THIRUMAL REDDIAR Vs. KOPPIAH REDDIAR

JUDGEMENT

(1.) THE defendant is the appellant. The plaintiff filed the suit for partition and separate possession of his half -share in the property belonging: to Koppiah Reddiar. Koppiah Reddiar and Ramaswamy Reddiar are brothers Ramaswamy Reddiar had two wives Subbammal and Veerangammal. In or about 1936, Ramaswamy Reddiar was keeping indifferent health and it is the case of the defendant that the present plaintiff, Koppiah Reddiar, who was about 6 years of age was adopted by Ramaswamy Reddiar. Thirumal Reddiar, the defendant herein, is Koppiah Reddiar's second son. If the defendant fails in. establishing that the plaintiff was adopted by Ramaswamy Reddiar, admittedly the plaintiff will be entitled to partition and separate possession of half -share in his father Koppiah Reddiar's property.

(2.) IN order to prove the adoption, the defendant examined three witnesses on his behalf and filed Exhibits B -1 to B -4. The adoption is stated to be in the year 1936, and soon after the adoption, Ramaswami Reddiar died, Veerangammal, the second wife of Ramaswami Reddiar, also died and Subbammal as the mother of the adopted son is stated to be in enjoyment of the property belonging to Ramaswamy Reddiar. Exhibit B -1 is dated 30th July, 1946. It is a sale deed executed by one Perumal Reddiar in favour of Subbammal and plaintiff Koppiah Reddiar. Koppiah Reddiar is described in this document as the adopted son of Ramaswamy Reddiar. Admittedly, afterwards Koppiah the plaintiff attained majority. He sold some of the properties belonging to Ramaswami Reddiar for himself and as guardian of his minor son in favour of Sundararamalinga Reddiar by Exhibit -2 dated 7th August, 1957. In this document it is recited that Koppiah Reddiar the plaintiff" is the natural son of Koppu Reddiar and the adopted son of Ramaswamy Reddiar. The properties that were sold were admittedly properties belonging to Ramaswamy Reddiar. Koppiah Reddiar also sold, under Exhibit B -3 on 23th July, 1959, for himself and on behalf of his minor son, the property for Rs. 200 in favour of one Perumal Reddiar and subsequently another item of property under Exhibit B -4 dated 28th April, 1959. It is admitted that the properties comprised in Exhibit B -3 and B -4 belonged to Ramaswami Reddiar. In these two documents, Exhibits B -3 and B -4 the plaintiff Koppiah Reddiar is described as the adopted son of Ramaswamy Reddiar. In 1958 one Alagu Reddiar gifted certain items of properties in favour of Koppiah Reddiar (plaintiff) under Exhibit B -5. In this document: also, the plaintiff is described as the adopted son of Ramaswamy Reddiar. A part from these documents, the defendant examined 3 witnesses on his behalf.. D.W.1 is Ramaswami Reddiar who spoke to the fact of adoption. The trial Court accepted his evidence; but the lower appellate Court rejected his evidence. His evidence cannot, therefore, be taken into account in the Second Appeal. The trial Court relying on the assertion of the plaintiff in the documents Exhibits B -2 to B -4 that he is the adopted son of Ramaswamy Reddiar, found that adoption had been amply proved and dismissed the suit for partition.

(3.) IN this Second Appeal, Mr. R. Ramamurthy Aiyar, the learned Counsel for the appellant, submitted that though the evidence regarding the factum of adoption was not accepted by the lower appellate Court, from the admissions made by the plaintiff in the documents Exhibits B -2 to B -4 the burden which lay originally on the defendant to prove adoption shifted to the plaintiff who admitted the factum of adoption in the documents and thereafter it was the duty of the plaintiff to explain the recitals in the documents and prove that there was in fact no adoption in spite of the recitals. The learned Counsel for the appellant relied on the decision of the Privy Council reported in Chandra Kunwar v. Chaudhri Narpat Singh, L.R. 34 IndAp 27 :, 17 M.L.J. 103 :, I.L.R. (1906) All 184. In that case one Raja Sher Singh had two issues Pran Kunwar and Jiwan Kunwar. Pran Kunwar had 3 sons Kishan Singh, Lodh Singh and Pratab Singh. Pratab Singh's son is Raja Mukund Singh the respondent before the Privy Council., The case of the appellant was that Raja Mukund Singh the respondent was adopted by Kishan Singh and therefore he had no claim over the property of Pratab Singh to which the appellant became entitled. On the facts, the Privy Council recorded (1) that the plaintiff Makund Singh more than once under his hand and seal stated that he was the adopted son of Kishan Singh which statement was in effect an admission that he had no title to the lands he sought to recover in these actions; (2) that at the death of Kishan Singh, Makund Singh was treated as the former's adopted son and in that character and by that right installed in the Raj Gaddi; (3) that according to the evidence of three at least of the plaintiffs' witnesses, on the death of Kishan Singh, Makund Singh entered into the possession and enjoyment of the farmer 's property and (4) that the explanation offered by the plaintiff for his admission in the deeds was according to the Privy Council either absurd or unproved. The Privy Council, on the facts, while laying down that the burden of proving that the adoption relied upon took place, was on the defendant observed, it could be effectually discharged by proving the plaintiff's solemn statement under hand and seal that the adoption did take place. The Privy Council further observed,