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Chinnasami Mudaliar and anr. Vs. Ambalavana Wudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1906)ILR29Mad48
AppellantChinnasami Mudaliar and anr.
RespondentAmbalavana Wudaliar
Excerpt:
specific relief act i of 1877, section 42 - declaratory decree--suit to declare that a person was not adopted by the plaintiff. - - seshagiri ayyar have no bearing in a case like the present......witnesses for the defence, the father of the woman, who would have been the adoptive mother if the adoption were true, issued printed notices getting up the adoption, now in question, and warning the intending purchasers of the second defendant's right in the property offered for sale and requiring them to desist from obtaining any transfers of the property from the plaintiff. again in original suit no. 32 of 1901 on the file of the court of the district munsif of chingleput, brought by a creditor of the plaintiff against him, the creditor apparently at the suggestion of the first defendant the natural father of the second defendant, impleaded the boy as the adopted son of the plaintiff the present first defendant hiving been appointed guardian ad litem filed a written statement; on.....
Judgment:

1. The plaintiff sues for a declaration that the second defendant is not his adopted son the District Judge granted the declaration. Mr. Soshagiri Aiyar contends that such a suit does not lie. No doubt, as pointed out by him, there is nothing in the evidence to show that the second defendant himself has said or done anything with reference to the adoption. He is, however, a minor, and according, to the case for the defence, he was a child under 18 months when the gift and acceptance are said to have taken place. He cannot therefore be expected to speak to the actual adoption considering that persons are taken in adoption when they are children, it would be impossible to hold that absence of proof of the kind commented upon by Mr. Seshagiri Ayyar would disentitle a person in the position of the plaintiff from maintaining such a suit.

We are unable to accede to the suggestion that what has been shown in this case amounts to mere idle assertions by persons having no interest in the matter, and incapable of prejudicially affecting the plaintiff's rights. Admittedly, when the plaintiff advertised his properties for sale in 1898, one of the witnesses for the defence, the father of the woman, who would have been the adoptive mother if the adoption were true, issued printed notices getting up the adoption, now in question, and warning the intending purchasers of the second defendant's right in the property offered for sale and requiring them to desist from obtaining any transfers of the property from the plaintiff. Again in Original Suit No. 32 of 1901 on the file of the Court of the District Munsif of Chingleput, brought by a creditor of the plaintiff against him, the creditor apparently at the suggestion of the first defendant the natural father of the second defendant, impleaded the boy as the adopted son of the plaintiff the present first defendant hiving been appointed guardian ad litem filed a written statement; on behalf hi the second defendant raising certain contentions founded upon the alleged adoption. It is thus clear that the adoption has been set up under circumstances which would operate to the prejudice of the plaintiff if he did not take steps to have it declared not true, if, as he alleges, it never, in fact, took place; for an adopted son becomes from the moment of his adoption a coparcener with his adoptive father with all the incidents attaching to such a status under the Hindu Law. Consequently, the setting up of the adoption is such an infringement of the plaintiff's rights, if he is a sole owner, as to entitle him to obtain a declaration under the provisions of the Specific Relief Act. The decisions to which our attention was drawn by Mr. Seshagiri Ayyar have no bearing in a case like the present. We therefore overrule the objection that the suit does not lie. As to the merits we see no reason to differ from the District Judge's conclusion that the adoption has not been established. No doubt a number of witnesses speak to the gift to, rind acceptance by, the plaintiff of the second defendant. But we do not think that the evidence is of such a character as to induce us to accept it as true in the face of the improbabilities referred to by the District Judge. We agree that then the adoption is said to have taken place, it was altogether unlikely that the plaintiff would have thought of making the adoption. He was himself about 30 years of age and his wife was 5 or 6 years younger. There is no evidence worth the name that they were otherwise than healthy, and very soon after the time the adoption is said to have taken place, the plaintiff's wife became pregnant. Another circumstance strongly against the defence story is, the utter absence of written evidence in support of it between 1889 and 1898, when, for the first time, the adoption was, as already stated set up. Considering that from the year 1893 the plaintiff and the first defendant have been quarrelling about family property and engaged in litigation, it is not probable that the first defendant would, if his present story be true, not have taken steps to secure the rights of the second defendant as adopted son, by claiming partition on his behalf, or securing recognition of the adoption in the proceedings connected with the partition. Lastly, there is the fact that, practically, throughout the whole period the second defendant has been maintained by the first defendant, without the plaintiff contributing anything towards his support. The appeal fails and is dismissed with costs.


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