ANNAMALAI Vs. M A M MEYYAPPAN AMBALAM

JUDGEMENT

(1.) THE unsuccessful plaintiff before the lower appellate court has preferred this second appeal challenging the judgment and decree passed by the Subordinate Judge, Devakottai, reversing the judgment of the District Munsif, Devakottai.

(2.) THE case of the appellant-plaintiff, hereinafter referred to as the plaintiff, who filed the suit for declaration and permanent injunction is briefly as follows: One M.A.Meyyappan Ambalam was the common ancestor and he is the grandfather of the plaintiff. THE said M.A.Meyyappan Ambalam had got two sons M.A.M.Subbiah Ambalam and M.A.M.Meyyappan Ambalam, the second defendant herein. M.A.M.Subbiah Ambalam has got three sons and the plaintiff is the second son of the said M.A.M.Subbiah Ambalam and he was born on 17. 5.1943. THE second defendant married one Meenakshi as his first wife in 1943 who died in or about 1945 due to small box. When the said Meenakshi got affected with small pox, she wanted the plaintiff to be adopted to herself and the second defendant as he had no issues, and further, she apprehended that she would die soon. THE plaintiff's grandfather M.A.Meyyappan Ambalam desired such adoption so that all the monies and properties should be equally divided between the two families.

(3.) ABOUT a year or two thereafter, the second defendant married the third defendant. In the meantime the grandfather M.A.M.Meyyappa Ambalam also expired. The natural father of the plaintiff and the adoptive father, the second defendant became divided by means of a registered partition deed dated 29.4.1949. In the said partition deed, the plaintiff was shown as the son of the natural father and he was represented by his natural father. It is stated that though the plaintiff is not made a eo nominee party,"the second defendant is the trustee for the plaintiff's share also so far as the share allotted to the second defendant. The plaintiff and the second defendant have not divided the properties so far. The second defendant has also no issues through his second wife, the third defendant. The second defendant's eye sight was affected and he was ailing. Taking advantage of the same, the relatives of the third defendant hatched a plan to knock off the properties of the second defendant and with the above object, they arranged to adopt the first defendant who is the son of the third defendant's sister, the fifth defendant ignoring the adoption of the plaintiff. After coming to know of the same on or about 1.2.1984 they have fixed 6.2.1984 as the date of adoption, the plaintiff questioned the pangalis who stated that the proposal was true and that they would not participate in the same and that they would support the stand taken by the plaintiff who was already the adopted son the second defendants. The defendants, did not pay heed to the words of the plaintiff and they determined to proceed with the adoption. All the efforts of the plaintiff to prevent the proposed adoption would be of no avail. Hence, filed the suit for a permanent injunction restraining the defendants 2 and 3 from adopting the first defendant and also restraining defendants 4 and 5 from giving in adoption the child on 6.2.1984 or any other date declaring the alleged adoption of the first defendant on 3.2.1984 as not true and legal. 5. The said suit was resisted by the second defendant and he filed a written statement wherein he admitted the relationship of parties and contended inter alia as follows: The second defendant emphatically denied the case of the plaintiff that he is the adopted son of the second defendant as false. He also denied that his first wife died of small box and she apprehended that she would die of small pox and she wanted the plaintiff to be adopted as his son. It is stated that the second defendant himself was only 19 years of age at the time of the alleged adoption and he had full prospect of a long and healthy married life. The age of the first wife who died in 1945 was only 18. To attribute to the couple such apprehension and expectation is not unnatural and it has been invented by the plaintiff for the purpose of this case without due regard to his past conduct in litigation. It is further stated that Dwayamushyayana form of adoption had long ceased to be in vogue. Even in this speculative suit with imaginary allegations, the plaintiff is not able to give the date and month of the alleged adoption which speaks volume against the truth of such incident. Further, the usual adoption murai is not at all referred to by way of narration. But, on the other hand as conceded by the plaintiff himself, by a registered deed of partition dated 29.4.1949 the second defendant and his brother divided the properties. The plaintiff is arrayed as the son of his natural father and the second defendant was arrayed on the other side as party No.2 and if really such an adoption in 1945 is true, the partition deed would never have been in the form in which it was written. Significantly, there is no reference at all about the alleged adoption of the plaintiff by the second defendant.