THIRUNEELAKANTA MUDALIAR Vs. VELAYUDHA MUDALIAR

JUDGEMENT

(1.) This is an appeal by the first-deft. against the decree & judgment of the Ct. of the Sub-ordinate Judge of Tanjore in. O. S. No. 47 of 1946, a suit filed by the first resp. for a declaration that deft. 1 was not the duly adopted son of the late Shanmugha Velayudha Mudaliar. To appreciate the facts & the contentions of the parties the following genealogy may conveniently be referred to: DORAISWAMI MUDALIAR (DIED 1909) First wife (died) Sec Sundarathammal Nagammal Kamalammal Seilathammal Shanmuga Velayudha (D.) Thangavalu Palani Kunjalathamma =Ammani Ammal (D, 2) (D. 3) (D. 4) Shivasubramniam Thiruneelakantam (D, 1) Velayudha (Pltf.) Shanmugha Velayudha, Thangavelu & Palaniappa were residents of a village called Thiruppanthurtni in Tanjore district. They became divided in 1923. Shanmugha Velayudha married the second deft. & had three children by her, but all of them died. Early in his life he took to bad habits & was keeping a concubine by name Rajathi by whom he had three children. Notwithstanding the partition the brothers were having a joint mess till 1928, but Shanmugha Velayudha was living for two years prior to his death in Tanjore in a house in Sarat Subba Rao's lane. Ammani, who was practically discarded by him, was living with his brothers in the family house at Tiruppanthurthi. It is also in evidence that subsequently he discarded Rajathi & transferred his affections to her sister Saradambal. Rajathi filed an appln. under Section 488, Criminal P. C. against Shanmugha Velayudha claiming maintenance for herself & her children. Ammani also filed a suit in 1928 for maintenance in the District Munsif's Ct. at Tiruvadi. In the month of February 1929 Shanmugha. Velayudha had an attack of Typhoid. On 20-2-1929, at midnight, he was taken in a motor bus to Tanjore. He died at about 5 p.m. on 21-2-1929. On 25-2-1929 an adoption deed was executed by Ammani Ammal wherein it was recited that deft. 1 was given in adoption to her husband on 21st February at about 9-30 a.m. This document was attested by as many as nine witnesses, & most of them were closely related to the parties.

(2.) After the death of Shanmugha Velayudha, Rajathi filed a pauper suit O. S. No. 69 of 1930 in the Ct. of the Subordinate Judge of Tanjore, as the next friend of her son Dhandayuthapani who, she alleged, was the illegitimate son of Shanmugha Velayudha, & was entitled to succeed to the estate of the late Shanmugha Velayudha. She impleaded therein deft. 2 & deft. 1 as parties. Defts. 1 & 2 filed therein written statements contending 'inter alia' that deft. 1 was taken in adoption by the deceased on 21-2-1929. There was a specific issue in that case on the question of adoption. Though all the attesting witnesses to the adoption deed were alive, & would have given very useful evidence if the adoption was true. Thangavelu the natural father of deft. 1 thought fit to examine only Sabapathi Mudaliar, & Harihara Aiyar. The learned Sub-ordinate Judge held that the alleged adoption was not true. Ultimately that suit was disposed of in 1935 on a different point. Again Rajathi & her son filed O. P. No. 10 of 1943 in the Ct. of the Subordinate Judge of Tanjore for leave to sue 'in forma pauperis' to recover a half share in the suit properties, for herself or for her son Dhandayuthapani, or, in the alternative, for maintenance of Rs. 100 a month. That was dismissed on 30-12-1944.

(3.) Meanwhile all the members of the family put forward deft. 1 as an adopted son & documents were executed on that basis. Under Ex. D. 2 dated 30-5-1929 the patta was transferred to the name of deft. 1. He was also added as a legal representative to suits filed against the deceased Shanmugha Velayudha. In regard to the properties of Shanmugha Velayudha rent deeds were taken in his name. Even Thangavelu & Palaniappa took usufructuary mtges., Ex. D. 4 dated 18-3-1931 & Ex. D. 8 dated 18-3-1931 from deft. 1 represented by deft. 2 as his guardian in respect of amounts payable to them by Shanmugha Velaqudha. These documents continued to be taken in the name of the adopted son upto 1939. Disputes arose between defts. 3 & 4. Deft. 1's natural father filed O. S. No. 20 of 1945 in the Ct. of the Sub-ordinate Judge of Tanjore & obtained a decree in 1946.