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Kandalam Venkubayamma and anr. Vs. Kandalam Narasimha Row and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.163a
AppellantKandalam Venkubayamma and anr.
RespondentKandalam Narasimha Row and anr.
Cases ReferredManik Chand Golecha v. Jagat Settani Pran Kumari
Excerpt:
hindu law - adoption by widow--suit by reversioners--knowledge of adoption--limitation act (xv of 1877), sh. ii, article 118--burden of proof--burden how discharged. - .....been made. in the year 1894 we have two documents. exhibits d and xiv. they are of the same date. exhibit xiv is a deed of adoption which recites an adoption having taken place about 14 months before that date. exhibit d purports to be a deed of sale of some acres of the property of rajacharlu in favour of the 1st defendant's sister. as regards exhibit, xiv, it is worthy of remark that it is suspicions as it comes into existence such a long interval after the date of the actual adoption. it is equally singular that the adoption is now stated to be in the year 1893, and not in the year 1888 as one might infer from exhibits xxiii and xxiv. exhibits d and xiv have, however, this advantage that they are registered. as regards exhibit d it is necessary to point out that the supposed.....
Judgment:

1. The first question in the case is whether the plaintiffs are the reversioners of the first defendant. The plaintiffs claim to be six degrees from the common ancestor of themselves and 1st defendant's husband. The Subordinate Judge finds that the relationship set up by the plaintiffs is true. No serious attempt has been made before us to show that this finding is incorrect. We have no doubt that Exhibits A and B are genuine, Exhibits A and B are engrossed on stamp papers purchased just before the dates of their execution. They show that Chetti Vencatacharlu, the grandfather of the plaintiffs, was the grandson of another Chetti Vencatacharlu, and Rajacharlu, the grandfather of the 1st defendant's husband, was the grandson of one Anantachatlu, and also that Chetti Vencatacharlu No. 1 was a brother of Ananthacharlu. Exhibits Nos. I, III and IV, which are inam statements, show the pedigrees of the plaintiffs branch and of the 1st defendants' branch. The plaintiff's pedigree is stated up to the common ancestor, Narasimhachar, and the pedigree of the 1st defendant's husband's father is carried up to Ananthacharlu. These documents taken together are sufficient to establish the relationship set up by the plaintiffs. There is also oral evidence in support of the plaintiffs' case. That evidence confirms all that the documents establish We have no hesitation, therefore, in expressing our concurrence with the Subordinate Judge on the question of the plaintiffs being the next reversioners of the 1st defendant.

2. The next question is whether the plaintiffs were aware of the 2nd defendant's adoption more than six years before suit. Mr. Ramesam had invited our attention to several cases to show that the burden lies upon the defendants to prove that the plaintiffs did become aware of the adoption more than six years before the suit. He has called our attention to Lachman Lal Chowdhri v. Kanhaya Lal Mowar 22 C. 609 : 22 I.A. 51, which is a Privy Council case. Their Lordships observe at page 614 of the judgment in that case that it has not been proved that the reversioner was aware of the adoption before six years before the institution of the suit. They do not, however, raise any question as to on whom the onus lay and express their opinion upon it. That decision is of value only to show that their Lordships seem to speak as if the burden lay upon the person alleging knowledge on the part of the reversioner within six years before suit to show it. The next case, to which we were referred to, was Moidiyan's son Punnayil Kutti v. Raman Nair 31. M. 230;,18 M.L.J. 19 : 4 M. L T. 80. It was a decision upon a different article, No. 95 of the Limitation Act. The starting point for the period of limitation under that article is when the fraud becomes known. It is there distinctly held by this Court that it is upon the person alleging knowledge of fraud on the part of the plaintiff to show when he became aware of the fraud. In Rahimbhoy Habibboy v. Charles Agnew Turner 17 B. 341 : 20 I.A. 1, there is an expression of opinion by the Privy Council with reference to Section 18 of the Limitation Act. Their Lordships say 'it is on the defendants to show when plaintiff became aware of the fraud.' On the other side, Mr. Narayanamurthi drew our attention to Manik Chand Golecha v. Jagat Settani Pran Kumari 17 C. 518. There was no decision in that case on the question before us as to on whom the onus lay. But it is pretty clear that the learned Judges who decided that case seem to act upon the, view that the onus lay on the person who said that he knew of a particular fact at a particular time. Section 106 of the Indian. Evidence Act was also relied on by Mr. Narayanamurthi as showing that the burden lay upon the person within whose knowledge the particular fact specially lay. It is unnecessary for us to express any opinion on the question of onus. Assuming that the onus lay on the plaintiffs, we think it is sufficient for him to swear as to when he became aware of the adoption, unless the defendant by positive evidence brings home to the plaintiff knowledge of the factum of adoption before six years before suit. On the facts of this case, we are satisfied that if the burden lay upon the plaintiffs they have sufficiently discharged it by giving' evidence to the effect that they became aware of the adoption only in 1906. Against the oath of the 1st plaintiff, all that the defendants rely on is a number of circumstances from which an inference should, according to the defence, be drawn that the plaintiffs must have known long before that the adoption had been set up. Plaintiff himself is not cross-examined with reference to the evidence he gives as to when he became aware of the adoption. The defendants, no doubt, have examined two witnesses, i.e., the 2nd defendant himself has been examined as 3rd defence witness, and a maternal uncle of Rajacharlu has been examined as the 4th witness for the defence. We may say at once that we do not attach the slightest weight to this testimony. The evidence of the 2nd defendant that when he was 12 years of age or less he went to Rajahmundry in connection with a litigation of 1895, and that he then saw the 1st plaintiff conduct the proceedings on behalf of his sister-in-law, is utterly unworthy of credit. Then as regards the story told by the 2nd defendant and by the defence 4th witness that on a particular occasion the 1st plaintiff happened to go to Vijjeswaram and there on the pial of the house of the 4th witness he asked a question as to who the 2nd defendant was and that both the 2nd defendant and the defence 4th witness informed him that the 2nd defendant was the adopted son of Rajacharlu, it is equally unworthy of credit.

3. Passing now to the circumstances which are relied on as showing that the plaintiffs must have had knowledge of the adoption, they areas follows in order of date. There are certain papers of the year 1888. They consist of an extract from a petition register, certain indorsements by the Revenue authorities and what purports to be a private copy of the petition presented, by the 1st defendant, to the Collector. According to the defence, they are put in to show that in 1888 there was an intention to make an adoption which was expressed to the Revenue authorities. We may have to say a word or two in connection with these documents as bearing on the other question as to the factum of adoption. But we may note at the present stage that while Exhibits XXIII and XXIV show that the petition that was presented was a communication of an adoption that had actually taken place, the copy of the petition which is Exhibit XXVI only supports the view that information was given that the 1st defendant entertained an idea of making an adoption in the future. We cannot suppose that Exhibits XXIII and XXIV have incorrectly recorded the contents of the petition. They are distinct that the request was to record an adoption that had already been made. In the year 1894 we have two documents. Exhibits D and XIV. They are of the same date. Exhibit XIV is a deed of adoption which recites an adoption having taken place about 14 months before that date. Exhibit D purports to be a deed of sale of some acres of the property of Rajacharlu in favour of the 1st defendant's sister. As regards Exhibit, XIV, it is worthy of remark that it is suspicions as it comes into existence such a long interval after the date of the actual adoption. It is equally singular that the adoption is now stated to be in the year 1893, and not in the year 1888 as one might infer from Exhibits XXIII and XXIV. Exhibits D and XIV have, however, this advantage that they are registered. As regards Exhibit D it is necessary to point out that the supposed sale does not appear to have been given effect to, for according to Exhibit XI, the self-same property that is dealt with in Exhibit 1) is treated as the property of the minor adopted son of Rajacharlu, i.e., the 2nd defendant, and a request is made that the property may be transferred to his name. Now this is very distinct evidence to show that Exhibit D was never acted on. In the year 1895 we have a hypothecation, that again recites that the 2nd defendant was the adopted son of the 1st. But no possession is given to the hypothecatee under this document, and there is no evidence that the conditions mentioned in that document on the happening of which possession of the property dealt with by the document is promised, ever happened or that possession was ever taken under it. We have been referred to a series of kadapas evidenced by Exhibits XV series and XVI series. There is no kadapa between the years 1893 and 1897, and the first registered kadapa is only in the year 1902, which is within six years before suit, There is no reason to suppose that any of these documents should necessarily have come to the knowledge of the plaintiff. As regards Exhibit D, it is a transaction between two sisters. Even if it ever really took effect, there was no reason for the outside world to talk about it. As regards Exhibit V, we have already remarked that it was only a hypothecation and no possession passed to a stranger which would invite attention and thereby put the person whose attention is so invited upon inquiry as to the source of the title of the possessor. As regards these kadapas, the first registered kadapa being only of 1902, it is unnecessary to make any remark that they are wanting in elements of publicity which may compel attention on the part of strangers.

4. The strongest reliance has, however, been placed by Mr. Narayanamoorthi on certain proceedings in connection with a suit of 1896. The 2nd defendant in this case was a party defendant in that suit and the 1st plaintiff's wife's sister was the 16th defendant in that suit. It is said on behalf of the defence that as the 16th defendant and the 2nd defendant in that case were parties to one and the same suit and the 21st defendant, who is the present 2nd defendant, was referred to therein as the adopted son of the 1st defendant, the 1st plaintiff, who, it is alleged, conducted the case on behalf of the 16th defendant, must have become aware of the reference to the 21st defendant as the adopted son of the present 1st defendant. There is no reliable evidence that the 1st plaintiff ever conducted the suit on behalf of his wife's sister. There is evidence given by the plaintiff's first witness (1st plaintiff himself) and the plaintiff's 10th witness that the 1st plaintiff's wife's sister had a son-in-law who would look after her affairs. There was no reason under these circumstances why the 1st plaintiff should have been interesting himself in a suit relating to the partition of the shares of a shrotriem village in which it is not in evidence that his sister-in-law stood to lose. Mr. Ramesam has, argued that the 21st defendant in that suit, i.e., the present 2nd defendant, was not a party to the suit of 1896 from, the beginning But we have no means of expressing any decided opinion on the subject. There is, no doubt, the vague evidence of some of the plaintiffs witnesses that he was not a party from, the beginning. But we do not think very much importance need be attached to the circumstance as to whether he was a party from the beginning or was only brought in at a later stage. The principal point with reference to which our attention has been drawn to the proceedings of 1896 is that the plaintiffs must have had notice of the description of the 21st defendant as the adopted son of the 1st defendant. Mr. Ramesam has called to our notice in this connection the fact that the compromise petition Exhibit X is signed only by the Vakil and not by the parties, viz., the 16th and 21st defendants. This is of some value to show that the contents of Exhibit X or the recitals in Exhibit X and the descriptions of the parties to that compromise could not have been brought home to the attention of every one of the parties to the compromise. On the whole, therefore, we see nothing in Exhibits X and VI to induce us to hold that the plaintiff must be supposed to have become acquainted with the fact of the adoption of the 2nd defendant.

5. Passing now to the oral evidence that has been adduced in connection with the question of knowledge, we have already said that the 1st plaintiff swears that he became aware of the factum of adoption only in 1906. There are certain witnesses on the side of the plaintiffs who seem to have been parties to the suit of, 1896. But nothing has been elicited in their evidence to make us hold that the plaintiffs had any means of knowing at the time of that suit that the 2nd defendant was alleged to have been adopted. We have already referred to the evidence of defence witnesses Nos. 3 and 4. There is the evidence of the defence, 8th witness which has no bearing on the question of the plaintiff's knowledge, though we may have to say a word about it in connection with the actual adoption. Upon a full review of all the evidence that has been adduced before us, we are not prepared to differ from the conclusion of the Subordinate Judge.

6. The next question is about the factum of adoption itself. The adoption is first of all according to Exhibits XXIII and XXIV in 1888. According to Exhibit XIV, which is the deed of adoption, it is 14 months before that date. There is oral evidence of a number of witnesses to show that the adoption actually took place in the year 1893. If the case were uncomplicated by the allegation of the adoption of the 2nd defendant in 1888, we should probably not have fell) disposed to discredit the evidence of the witnesses whom the defendants have examined. But taking that evidence in conjunction with the fact that there was a distinct averment in 1888, as shown by Exhibits XXIII and XXIV and also with the circumstance of a belated deed of adoption executed 14 months after the supposed date of adoption, we are not satisfied that the evidence of the defendant's witnesses is of such a character as to induce us to hold that the adoption actually took place in 1893, as alleged. The allegation of the adoption, according to the defendant's own case, as having taken place in 1888, must be deemed to be false. A deed of adoption of the time when the adoption takes place is not an unusual phenomenon. But a deed of adoption as in this case brought into existence 14 months after the date of adoption looks very suspicious. The suspicion arises from the fact that the upanayanam of the boy had been performed in 1893, a fact which, though not recorded in writing, must have been well-known to the people of Karupalli. The 1st defendant was only willing or her advisers would only be willing that she should adopt her brother, the 2nd defendant; And if the upanayanam had been performed in 1893, it was impossible under the law for the 1st defendant to adopt him. And if the persons who were concerned in bringing about an adoption would have no interest in making the adoption of an absolute stranger, it would become necessary for them, when they finally made up their minds to set up an adoption, to put it before the date of the upanayanain That is, if they thought of the adoption finally in 1894, they were bound to fix the date 14 months before the actual date on which the deed of adoption came into existence. We think this view of the fact explains why Exhibit XIV was not executed on the date of the alleged adoption. But when it came into existence it was pretended that the adoption had taken place, some 16 months before. We must, therefore, express our opinion that the adoption has not been satisfactorily proved to have taken, place in 1893, as alleged by these witnesses.

7. The question of the genuineness of the Will has not been argued before us in the view that we have expressed on the other questions with which we have dealt. We dismiss the appeal with costs.


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