RADHAKRISHNA MUDALIAR Vs. CHINNAMMAL AND ORS.

JUDGEMENT

(1.) This second appeal is filed by the appellant, who is the second defendant in the suit O.S. No. 14 of 1973 on the file of the District Munsif's Court, Arni, challenging the legality and correctness of the judgment of the Subordinate Judge, Vellore, in A.S. No.155 of 1976. The brief facts of the case are: The appellant/second defendant is the son of one Sundaresa Mudaliar, who is the second respondent herein and first defendant in the suit. The plaintiff is the first respondent herein, and she is the sister of one Natesa Mudaliar and the second respondent Sundaresa Mudaliar, Natesa Mudaliar and Sundaresa Mudaliar, the second respondent herein, are brothers. According to the appellant, he was given away in adoption by Sundaresa Mudaliar to his brother Natesa Mudaliar. On that basis, the appellant herein resisted the claim of the first respondent, who is the sister of Natesa Mudaliar, for partition of her one-half share on the death of Natesa Mudaliar; the other half share being succeeded by the second respondent. The trial court found that the appellant failed to prove that he is the adopted son of late Natesa Mudaliar and therefore, decreed the suit for partition of one-half share filed by first respondent herein. As against the judgment, the appellant herein filed A.S.No. 383 of 1975 on the file of the District Court, North Arcot at Vellore, which was transferred to the Subordinate Judge of Vellore and numbered as A.S.No.155 of 1976, The learned Subordinate Judge, on a consideration of the oral and documentary evidence, affirmed the finding of the trial court negativing the case of adoption set up by the appellant but at the same time found that the appellant is entitled to recover one-half of the amount which the appellant had parted with for redeeming the property and taking steps to set aside the sale of the suit property by a mortgagee in O.S.No.295 of 1964 on the file of the District Munsif's Court Arni. This second appeal is filed challenging the legality and correctness of the judgment of the appellate court.

(2.) Mr. M.N.Padmanabhan, learned counsel for the appellant, has raised two contentions in support of his argument that the judgment and decree of the appellate court are not sustainable. They are:

(3.) In so far as the first contention is concerned, the learned counsel drew my attention to the evidence of D.Ws.1 to 3 who speak about the giving away of the appellant in adoption by his father, Sundaresa Mudaliar, the second respondent herein, to his brother Natesa Mudaliar even when he was alive. But the evidence of these witnesses will have to be taken in the light of the other documentary evidence and the circumstances of the case. All the documents to which the appellant was party, including his marriage invitation, do not refer the appellant as the adopted son of Natesa Mudaliar, but on the other hand refers to him as the son of Sundaresa Mudaliar. This circumstance alone reduces the probative value of the evidence of D.Ws,1 to 3 to almost zero. Learned counsel cited the decision in Kanthammal Vs. Bysani Sriramulu Chetti 100 L.W. 71 wherein Srinivasan, J. observed that in cases of ancient adoption documentary evidence may not be available. In the instant case, there is no dearth of documents. All the available documents point to the contra and in none of them the appellant is shown as the adopted son of Natesa Mudaliar. The decision cited, therefore, has no bearing to facts of this case. In view of the overwhelming documentary evidence pointing contra, D. Ws 1 to 3 cannot carry conviction and the conclusion of both the Courts below in this regard is correct. My attention has been invited to Ex. A-5, printed judgment in O.E. A. No.17 of 1972 O.E.P.No.645 of 1971 in O.S. No.276 of 1970, in which the learned District Munsif observes, after negativing the case of adoption set up, that the learned counsel for respondents contended that the first petitioner is not the defendant in the suit but it may be true that he is the adopted son of Natesa Mudaliar. The learned District Munsif, Ami, while negativing the case of adoption set out in the earlier portion of the order, made the above observation which will only have the effect of an obiter and in any event it cannot have the status of a finding rendered in a civil suit. Under the circumstances, the finding of question of fact by both the Courts below that the appellant cannot be the adopted son of late Natesa Mudaliar is correct and no interference is called for.