P MUTHUPILLAI Vs. A THIRUMALAI

JUDGEMENT

(1.) THIS appeal is by the 2nd defendant, who failed in the courts below. The suit property originally belonged to one Sri Renga Nachiar ammal, who purchased it under a sale deed, dated 5. 12. 1939. Her husband Alagia singam Iyengar died in July, 1931. It is the case of the plaintiff that he executed a will, empowering his wife to adopt any one of the sons of her brothers. That will was executed on 9. 5. 1931, the Registration copy of which is marked as Ex. A-2. Thereafter, Sri Renga Nachiar purchased the property under ex. A-1. She executed a settlement deed in favour of her sister under Ex. A-4 dated 29. 5. 1942, giving her a life interest, with a provision for reversion to her heirs, after the death of the life-estate holder. On 1. 6. 1941 Sri renganachiar adopted the plaintiff, who was a son of her brother, and a deed of adoption was executed and got registered. Registered copy of which is marked as ex. A-5. Sri Renga Nachiar died on 25. 3. 1943.

(2.) ANDAL Ammal, the life-estate holder, executed a mortgage under Ex. B-20 on 19. 12. 1964. There was a suit on the mortgage in O. S. No. 259 of 1967, on the file of the District Munsif, Srivilliputhur. A decree was passed in the suit and the property was brought to sale. The court auction was held on 18. 7. 1968 and the sale certificate was issued in favour of the 1st defendant on 23. 12. 1968, under Ex. B-2. He took delivery on 15. 2. 1965, under ex. B-3, and sold the same to the 2nd defendant on 6. 2. 1969 under Ex. B-1.

(3.) IN my opinion, none of the decisions referred to by learned counsel for the appellants will have any bearing in the present case. They are all cases, in which the adoption is challenged by the persons who would be otherwise entitled to succeed to the property, and the question arose between the members of the family who would have in the natural course succeeded to the property, but for the adoption. But in the present case, it should not be forgotten that the adoption is challenged by a stranger who had purchased only the life estate of'a'who had no right to hold the property after her death. The defendants are relying upon the principle that the burden is always on the plaintiff to prove his title in order to dislodge the person in possession when the title is in dispute. When such a case is being considered it should not be forgotten that on the facts of this case it, is well high impossible for the plaintiff to bring to the court the persons who were directly connected with either the adoption or the Will of alagia Singam Iyengar, who empowered his wife to take one of her nephews in adoption. The will is dated 9. 5. 1931. The plaintiff has stated categorically that the attestors and scribes of Will and the deed of adoption are dead and that statement is not in dispute. The deed of adoption is dated 1. 6. 1942 and the attestors and the scribe are no more. It is also not in dispute. Both the documents are registered documents and registration copies thereof have been produced before the court. The plaintiff has spoken to the fact that he produced the originals in O. S. No. 60 of 1947 to establish his case as adopted son of Sri Renga Nachiar and that he did not take back those documents from court. Both the courts below have accepted that statement and, sitting in second appeal, I cannot hold that the acceptance of plaintiff's version by the courts below is erroneous. Thus, the plaintiff has made out a case for producing the secondary evidence in the shape of registration copies of the two documents. It is contended by learned counsel for the appellants that the plaintiff ought to have been diligent and got back the documents as soon as the suit O. S. No. 60 of 1947 ended. It is too well known that be every person does not have the foresight to strong then his claim with documentary evidence and protect himself when he had no doubt whatever that his claim would ever be disputed. Viewed in the background that none of the members of the family had ever challenged his adoption, the plaintiff had no necessity to think at that time that long afterwards in 1964 Andal Ammal would create an encumbrance and bring a handle in the way of the plaintiffs getting the property after her death. The mortgage of Andal Ammal was only in the year 1964 and the purchase by the defendants was in 1969. Andal Ammal lived thereafter for eleven years and soon after her death the plaintiff had issued notice to the defendants asserting his title.