MINOR KALYANI Vs. CHELLIAH

JUDGEMENT

(1.) THE above second appeal has been filed by the plaintiff who has since been declared as a major, who was successful before the trial court, but lost before the first appellate court. THE suit O. S. No. 835 of 1988 was filed before the District Munsif Court , Tirunelveli for a declaration that the plaintiff was the adopted daughter of one Soundarapandian of Vickaramasingapuram entitled to succeed to his estate. THE case of the plaintiff was that she is the 2nd daughter of the 3rd defendant and P. W. 4 and she has been given in adoption to one Soundarapandian co-brother of her natural father the 3rd defendant who was none other than the husband of the elder sister of P. W. 4, the natural mother of the plaintiff. THE defendants 1 and 2 are the natural brothers of late Soundarapandian. Soundarapandian who has adopted the plaintiff died and thereafter his wife Sornam also died. It is in such circumstances the plaintiff' ; s maternal uncle-cum-next friend has filed the above suit by representing the minor.

(2.) THE defendants 1 and 2 disputed the claim of adoption and while further disputing the creditabil-ity of the materials produced by the plaintiff in support of the claim of adoption also contended that the documents ex. A-4 dated 31. 1. 1980 came to be obtained under coercion and that a complaint of the same was made on 14. 1. 1980 under Ex. B-5 to the Deputy Inspector General of Police, Tirunelveli by the defendants and that therefore, there are no materials to substantiate or to legally prove the adoption. It is also contended for the defendants that defendants 1 and 2 who are brothers were close to their deceased brother and there was no need or occasion for adoption of the minor plaintiff and that at any rate the materials produced by them would go to show that defendants 1 and 2 were being nominated to receive the insurance benefits etc. , of the deceased Soundarapandian and that they had also male children and there was no need for adopting a female child and that too, from co-brother' ; s side.

(3.) I have carefully considered the submissions of the counsel appearing on either side in the light of the evidence on record. Learned counsel for the appellant invited my attention to the evidence of p. W. 4, the natural mother of the plaintiff and also Ex. A-4, dated 13. 1. 1980 on which strand reliance came to be placed by the learned trial Judge. Per contra, the learned first appellate Judge has chosen to appreciate evidence in his own may, of course, as was permissible for him as the first appellate court, and rejected the probative value of Ex. A-1 on the ground that the alleged adopted father or mother were not parties to either Ex. A-1 or Ex. A-2 and that therefore, those materials did not support the case of the plaintiff. Coming to ex. A-4, the learned first appellate Judge thought fit apparently in the teeth of the complaint lodged by the defendants 1 and 2 before the police higher authorities on the very next day which came to be marked as Ex. B-5 to doubt the credibility of Ex. A-4. In the absence of any other document as corroboration to ex. A-4 evidencing the partition, the learned Judge appears to have thought that ex. A-4 by itself could not be relied upon to convey any interest in any immovable property since it was an unregistered document. The question that has to be considered and that was urged before me is as to whether the plaintiff/ appellant cannot take advantage of the position or the statement admitting the status of the plaintiff as adopted daughter of one Soundarapandian and Sornam and whether the defendants 1 and 2 revise from the statements made therein. This is the only thing on which the learned first appellate Judge has differed from the view taken by the learned trial Judge on the probative value of the statement in a document said to have been executed under compulsion in respect of which a police complaint has also been lodged initially and marked as ex. B-5. If the first appellate Judge, discharging his functions as a court of first appeal has chosen to doubt the credibility of a document. The same cannot be disturbed, in my view, unless such appreciation of evidence is shown to be patently illegal or perverse and, there is very little scope for this Court to interfere with. The findings on those facts of this case. Similarly, on going through the records and the findings of the learned first appellate Judge, I am of the view that sound reasons based on records and materials have been given by the learned first appellate judge to conic to a conclusion different from that of the learned trial Judge and such conclusion of the learned first appellate Judge can not be said to suffer any patent error of law a vitiated by perversity of approach in the matter of appreciation of evidence. The points highlighted by the first appellate Judge based on the material marked as Ex. B-1 as also the other material in the form of Ex. B-2 or B-5 would go to show that the conclusion arrived at by the learned first appellate Judge cannot be casticated as either rash or unreasonable or be condemned as not based on any evidence. The second appeal therefore fails as of no merits and shall stand dismissed. No costs. .