KANDALAM VENKUBAYAMMA Vs. KANDALAM NARASIMHA ROW

JUDGEMENT

(1.) The first question in the case is whether the plaintiffs are the reversioners of the first defendant. The plaintiffs claim to be six degrees from the common ancestor of themselves and 1 defendant's husband. The Subordinate Judge finds that the relationship set up by the plaintiffs is true. No serious attempt has been made before us to show that this finding is incorrect. We have no doubt that Exhibits A and B are genuine, Exhibits A and B are engrossed on stamp papers purchased just before the dates of their execution. They show that Chetti Vencatacharlu, the grandfather of the plaintiffs, was the grandson of another Chetti Vencatacharlu, and Rajacharlu, the grandfather of the 1 defendant's husband, was the grandson of one Anantachatlu, and also that Chetti Vencatacharlu No. 1 was a brother of Ananthacharlu. Exhibits Nos. I, III and IV, which are inam statements, show the pedigrees of the plaintiffs branch and of the 1 defendants branch. The plaintiff's pedigree is stated up to the common ancestor, Narasimhachar, and the pedigree of the 1 defendant's husband's father is carried up to Ananthacharlu. These documents taken together are sufficient to establish the relationship set up by the plaintiffs. There is also oral evidence in support of the plaintiffs case. That evidence confirms all that the documents establish We have no hesitation, therefore, in expressing our concurrence with the Subordinate Judge on the question of the plaintiffs being the next reversioners of the 1 defendant.

(2.) The next question is whether the plaintiffs were aware of the 2nd defendant's adoption more than six years before suit. Mr. Ramesam had invited our attention to several cases to show that the burden lies upon the defendants to prove that the plaintiffs did become aware of the adoption more than six years before the suit. He has called our attention to Lachman Lal Chowdhri V/s. Kanhaya Lal Mowar 22 C. 609 : 22 I.A. 51, which is a Privy Council case. Their Lordships observe at page 614 of the judgment in that case that it has not been proved that the reversioner was aware of the adoption before six years before the institution of the suit. They do not, however, raise any question as to on whom the onus lay and express their opinion upon it. That decision is of value only to show that their Lordships seem to speak as if the burden lay upon the person alleging knowledge on the part of the reversioner within six years before suit to show it. The next case, to which we were referred to, was Moidiyan's son Punnayil Kutti V/s. Raman Nair 31. M. 230;,18 M.L.J. 19 : 4 M. L T. 80. It was a decision upon a different article, No. 95 of the Limitation Act. The starting point for the period of limitation under that article is when the fraud becomes known. It is there distinctly held by this Court that it is upon the person alleging knowledge of fraud on the part of the plaintiff to show when he became aware of the fraud. In Rahimbhoy Habibboy V/s. Charles Agnew Turner 17 B. 341 : 20 I.A. 1, there is an expression of opinion by the Privy Council with reference to Section 18 of the Limitation Act. Their Lordships say "it is on the defendants to show when plaintiff became aware of the fraud." On the other side, Mr. Narayanamurthi drew our attention to Manik Chand Golecha V/s. Jagat Settani Pran Kumari 17 C. 518. There was no decision in that case on the question before us as to on whom the onus lay. But it is pretty clear that the learned Judges who decided that case seem to act upon the, view that the onus lay on the person who said that he knew of a particular fact at a particular time. Section 106 of the Indian. Evidence Act was also relied on by Mr. Narayanamurthi as showing that the burden lay upon the person within whose knowledge the particular fact specially lay. It is unnecessary for us to express any opinion on the question of onus. Assuming that the onus lay on the plaintiffs, we think it is sufficient for him to swear as to when he became aware of the adoption, unless the defendant by positive evidence brings home to the plaintiff knowledge of the factum of adoption before six years before suit. On the facts of this case, we are satisfied that if the burden lay upon the plaintiffs they have sufficiently discharged it by giving" evidence to the effect that they became aware of the adoption only in 1906. Against the oath of the 1 plaintiff, all that the defendants rely on is a number of circumstances from which an inference should, according to the defence, be drawn that the plaintiffs must have known long before that the adoption had been set up. Plaintiff himself is not cross-examined with reference to the evidence he gives as to when he became aware of the adoption. The defendants, no doubt, have examined two witnesses, i.e., the 2nd defendant himself has been examined as 3 defence witness, and a maternal uncle of Rajacharlu has been examined as the 4 witness for the defence. We may say at once that we do not attach the slightest weight to this testimony. The evidence of the 2nd defendant that when he was 12 years of age or less he went to Rajahmundry in connection with a litigation of 1895, and that he then saw the 1 plaintiff conduct the proceedings on behalf of his sister-in-law, is utterly unworthy of credit. Then as regards the story told by the 2nd defendant and by the defence 4 witness that on a particular occasion the 1 plaintiff happened to go to Vijjeswaram and there on the pial of the house of the 4 witness he asked a question as to who the 2nd defendant was and that both the 2nd defendant and the defence 4 witness informed him that the 2nd defendant was the adopted son of Rajacharlu, it is equally unworthy of credit.

(3.) Passing now to the circumstances which are relied on as showing that the plaintiffs must have had knowledge of the adoption, they areas follows in order of date. There are certain papers of the year 1888. They consist of an extract from a petition register, certain indorsements by the Revenue authorities and what purports to be a private copy of the petition presented, by the 1 defendant, to the Collector. According to the defence, they are put in to show that in 1888 there was an intention to make an adoption which was expressed to the Revenue authorities. We may have to say a word or two in connection with these documents as bearing on the other question as to the factum of adoption. But we may note at the present stage that while Exhibits XXIII and XXIV show that the petition that was presented was a communication of an adoption that had actually taken place, the copy of the petition which is Exhibit XXVI only supports the view that information was given that the 1 defendant entertained an idea of making an adoption in the future. We cannot suppose that Exhibits XXIII and XXIV have incorrectly recorded the contents of the petition. They are distinct that the request was to record an adoption that had already been made. In the year 1894 we have two documents. Exhibits D and XIV. They are of the same date. Exhibit XIV is a deed of adoption which recites an adoption having taken place about 14 months before that date. Exhibit D purports to be a deed of sale of some acres of the property of Rajacharlu in favour of the 1 defendant's sister. As regards Exhibit, XIV, it is worthy of remark that it is suspicions as it comes into existence such a long interval after the date of the actual adoption. It is equally singular that the adoption is now stated to be in the year 1893, and not in the year 1888 as one might infer from Exhibits XXIII and XXIV. Exhibits D and XIV have, however, this advantage that they are registered. As regards Exhibit D it is necessary to point out that the supposed sale does not appear to have been given effect to, for according to Exhibit XI, the self-same property that is dealt with in Exhibit 1) is treated as the property of the minor adopted son of Rajacharlu, i.e., the 2nd defendant, and a request is made that the property may be transferred to his name. Now this is very distinct evidence to show that Exhibit D was never acted on. In the year 1895 we have a hypothecation, that again recites that the 2nd defendant was the adopted son of the 1st. But no possession is given to the hypothecatee under this document, and there is no evidence that the conditions mentioned in that document on the happening of which possession of the property dealt with by the document is promised, ever happened or that possession was ever taken under it. We have been referred to a series of kadapas evidenced by Exhibits XV series and XVI series. There is no kadapa between the years 1893 and 1897, and the first registered kadapa is only in the year 1902, which is within six years before suit, There is no reason to suppose that any of these documents should necessarily have come to the knowledge of the plaintiff. As regards Exhibit D, it is a transaction between two sisters. Even if it ever really took effect, there was no reason for the outside world to talk about it. As regards Exhibit V, we have already remarked that it was only a hypothecation and no possession passed to a stranger which would invite attention and thereby put the person whose attention is so invited upon inquiry as to the source of the title of the possessor. As regards these kadapas, the first registered kadapa being only of 1902, it is unnecessary to make any remark that they are wanting in elements of publicity which may compel attention on the part of strangers.