KRISHNA PILLAI Vs. VELAYUDHAN PILLAI

JUDGEMENT

(1.) DEFENDANT in O. S. No. 156 of 1981 on the file of the Prl. Sub Court, quilon, is. the appellant. The suit is for declaration of title and recovery of possession with mesne profits.

(2.) PLAINT schedule property originally belonged to Nani amma who was the aunt of the plaintiff. She obtained the property by virtue of a partition deed executed by the members of her family in 1955. Nani Amma executed a gift deed Ext. Al in favour of the plaintiff on 30-11-1970 where by she conveyed all her rights in favour of the plaintiff reserving the right of enjoyment of the plaint schedule property and of residence in the building, during her life-time. She died on 24-7-1975. From that date the plaintiff was entitled to all the rights of Nani Amma and the entire rights in the property vested absolutely in the plaintiff. As the gift deed came into effect from the date of registration, Nani Amma had no right to revoke the gift deed and to create another deed of gift in favour of the defendant. The plaintiff had to go to distant places in connection with his business activities. The defendant used to reside with Nani Amma as per the direction of the plaintiff. While so, in 1977 one Kesava Pillai filed a suit against the plaintiff and Nani Amma and obtained an attachment order attaching the plaint schedule property. PLAINTiff alleged that the gift deed in favour of the defendant was created utilising the papers entrusted with the defendant, that it is vitiated by fraud and that in the circumstances, the plaintiff is entitled to recover possession of the plaint schedule property.

(3.) IN this appeal, learned counsel for the appellant has challenged the finding of the court below. Learned counsel submitted that there is no evidence of any legal adoption- of Sreedharan Pillai by Nani Amma or by her husband and that therefore no right over the property devolved on Nani Amma on the death of Sreedharan Pillai and that Nani Amma had no competence to create a gift deed in favour of the plaintiff. Learned counsel submitted that the circumstance that Sreedharan Pillai was brought up and educated by Nani amma and that he was living all along with her is not or which would show that sreedharan Pillai was adopted by Nani Amma or her husband. IN order to appreciate the contention of the learned counsel on this aspect it is profitable to quote the relevant portion of Ext. A6 which is the gift deed executed by Nani Amma in favour of Sreedharan Pillai. which reads as follows: Learned counsel contended that there is no indication in ext. A6 that Sreedharan Pillai is the adopted son of Nani Amma. IN Ext. A6 sreedharan Pillai is described as son of Padmanabha Pillai, and that gives an indication that Padmanabha Pillai and Nani Amma adopted Sreedharan Pillai as their son. It is not disputed that Padmanabha Pillai is none other than the husband of Nani Amma. No doubt, mere statement in a document that a person is the son or adopted son is not a conclusive proof to hold that as a matter of fact there was adoption. IN Banwari Lai v, Trilok Chand and others (AIR 1980 SC 419), the Supreme Court observed as follows: "the statement made by the testator in the Will about defendant No 1 as his adopted son is certainly a piece of admissible evidence but there is no rule of law or prudence laying down the principle that such statement must be regarded as conclusive and this was also the view taken in Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh (AIR 1927 pat. 61 ). " Therefore it is clear that though a statement describing that a person is an adopted son or indicating that he is an adopted son is certainly a piece of evidence though it is not conclusive in nature. IN this case, there is evidence to show that from his birth Sreedharan Pillai has brought up by Nani Amma. That has been referred to in Ext. A6 itself. P. W. 1 in his evidence has deposed that Sreedharan Pillai was adopted by Nani Amma. He also stated that the mother of Sreedharan Pillai died in the hospital and Nani amma took the child and brought him up and educated him. IN the circumstances, the statement contained inext. A6 has been corroborated by the evidence of P. W. 1 and I do not find any reason to differ from the view expressed by the court below that Sreedharan Pillai was the adopted son of Nani Amma.