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Thirumal Reddiar Vs. Koppiah Reddiar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1966)2MLJ155
AppellantThirumal Reddiar
RespondentKoppiah Reddiar
Cases ReferredChandra Kunwar v. Chaudri Narpat Singh L.R.
Excerpt:
- - k failed to, establish the fact of adoption. 184 ,which has not been doubted in any of the above decisions is clearly applicable to the facts of this case. regarding the recitals an exhibits b-3 to b-5 his explanation was that he was living in both the houses, that is, his father's house as well as that of ramaswamy reddiar's house and therefore the recital was made. 184 i hold that the plaintiff has failed to explain his admissions in exhibits b-l to b-4 that he was the adopted son of ramaswamy reddiar and therefore the adoption will have to be upheld......possession of his half-share in the property belonging: to koppiah reddiar. koppiah reddiar and ramaswamy reddiar arebrothers ramaswamy reddiar had two wives subbammal and veerangammal. in or about 1936, ramaswamy reddiar was keeping indifferent health and it is the case of the defendant that the present plaintiff, koppiah reddiar, who was about 6 years of age was adopted by ramaswamy reddiar. thirumal reddiar, the defendant herein, is koppiah reddiar's second son. if the defendant fails in. establishing that the plaintiff was adopted by ramaswamy reddiar, admittedly the plaintiff will be entitled to partition and separate possession of half-share in his father koppiah reddiar's property.2. in order to prove the adoption, the defendant examined three witnesses on his behalf and filed.....
Judgment:

P.S. Kailasam, J.

1. The defendant is the appellant. The plaintiff filed the suit for partition and separate possession of his half-share in the property belonging: to Koppiah Reddiar. Koppiah Reddiar and Ramaswamy Reddiar arebrothers Ramaswamy Reddiar had two wives Subbammal and Veerangammal. In or about 1936, Ramaswamy Reddiar was keeping indifferent health and it is the case of the defendant that the present plaintiff, Koppiah Reddiar, who was about 6 years of age was adopted by Ramaswamy Reddiar. Thirumal Reddiar, the defendant herein, is Koppiah Reddiar's second son. If the defendant fails in. establishing that the plaintiff was adopted by Ramaswamy Reddiar, admittedly the plaintiff will be entitled to partition and separate possession of half-share in his father Koppiah Reddiar's property.

2. In order to prove the adoption, the defendant examined three witnesses on his behalf and filed Exhibits B-1 to B-4. The adoption is stated to be in the year 1936, and soon after the adoption, Ramaswami Reddiar died, Veerangammal, the second wife of Ramaswami Reddiar, also died and Subbammal as the mother of the adopted son is stated to be in enjoyment of the property belonging to Ramaswamy Reddiar. Exhibit B-1 is dated 30th July, 1946. It is a sale deed executed by one Perumal Reddiar in favour of Subbammal and plaintiff Koppiah Reddiar. Koppiah Reddiar is described in this document as the adopted son of Ramaswamy Reddiar. Admittedly, afterwards Koppiah the plaintiff attained majority. He sold some of the properties belonging to Ramaswami Reddiar for himself and as guardian of his minor son in favour of Sundararamalinga Reddiar by Exhibit-2 dated 7th August, 1957. In this document it is recited that Koppiah Reddiar the plaintiff' is the natural son of Koppu Reddiar and the adopted son of Ramaswamy Reddiar. The properties that were sold were admittedly properties belonging to Ramaswamy Reddiar. Koppiah Reddiar also sold, under Exhibit B-3 on 23th July, 1959, for himself and on behalf of his minor son, the property for Rs. 200 in favour of one Perumal Reddiar and subsequently another item of property under Exhibit B-4 dated 28th April, 1959. It is admitted that the properties comprised in Exhibit B-3 and B-4 belonged to Ramaswami Reddiar. In these two documents, Exhibits B-3 and B-4 the plaintiff Koppiah Reddiar is described as the adopted son of Ramaswamy Reddiar. In 1958 one Alagu Reddiar gifted certain items of properties in favour of Koppiah Reddiar (plaintiff) under Exhibit B-5. In this document: also, the plaintiff is described as the adopted son of Ramaswamy Reddiar. Apart from these documents, the defendant examined 3 witnesses on his behalf..D.W.1 is Ramaswami Reddiar who spoke to the fact of adoption. The trial Court accepted his evidence; but the lower appellate Court rejected his evidence. His evidence cannot, therefore, be taken into account in the Second Appeal. The trial Court relying on the assertion of the plaintiff in the documents Exhibits B-2 to B-4 that he is the adopted son of Ramaswamy Reddiar, found that adoption had been amply proved and dismissed the suit for partition.

3. On appeal by the plaintiff, the lower appellate Court reversed the finding holding that the factum of adoption has not been established by the defendant. The lower appellate Court was of the view that whatever may be the recitals in Exhibits B-1 to B-5, the factum of adoption has not been satisfactorily proved and therefore the adoption could not be held to be valid.

4. In this Second Appeal, Mr. R. Ramamurthy Aiyar, the learned Counsel for the appellant, submitted that though the evidence regarding the factum of adoption was not accepted by the lower appellate Court, from the admissions made by the plaintiff in the documents Exhibits B-2 to B-4 the burden which lay originally on the defendant to prove adoption shifted to the plaintiff who admitted the factum of adoption in the documents and thereafter it was the duty of the plaintiff to explain the recitals in the documents and prove that there was in fact no adoption in spite of the recitals. The learned Counsel for the appellant relied on the decision of the Privy Council reported in Chandra Kunwar v. Chaudhri Narpat SinghL.R. 34 IndAp 27 : 17 M.L.J. 103 : I.L.R. (1906) All 184. In that case one Raja Sher Singh had two issues Pran Kunwar and Jiwan Kunwar. Pran Kunwar had 3 sons Kishan Singh, Lodh Singh and Pratab Singh. Pratab Singh's son is Raja Mukund Singh the respondent before the Privy Council., The case of the appellant was that Raja Mukund Singh the respondent was adopted by Kishan Singh and therefore he had no claim over the property of Pratab Singh to which the appellant became entitled. On the facts, the Privy Council recorded (1) that the plaintiff Makund Singh more than once under his hand and seal stated that he was the adopted son of Kishan Singh which statement was in effect an admission that he had no title to the lands he sought to recover in these actions; (2) that at the death of Kishan Singh, Makund Singh was treated as the former's adopted son and in that character and by that right installed in the Raj Gaddi; (3) that according to the evidence of three at least of the plaintiffs' witnesses, on the death of Kishan . Singh, Makund Singh entered into the possession and enjoyment of the farmer's property and (4) that the explanation offered by the plaintiff for his admission in the deeds was according to the Privy Council either absurd or unproved. The Privy Council, on the facts, while laying down that the burden of proving that the adoption relied upon took place, was on the defendant observed, it could be effectually discharged by proving the plaintiff's solemn statement under hand and seal that the adoption did take place. The Privy Council further observed,

the proof of this admission shifts the burden, because as against the party making it, as Baron Parke says in Slatterie v. Polley (1840) 6 M.&W.; 664 at 669, what a party himself admits to be true may reasonably bepresumed to be so. No doubt, in a case such as this, where the defendant in not a party to the deeds and there is therefore no estoppel, the party making the admission may give evidence to rebut this presumption, but unless and until that is satisfactorily done, the fact admitted must be taken to be established.

Holding that Makund Singh had not satisfactorily established that the admissions made by him in the documents were untrue the Privy Council held that the adoption had been proved. Apart from the documents in which Makund Singh had admitted that he was an adopted son, there was no evidence relating to the factum of adoption. This decision was followed in Chhote Lal v. Chandra Bhan I.L.R 45 All. 59, where it was held that an adoption should be considered as a legal and valid adoption, notwithstanding that there was no evidence available of the usual ceremonies of adoption having been performed. In Picha Pillai v. Kathaperutnal Pillai (1934) 39 L.W. 518, this Court has followed 'the decision in Chandra Kunwar v. Chaudri Narpat Singh I.L.R. 34 L.A. 27 : 17 M.L.J. 103 : I.L.R.(1906)All 184, and held that the onus of proving an adoption is initially on the party asserting it, but proof of admissions by the opposite party shifts the onus, on the principle that what a party himself admits to be true may reasonably be presumed to be true and until the presumption is rebutted by satisfactory explanation, the fact admitted must be taken to be established. While discussing about the burden of proof, the Privy Council in Kanchumarthi Venkata Seetharama Chandra Row v. Kanchumarthi Raju (1925) 53 M.L.J. 858, held that

they cannot understand why it should not be held to be quite conclusive, not only on the fact of adoption, but on the authority to adopt. It stands to reason that after such a long term of years, and the variety of transactions of open life and conduct, upon one footing, and one footing alone--namely that the adoption was recognised as a valid act--the burden resting altogether apart: from the law of limitation, upon any litigant who challenges the authority of an admitted adoption. is indeed of the heaviest order.

5. The Privy Council in Chandra Shekar Baksh Singh v. Musammat Raj Kunwar (1926) 24 L.W. 320, agreed with the learned Judges of the Allahabad High Court that the proof of adoption rested on the reiterated declarations by the adopted son himself, extending: over a number of years, that he was the adopted son.

6. The learned Counsel for the respondent submitted that before an adoption can be held as valid, proof of the factum of adoption that the necessary ceremonies. had been undergone and that the person who adopted had the authority to adopt should all be satisfactorily established by the person who asserts adoption, as adoption interferes with the natural mode of succession of property to a person.. In support of his contention he relied on the decision of the Privy Council in Muthuswami Thevarv. Chidambara Thevar (1948) 2 M.L.J. 468, The Privy Council held that the burden of proving an adoption rests on him who asserts it and the burden is a heavy one. This statement of law is not questioned by the learned Counsel for the appellant. The case cited does not deal with the question with which we are now concerned viz, the effect of admissions made by the adopted son himself in a series of documents, admitting that he is the adopted son. The law laid down in Chandra Kunwar v. Chaudri Narpat Singh L.R. 34 I.A. 27 : 17 M.L.J. 103 :I.L.R. (1906) 29 All. 184 is not in any way doubted by this decision In the next decision relied on by the learned Counsel for the respondent, Kishori Lal v. Mt. Chaltibai (1959) S.C.J. 560, it was held that the Privy Council has held that the burden is on the person setting up adoption to prove that feet. In the. case cited, the defendant setup a plea that he was adopted by A during his life time and that C was estopped. from denying the adoption. K failed to, establish the fact of adoption. It was. contended that even though the evidence produced in support of adoption, might be unsatisfactory and not sufficient to establish the factum of adoption C was estopped, from setting up the true facts of the case, 'After examining the documents which, were sighed by C and which were relied on for pleading estoppel against C the Supreme Court held that C was not estopped. It was held that the rule of estopppel did not apply. The Supreme Court was not concerned with the facts similar to-one that arose in this case and I do not think the case in any way questioned' the correctness of the decision in Chandra Kunwar v. Chaudri Narpat Singh L.R. 34 IndAp 27 : 17 M.L.J. 103 : I.L.R.(1906) 29 All. 184 , Lastly, the learned Counsel relied on the decision in Lakshmana Singh v. Smt. Rup Kunwar (1962) 2 S.C.J. 472 where it was held that there cannot be a valid adoption. unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. Contemporaneously along with the adoption, a document was executed. announcing that the plaintiff was the sole heir of the defendant by virtue of his adoption. On a consideration of the evidence in the case, the Supreme Court held that the validity of the adoption depended upon ceremony of giving and taking and. that the ceremony had not been proved to have taken place. The law laid down. by the Supreme Court decision cited above is as follows:

Under the Hindu Law, whether among the regenerate caste or among sudras, there cannot be a valid adoption unless the adopted boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adopted boy and the adoptive parent shall receive him...But a ceremony there shall be, and giving and taking shall be part of it.

7. Mr. Ramamurthy Aiyar, the learned Counsel for the appellant while not questioning the correctness of the law as laid down, submitted that it is not applicable to the facts of the present case.

8. The facts in the cases cited by the learned Counsel for the respondent,Muthuswamy Thevar v. Chidambaram Thevar (1948) 2 M.L.J. 468 Kishori Lal v. Mt. Chaltibai (1959) S.C.J. 560, and Lakshman Singh Kothari v. Smt. Rup Kunwar (1962) 2 S.C.J. 472, cannot apply to the facts of the present case, as in this case the statements made by the adopted son repeatedly in the documents that he is the adopted son which is relied as an admission, is enough to shift the burden on the adopted son to establish that there was no valid adoption. The decision in Chandra Kunwar v. Chaudhri Narpat Singh L.R. 34 I.A. 27 : 17 M.L.J. 103 : I.L.R.(1906) 29 All. 184 , which has not been doubted in any of the above decisions is clearly applicable to the facts of this case. The adoption in the case was in 1936 about 25 years before the disputes arose. The contention of the learned Counsel for the appellant has got to be upheld and thisappeal has to be allowed.

9. On the facts, the learned Counsel for the respondent caught to contend that the plaintiff has successfully explained the admission made by him in the three documents. The plaintiff's explanation for the above recitals in the document is that he did not know what was written in the sale deed Exhibit B-2, and; that he executed Exhibit B-2, because D.W. 1 wanted him to write the document describing himself as son of Ramaswamy Reddiar. Regarding the recitals An Exhibits B-3 to B-5 his explanation was that he was living in both the houses, that is, his father's house as well as that of Ramaswamy Reddiar's house and therefore the recital was made. The explanation is futile and cannot be accepted. It has, therefore, to be found that the -plaintiff has not properly explained the admissions made by him in the documents Exhibit B-2 to B-4 and his admission that he was the adopted son of Ramaswamy Reddiar can be acted upon. At the Bar, the learned Counsel for the respondent ventured to explain that originally in the sale-deed in favour, of Subbammal, it was recited that Koppiah Reddiar, the plaintiff was the adopted son and therefore, in all the subsequent deeds this description has been followed. This explanation was not given in the pleadings or in the Courts below and cannot be accepted. Reliance was placed on the three documents ExhibitsA-1, A-2 and A-3 filed on behalf of the plaintiff. Exhibits A-2 and A-3 may be rejected as of no value, as they were documents which came into existence after the suit was filed. RegardingA-1, it, is a gift deed by Ramaswamy Reddiar hi favour of the plaintiff. It was contended by the learned Counsel for the respondent that if only, he had already taken or was about to take the plaintiff in adoption, he would not have made the gift deed by Ramaswamy Reddiar in favour of the plaintiff It was contended by the learned Counsel for the respondent that if only he had already taken or was about to take the plaintiff in adoption, he would not have made the gift deed, as there was no necessity for a gift in the circumstances. There is no evidence as to whether this gift deed was executed before or after the adoption. The explanation that was offered was that this document was executed before the adoption and when adoption was not decided upon. This explanation cannot be rejected as without substance.

10. In the result, following the decision Chandra Kunwar v. Chaudri Narpat Singh L.R. 34 I.A. 27 : 17 M.L.J. 103 : I.L.R.(1906) 29 All. 184 I hold that the plaintiff has failed to explain his admissions in Exhibits B-l to B-4 that he was the adopted son of Ramaswamy Reddiar and therefore the adoption will have to be upheld. The appeal is allowed with costs throughout.

11. No leave.


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