SUBRAMONIAN KESAVAN Vs. NARAYANA PILLAI

JUDGEMENT

(1.) The first defendant appeals from the decision of the learned Single Judge in S. A. 1338/60 which was heard and disposed of along with S. A. Nos. 812 and 840 of 1960 by the learned Judge, since the main question that arose in the appeals was common. The suit was for redemption of mortgages executed from the Swaroopathu tarwad. The plaintiffs claim to belong to that tarwad; but according to the defendants, the mortgages were executed by Easwari Madhavi the last surviving member of the Swaroopathu tarwad and on her death the tarwad became extinct. According to the defendants, therefore, the plaintiffs were not competent to redeem. In answer to this contention, it was pointed out on behalf of the plaintiffs that on the death of Easwari Madhavi they were adopted into the family on the strength of a royal Neet and as such they are competent to redeem. Ext. P4 is the attested copy of the royal Neet confirming the adoption, by the sovereign. The validity of Ext. P4 is challenged by the defendants since according to them the copy has not been issued by a public officer as required by S.76 of the Evidence Act and as such the document ought not have been made the basis for awarding a decree to the plaintiffs. The defendants had also a case that the Neet in question does not conform to the form prescribed and followed by the sovereign in such cases. Exs-P5 and P6 are copies of judgments in A. S.197/1107 and A. S.328/56 respectively of the District Court, Trivandrum wherein the 'Dathu Neet' which is the subject matter of the present case, had come up for consideration and upheld by the learned Judge. Both these were relied on as prior transactions wherein the right was asserted and recognised. The defendants contended that Exs-P5 and P6 cannot be treated as particular instances coming under S.13 of the Evidence Act. These contentions were repelled and the plaintiffs were awarded a decree by the learned Munsiff which was confirmed in appeal by the Add. District Judge of Trivandrum and which was further affirmed by the learned Single Judge in second appeal. The first defendant has now come up before us in appeal on special leave.

(2.) The whole question centres round the validity or otherwise of Ext. P4 the copy of the 'Dathu Neet'. If the Neet is upheld the suit will have to be held as competent; but on the other hand if the Neet suffers any of the infirmities pointed out and as such inadmissible in evidence, the plaintiffs will have to be non suited. The fact that Easwari Madhavi was the last surviving member is not disputed; but the family was saved from extinction by the adoption of the plaintiffs into it, by virtue of the Neet. The first point emphasised in respect of Ext. P4 is that in so far as it is not issued by a 'public officer' as contemplated in S.76 of the Evidence Act it cannot be admitted in evidence. Under S.76, 'every public officer having the custody of a public document, which any person has a right to inspect, shall be competent, to issue a copy thereof together with a certificate written at the foot of the copy that it is a true copy.' Explanation to the section would say that, "any officer who, by the ordinary course of official duty is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of the section." Ext. P4 is seen to have been issued by one Prabhakaran Tampi who, at the time the copy was issued, was one in the personal staff of His Highness the Rajpramukh of Travancore - Cochin. The former States of Travancore and Cochin were integrated so as to form the United State of Travancore and Cochin under the terms and conditions laid down in the covenant wherein, in the place of the Maharajas of Travancore and Cochin the Rajpramukh of the United State of Travancore and Cochin, was installed as the head of the State and all rights, authority and jurisdiction belonging to the Ruler of either of the Covenanting States which appertain or are incidental to the government of that State had devolved on the United State. Sri. Prabhakaran Tampi who has issued the copy, as seen from the civil list, was a member of the personal staff of the Rajpramukh. The fact, therefore, cannot be disputed that Sri Prabhakaran Tampi under whose signature as officer in charge, Ext. P4 was issued, was a 'public officer' for purposes of S.76 of the Evidence Act. Learned counsel argued that since the right to inspect the document in question is not possessed by the public the document cannot be characterised as a public document. We do not see much force in this contention. The right to obtain the certified copy pre supposes the right to inspect; but the converse, viz., the right of inspection carries with it the right to take copies does not necessarily follow. In the present case the right to get a copy of the Dathu Neet' having been conceded, the other right, viz., the right to inspect must also be taken as conceded. There is no case for the defendant that the right to inspect was at any time foiled so far as he is concerned.

(3.) On the question of the validity of the Neet the point taken is that Ext. P4 does not show that "Adiyara" fees was paid. According to the learned counsel, for the validity of the adoption Adiyara fees should be paid. In the Principles of Marumakkathayam Law by M. P. Joseph at page 44 the learned author dealing with this question has pointed out that "the payment of Adiyara fees is not the indispensable condition precedent to the confirmation by the sovereign of the State, of adoptions made in the families of Malayalies." The learned author has cited in support of his view a Division Bench decision of the Travancore High Court reported in 6 TLR 108 (quoted by the learned single Judge himself), wherein the learned Judges have observed that payment of Adiyara fees is not essential to the validity of the adoption. The learned judges also discounted the view that Adiyara represented consideration for the grant. According to them Adiyara is "analogous to a Nazar" which is paid as a token of allegiance to the sovereign and has no connection whatever with the exercise of the prerogative.