SITALAKSHMI AMMAL Vs. VENKATA SUBRAHMANIAN

JUDGEMENT

(1.) This is an appeal from the High Court of Judicature at Madras in a suit in which the infant plaintiff suing by his next friend, his father, Gopalkrishna Ayyar, claimed from the defendants possession of the properties of Sitarama Ayyar, who died in January 1922. The plaintiff claims to be the adopted son of Sitarama Ayyar and also to be devisee under a will of Sitarama Ayyar, said to have been made on the day of the adoption and confirming the adoption. The defendants are the widow of Sitarama, the mother of Sitarama, and one Seeni Nadalwar, a lessee of the property. They deny that there ever was any adoption or any will and upon those two issues of fact the case turns. The suit was brought in the Court of the Subordinate Judge of Dindigal. The Subordinate Judge after several days' hearing found against the adoption and the will : the High Court reversed these findings and decided in favour of the plaintiff in both issues. The defendant widow now appeals.

(2.) Sitarama, a man of about 46 at the date of his death had married three times. His first two wives had predeceased him, and the only issue a daughter had also died in infancy. About a year or two before his death he had married the second defendant a girl of about 12. In November 1921, the marriage was consummated after cohabiting with her husband for three days the girl returned to her father's house which is said to be about 100 miles from Palni where Sitaram lived. No inference as to the material relations is sought to be drawn from this fact. Such a temporary withdrawal from cohabitation by consent is said in such circumstances not to be unusual. Sitarma's health was not satisfactory. He was thought to be suffering from an affection of the throat and on one occasion at least had vomited blood. He had in consequence consulted doctors at Madras. What their advice was we do not precisely know but his illness apparently did not interfere with his ordinary avocations : in particular it did not prevent him marrying and consummating his marriage. On 3rd January 1922 he died after an attack of vomiting blood. The conflict between the parties arises as to the events of the last four days of his life. According to the case of the plaintiff Sitaram had an attack of vomiting on Saturday the 31 December. He became despondent about his life and determined to adopt a son a project which he is said to have entertained for two or three months previously. One Gopalkrishna, who had married a daughter of Sitarama's maternal aunt had according to his story been living in Sitarama's house for the past five years with one of his sons the infant plaintiff. Sitarama announced his intention of adopting the son and on Sunday the 1 January between 9.30 a. m. and 12. 30 the ceremony took place. About 20 or 30 persons were present when most had departed: Sitarama stopped a few that remained, said that he intended to make a will and asked them to return in the afternoon. They did so: a writer was present who prepared a draft from the dictation of Sitarama and a fair copy: and the latter was signed by the testator and witnessed. One of the witnesses was asked not to sign until after the arrival of some expected witnesses from the neighbourhood. They did not arrive and he appended his signature the next day or the day after. It had been intended to register the will but on Monday Sitarama was unconscious and too ill to attend to business: on Tuesday morning he died. The infant plaintiff performed the funeral obsequies in his capacity as adopted son.

(3.) The plaintiff called ten witnesses to speak to those facts nine of whom said they were present at the adoption of whom four also attested the will while a fifth was the writer of the will who had not attested. The defendants called four witnesses: they deposed that Gopalkrishna and his son were not living in the testator's house: on the contrary there was ill-feeling between them. One Ramakrishna Ayyar also a cousin of the testator said that he had been living in the testator's house for four months before his death and no adoption had taken place on Sunday, and he and not the infant plaintiff had, at the request of the mother, performed the funeral obsequies. This was confirmed by the other two witnesses, who also said that they visited the house regularly: that there was no adoption and that Sitaram had been in his usual health until Tuesday morning, when he died suddenly after a return from a walk.