adopted son, so that no renunciation of any claim which the plaintiff may himself have had as reversioner is either expressly or impliedly made. That the document was not executed by the plaintiff purely in a representative capacity is clear from the circumstance that besides being a party as guardian he was made a party of the third part, in his personal capacity. This cannot have been done simply because he became a trustee of a certain charitable endowment because the other trustee, K. Chidambaranatha Mudaliyar, was not made a party and only signed the document as a witness. It seems clear therefore that he was added in his personal capacity in order that. the recitals in the document should in that capacity bind him. The arrangement was in fact for the plaintiff's own benefit, as deposed by Chidambaranatha Mudaliar himself, a very respectable witness. Those recitals include an unqualified statement that the first defendant had become entitled to Venkatakrishna's property as reversionary heir, and, since it was open to the plaintiff at that time to set up his own competing title and he not only did not do so but made this declaration, the conclusion must be, I think, that he thereby admitted that the first defendant's title as. reversioner was superior to his own. I think that this declaration can only be taken as an assurance to the first defendant that if Krishnaswami's claim was out of the way, there was, so far as the signatories to the document were concerned, no other competing claim to his--that he was Venkatakrishna's reversionary heir. Whether or not such an admission would amount to an estoppel must depend upon the view taken of the course which the first defendant was led to adopt in consideration of it. The learned Subordinate Judge finds an analogy in the circumstances of the case reported in Sarat Chunder Dey v. Gopal Chunder Laha , but there is this difference, that the mortgagee in that case was induced by the representations made to advance money which formed no portion of the property in dispute, whereas here it was a. portion of the disputed property that the first defendant conveyed to the minor. If, however, he so conveyed it on the understanding that so far as the plaintiff and his son were concerned his title would henceforward be undisputed, I am not clear that the plaintiff is any the less estopped by this circumstance. It is pretty evident, I think, that if the plaintiff had endeavoured to put this transaction through while expressly reserving his own right to dispute the first defendant's position as the nearest reversioner and to advance his own claim as sister's son, the first defendant would never have parted with the property. If that be granted, then I think the plaintiff is clearly estopped from setting up his claim. No case has been cited to us directly in point and I only refer to the Privy Council case, Raja of Deo v. Abdullah , where it was held that a party may be caused to change his position even by being the recipient of a gift which carried with it the ordinary liabilities of immovable property, in order to show how far the doctrine extends. I consider that the plaintiff's conduct in entering into this agreement did estop him from raisingthis claim and that a fortiori it constituted a clear and unqualified admission on his own behalf of the first defendant's title. As to the remaining aspect, I do not think that Ex. I can be construed as a, composition of the claim.

5. To understand the plea of res judicata certain facts, which will be of use in dealing later with the merits of the claim, require to be known. The table given above shows one Thiruvenkata as first cousin to Venkatachala, the first defendant's alleged adoptive father. Gopalaswami, Venkatakrishna's natural brother, appears also as Thiruvenkata's adopted son. The litigation which gives rise to this plea is between this. Gopalaswami and the first defendant, each questioning the other's adoption. On the 1st November, 1873, Thiruvenkata executed a will. On the 29th July, 1879, he died. The will made certain dispositions in favour of both Gopalaswami and the first defendant, and it will become necessary later on to consider its terms in some detail. As soon as the testator died, the question of the revenue registry of his properties arose and the records relating to these proceedings show that the claims of the rival candidates were sometimes asserted and sometimes denied. The first civil litigation took the form of an interpleader suit filed against the rival claimants by a mortgagor to Thiruvenkata: anxious to redeem his property. In this it was found that the adoption of each was true and valid. Shortly after this came to an end, Thiruvenkata's widow died and Gopalaswami on the 29th May, 1884, filed a suit against the first defendant and others (O.S. No. 30 of 1884,. Subordinate Judge's Court, Kumbakonam), which, it is claimed, renders the question of the first defendant's adoption res judicata as between the present parties. The Subordinate Judge found that neither adoption is true, but both these findings were reversed on appeal. As regards the first defendant's claim the High Court observed that the plaintiff, that is, Gopalaswami, had withdrawn his contest, and both adoptions were declared well proved, and the case was then remanded for the: trial of the other issues and when the suit went back to the. Trial Court both parties filed a statement, Ex. XXXII (g), admitting the validity of Thiruvenkata's will and agreeing to take the properties in accordance with its terms, and. a decree was passed in conformity with this compromise. In August, 1893, Gopalaswami died, and Venkatakrishna, the last male holder in the present case1, inherited his property, under his will, dated the 7th August, 1893. It is this property with some other not derived from Gopalaswami, that is the subjectmatter of the present dispute. So far as the latter property is concerned, the doctrine of res judicata can have no application and it is therefore necessary, however that matter may be: decided, to go into the merits of the first defendant's claim as nearest reversioner. For this reason and also because We propose to uphold that claim upon its merits, it is not essential for the due disposal of this suit that a finding should be recorded upon this question of res judicata. I will however briefly set down my reasons for the conclusion that no such defence arises in the circumstances of the present case.

6. The argument in support of the plea depends primarily upon the circumstance that the property in dispute derives from Gopalaswami, so that it is said that, while the first defendant is a party common to both the earlier and the later suit, the plaintiff claims under the other party within the meaning of Section 11 of the Code of Civil Procedure. Of course the first defendant, equally with the plaintiff, claims under him as reversioner, but in view of his own participation in the previous suit this circumstance, it is said, may be disregarded and does not bring the case into line with such decisions as Vythilinga v. Vijayathammal I.L.R. (1882) 6 M. 43 and Asghar Reza, Khan v. Mahomed Mehdi Hossein Khan . It appears to me that this is an extremely doubtful proposition, and if the question depends, as it must do, upon the devolution of Gopalaswami's property, I think that the principle of those decisions does apply, and that it is as a claimant to Venkatakrishna's property that the first defendant's position must be regarded. Then it is no doubt true that, as between Gopalaswami and the first defendant, the effect of the adjudication in O.S. No. 30 of 1884 was to set at rest the question irrespective of the property involved in the dispute. There is authority for this in Pittapur Rajah v. Buchi Sitayya and Abdul Gani v. Nabendra Kishore Ray I.L.R.(1929) 57 C. 258. The matter in issue between them--the fact of adoption--had been tried and finally decided. The further question--how far Gopalaswami's disability attaches to the holder of, or claimant to, property traceable to him--is of far greater obscurity. Mr. Srinivasa Aiyangar would ask us to hold that the plaintiff is thus barred by virtue of the source of the property to which he lays claim, but the case which he cites, Pittapur Rajah v. Buchi Sitayya is certainly no authority for so wide a proposition. In that case the son stood in the shoes of his father in a manner to which the relation between Gopalaswami and the plaintiff furnishes no parallel. The proposition may be reduced to an absurdity by supposing that Gopalaswami had disposed of his property by a number of gifts and bequests,--would each recipient be ipso facto debarred from questioning the first defendant's adoption? It appears to me that the circumstance that some of the property in dispute belonged to Gopalaswami is a wholly irrelevant consideration. His title to that property involved the question not of the first defendant's adoption but of his own. I think, further, that it is merely fortuitous that some of the property to which, as reversioner to Venkatakrishna, the plaintiff lays claim should have descended from Gopalaswami. I can only add that no principle or line of reasoning intelligible to me has been advanced which would lead me to hold that the earlier adjudication now bars the trial of the fact of adoption.

7. The learned Subordinate Judge has summarised in paragraph 49 of his judgment the various heads of proof that the adoption was made. They consist of (a) the terms of Thiruvenkata's will, (b) evidence, direct and indirect, that the ceremony of adoption was performed, and (c) evidence that subsequently the first defendant behaved and was accepted by members of the family as the adopted son. [His Lordship referred to the terms of the will and continued as follows:]

The oral evidence relating to the performance of the ceremony of adoption consists in the testimony of three witnesses examined at the trial and of the deposition of a number of other witnesses, not now available, who were examined in the interpleader suit and in Original Suit No. 30 of 1884. It cannot be said that the first defendant is now in a position to call witnesses qualified to give any very convincing evidence upon this point. The three witnesses whom he examines are himself (D.W. 1), one Muthiah Pillai (D.W. 4) and his Karyasthan Appuswami Aiyar (D.W. 13). To show the handicap under which the first defendant labours in producing oral evidence at this distance of time, it may be observed that the ages of the two witnesses other than himself are given respectively as 73 and 69 years. The learned Subordinate Judge has given some grounds in paragraph 63 of his judgment for not attaching very much weight to this evidence, and I do not therefore wish to base my decision in any material degree upon it, although there are a great many, other considerations to suggest that it is true.

8. The learned Subordinate Judge has admitted in evidence the depositions of as many as 24 other witnesses, three of whom at least he thinks are fully deserving of credit considered even on their own merits, and apart from such corroboration as is furnished by the will and other circumstances. It is for consideration whether these statements are admissible. They were made in suits in which the question of adoption was directly in issue and cannot therefore be admitted under Sub-section (5) of Section 32 of the Evidence Act as they were not made before the question in dispute was raised. It is claimed that they are relevant under Section 33 of the Act, as evidence given in a prior judicial proceeding. That section contains three provisos, the first of which is that the proceeding is between the same parties or their representatives in interest. The first defendant having been common to the two suits, the question is whether the plaintiff here is a representative in interest of Gopalaswami in the two former suits. It may be true, as Mr. Srinivasa Aiyangar contends, that the phrase 'representative in interest' is not for all purposes synonymous with the expression 'the person claiming under' in Section 11 of the Code of Civil Procedure, for instance, cases may be cited in which the former expression has been deemed to apply to the several members of a class. But I think that here, unless the plaintiff can be said to be claiming under Gopalaswami within the meaning of Section 11 of the Civil Procedure Code, in no other way can he be said to be his representative in interest. We must therefore apply the same tests as were appropriate in deciding the question of res judicata and, as I have said in dealing with that question, I am unable to see by what line of reasoning the plaintiff can be held to be Gopalaswami's representative so far as the issue of the first defendant's adoption is concerned. I must hold accordingly that these statements are inadmissible. His Lordship then referred to the oral evidence with regard to the adoption which was corroborated by documentary proof that on many occasions and for a long term of years the first defendant's status as an adopted son had been recognised, and continued as follows:

Enough has, I think, been set down to show that on many occasions and over a long period of time the first defendant's adoption has been admitted by members of the family some at least of whom were interested to deny it. I cannot interpret Thiruvenkata's own treatment of the boy as otherwise than an acknowledgment of the fact. Even his widow Alamelu, although she disputed her own husband's adoption of Gopalaswami, and might have been expected to get rid of the first defendant's claims in the same manner, stopped short of this. Gopalaswami himself seems only to have challenged the adoption because his own was challenged, and admitted it readily enough when his own was established. Then in turn we find Venkatakrishna and his widow making the same admission. Lastly, but very notably, there is the conduct of the plaintiff himself. From the time of Venkatakrishna's death he appears to have cast covetous eyes upon the property, becoming; a party to the proposal that the widow should renounce her rights, and when that broke down owing, according to the first defendant, to his excessive demands, setting up the palpably false claim of his own son's adoption. When this too failed, and after a delay not satisfactorily accounted for, he files the present suit. The main issue in that suit is 'the truth of an occurrence said to have taken place in 1873, more than fifty years before it was instituted. The first defendant, now in his seventieth year, was then a child of eleven. It is sought to make much of certain early doubts cast upon his status. I have referred, as some explanation of these, to the motives which are likely to have actuated Thiruvenkata in wording his will as he did, and to the dispute with Gopalaswami. Since that dispute ended a long period has elapsed, and no further challenge was forthcoming, although some occasions arose for it, until the plaintiff's very belated action. In view of all that has taken place, it may almost be said that it lies upon the plaintiff himself to disprove the adoption, even were we to disregard such oral evidence as still remains available. To hold otherwise would lead to the anomaly that the older the adoption set up the more vulnerable becomes the occupant's position. This view is well enough supported by authority. In Rajendro Nath Holdar v. Jogendro Nath Banerjee (1871) 14 M.I.A. 67 the Judicial Committee had to deal with the validity of a will under which an adoption was made and acquiesced in by the family for twenty-seven years, when a suit was brought by one of the testator's heirs claiming the estate on the ground that the adoption was invalid. Their Lordships held that, although the defendant was bound to prove his title as adopted son, every allowance for the absence of evidence, to prove such fact, was tobe favourably entertained, and that the case was analogous to that in. which the legitimacy of a person in possession had been acquiesced in for a considerable time, and afterwards impeached by a party who had the right to question the legitimacy, where the defendant, in order to defend his status, is allowed to invoke against the claimant every presumption which arises from long recognition of his legitimacy by members of his family; and that the case of a Hindu, long recognised as an adopted son, raised even a stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family. In another case before the Privy Council, Kanchumarthi Venkata Seetharama Chandra Row v. Kanchumarthi Raju (1925) 53 M.L.J. 858 (P.C.), the authority of a widow to make an adoption which was in fact made forty-two years before suit was questioned by a reversionary heir, and their Lordships, after referring to a variety of considerations--the transfer of the adopted son from his natural to his adopted home, his recognition, after inquiry, by the local authorities, proceedings in which the plaintiff had acknowledged the right, the dilatoriness of the plaintiff in preferring his claim--expressed the view that the burden resting upon a litigant who disputes such a claim is indeed of the heaviest order. Two cases dealt with by the High Court of Allahabad on the same lines are Prem Devi v. Shambhu Nath I.L.R. (1920) 42 A. 382 and Chhote Lal v. Chandra Bhan I.L.R. (1922) 45 A. 59. In the present case, together with a little direct evidence still available, it has been shown that in numerous transactions and over a long period of time the first defendant acted and was treated as an adopted son, his position not even being challenged by the plaintiff himself until all other means of securing some of the property had been tried, I find it very hard to believe that the plaintiff can have any faith in the truth of his own claim. I find on this issue against him.

9. The question next arising is whether the Kannankulam and the Koppyam branches of the family are agnatically related as shown in the tree. The evidence consists of (1) proof that members of each branch have been described and treated as dayadis by members of the other, and (2) proof of the relationship actually alleged.

10. The expression 'dayadi' is in Ghose's Hindu Law explained as being equivalent to 'agnatic heir' and in this sense it has been construed in the Privy Council judgment in Sri Virada Pratapa Raghunadha Deo v. Sri Brozo Kishoro Patta Deo . That members of the two branches shown in the tree are so related has been affirmed so frequently by one or the other of them as to leave the matter in no doubt whatever. After referring to several documents in which the first defendant was described as a dayadi, His Lordship continued as follows:

11. The record comprises three pedigrees all showing the same relationship and, except for one possible inaccuracy, agreeing as to the names of the connecting links. The first of these is contained in Ex. XXIV, a statement put in during the inam enquiry of 1865 by (1) Venkatachala Pillai, the father of Venkatakrishna, (2) Thiruvenkata Pillai, and (3) Venkatachalam Pillai, the adoptive father of the first defendant. This statement is not signed by these persons or by any of them, but by a vakil on their behalf under a certificate that the matters set out in the statement and in the genealogical tree are true. It is contended that because it is not signed by the persons whose statements it purports to be, it is not admissible under Section 32(5) of the Evidence Act. Two cases have been cited before us as authority for this position. The case in Sangram Singh v. Rajan Bai (1885) L.R. 12 LA. 183 : I.L.R. 12 C 219 (P.C.) related to the deposition given in Court by a muktyar, and that being so it was only the personal knowledge of the deponent which could render his statement admissible, since the statement must be that of a person having 'special means of knowledge.' Their Lordships make this clear when they say:

It appears to their Lordships, therefore, on the two grounds, first, that. he was not shown to have special knowledge, and secondly, that he did not pretend to speak from his knowledge at all, that this deposition was not admissible.

12. The statement could not be taken to be that of his clients, since no client can authorise a representative to depose in Court as from his own lips. The second case, Jagatpal Singh v. Jageshar Baksh Singh (1902) L.R. 30 LA. 27 : I.L.R. 25 A. 143 (P.C.) related to a genealogical table filed on behalf of the client in some prior claim. The admissibility of this evidence was found to be open to the fatal objection that it was in no way brought home to the client except as being an exhibit binding on him for the purpose of that suit.

His relation to the document is therefore something entirely different from the personal knowledge and belief which must be found or presumed in any statement of a deceased person which is admissible in evidence. For aught that appears, the genealogical table in question might never have been seen or heard of by Gurdat personally, but have been entirely the work of his pleader.

13. I do not think that the circumstances of that case also conform to those of the present. There can be no doubt from the form and contents of the statement before us that it purports to originate with the members for whom the vakil signed, as a statement in an inam inquiry by the holders of the inams. It is attested by two karnams, was received by an officer whose duty it was to ensure that information was correctly obtained from the proper parties, and it appears to me that the circumstances in which it originated justify the presumption that it was duly authorised and is in effect, as it is entitled, a statement put in by the three persons named. In Rani Srimati v. Khagendra Narayan Singh the question arose whether the statement in a petition for the appointment of a guardian was admissible in evidence, the argument (on page 880) being that no proof that the statement was authorised by those in whose name the petition was presented had been furnished. Their Lordships, however, held that the statements in the petition must be regarded as the statements of the petitioners if the document was worth anything. Another instance of a petition filed on behalf of a party but not bearing his signature is furnished by Chandreshwar Prasad Narain Singh v. Bisheshwaar Pratap Narain Singh I.L.R. (1926) 5 Pat. 777 and evidence contained in it was deemed admissible under Section 32 of the Evidence Act. I do not think that either of the two cases relied upon for the appellant is authority for the rejection of a statement such as the one under consideration. It is further objected that from the genealogical table the name of the common ancestor is missing, but inasmuch as the two brothers, Venkata-chala Pillai and Chandrasekhara Pillai, from whom the two branches are derived, are shown as brothers, I follow Jagan-natham v. Venkatasubba Rao I.L.R. (1927) 50 M. 877 : 53 M.L.J. 864 in holding this to be no objection in law to accepting the pedigree as proof of the relationship.

14. On the death of Thiruvenkata in 1879 the Collector submitted a report to the Board of Revenue on the question whether the estate should be taken over by the Court of Wards, and illustrated his statement of the facts by a genealogical table (Ex. XXXIX-a). The provision of law then in force was Regulation V of 1804, Section 3 of which requires Collectors to report each case of property devolving to incapacitated heirs. In so doing they are to describe all the circumstances of each particular case. It seems clear to me that the information contained in the Collector's report, including this table, was submitted in accordance with that direction. We have not been furnished with information whether any more specific rules for the guidance of Collectors were in existence under that regulation but it is perhaps worthy of note that a rule framed under the Court of Wards Act of 1902 now requires that the report shall include the names, ages and relations of the proprietor and of rival claimants, if any, to the estate and the validity of their respective claims, and also the names, ages and relation of all other members of the family. According to the first defendant, the Tahsildar made an inquiry upon which this report was no doubt based, and I think that the statements in the report and, in particular, the family tree, are relevant under Section 35 of the Evidence Act. It must always be a question of drawing a line between records and correspondence which do, and those which do not, fall within the scope of that section. But where there is a statutory duty laid upon public officers to investigate and report facts, I cannot doubt that a report of the facts elicited by their investigation is an official record within the meaning of the section. As to the value of this tree, it is not suggested that on the occasion of its preparation the first defendant's adoption was in dispute and the only specific reason for showing the Kannankulam branch seems to have been to exhibit the natural, as well as the adoptive, position of Gopalaswami in the family. I think, therefore, that a good deal of weight may be attached to this record.

15. The third table Ex. IX-a was compiled in another inquiry under the Court of Wards Act. On the death of Venkata-krishna, the first defendant asked for Government management on the ground that Alamelu Achi was not equal to the task. Here again there was no suggestion that the first defendant was other than a reversionary heir by reason of his adopted status--the only difference of opinion revealed by the records was as to whether the Government should take over the management. In view of this, I think that besides being admissible under Section 35, this table may be viewed in another aspect, as a statement relevant under Section 32(5) of the Act. It has been signed by three persons other than the first defendant himself, Rangaswami Pillai, Sambasiva Pillai and another Rangaswami. The first of these was related to the family in a number of ways, being among other things the husband of Alamelumangathayi and also the plaintiff's paternal uncle. Similarly, Sambasiva Pillai was the brother of Alamelu Achi and therefore Venkatakrishna's maternal uncle and the father-in-law of Venkataranga Pillai, Venkatakrishna's elder brother. The third signatory was a Karyasthan, and we need not trouble about his opportunities of knowledge, but it appears to me that the statements by the two former persons are qualified for admission under Section 32(5). In this country the rule governing such cases is wider than in England where it applies only to blood relations and their consorts (13 Halsbury 470). It has been stated by the Judicial Committee in Garuradhwaja Prasad v. Superundhwaja Prasad that for the purpose of proving relationship statements of deceased relatives, servants and dependants of the family are admissible and in every instance it must be a question of fact as to whether the person who made the statement had special means of knowledge. I think that upon this footing also this statement is admissible.

16. My conclusion is therefore that the three pedigrees discussed above are admissible in evidence. I can find no reason to doubt the correctness of the relationship which they represent. The other evidence places beyond question the fact that the first defendant was recognised by members of the Kannankulatti branch as a dayadi or agnatic heir. It is a priori probable therefore that the precise manner in which he, as adopted son, was related to that branch was known. These, pedigrees originated in circumstances giving no ground for the suspicion that they were drawn up for the purpose of asserting his claim. I agree with the learned Subordinate Judge that they afford proof of it.

17. These findings are sufficient to dispose of the plaintiff's suit, which in my view has been rightly dismissed. As my learned brother concurs, the appeal is dismissed with costs of first and second respondents. (Advocate's fee Rs. 2,500.)

Cornish, J.

18. I concur.

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