KANDASAMI PILLAI Vs. MUNISAMI MUDALIAR

JUDGEMENT

(1.) These two appeals arise out of a suit by the plaint iff-respondent for a declaration that a mortgage decree in favour of the appellant in A.S. No. 195 is not binding on the Subject-matter of the mortgage, and to recover certain lands sold to the appellants in A.S, No. 269, on the ground that the respective mortgage and sales were of property belonging to a public charity and were made in breach of trust by the alienor, defendant 1. The lands in question were dedicated to charity by one Valliammai Anni. This appears from an authenticated copy of this lady's will which has been produced by a French notary. The lady resided in Karaikal; her will was made there and was executed and deposited in a notary's office in accordance with the French law. It was not disputed in argument by Mr. Patanjali Sastri, the learned Counsel for the appellant in A. S No. 195, that there is a charitable trust or that under the terms of the will the plaintiff would be entitled to the trusteeship if he had by adoption become a member of defendant 1's family in which the trusteeship of the charity was vested. Dr. John however on behalf of the other set of appellants has addressed to us an argument, which will be dealt with later, on the construction of the will in relation to defendant 1's power to alienate the property. But all the appellants dispute the fact of the plaintiff's adoption, and it is common ground that if he was not adopted by defendant 1 he has no claim to be a trustee of Valliammai Anni's charities, which is the character in which he has brought his suit.

(2.) The plaintiff's adoption is alleged to have taken place on 12 May 1920. A registered adoption deed (Ex. A) of this date has been produced. This, in short, recites that, defendant 1 having no male issue nor any hope that one would be born to him, it was necessary to make arrangement for his salvation in the next world and for the maintenance and marriage of his three daughters; that he had accordingly got his father-in-law, Muthu-kumara Mudaliar, to give him his son, aged 18, namely, the plaintiff in adoption, and that he had settled all his properties on this son subject to a maintenance for himself and his wife. It was suggested by the appellants learned Counsel that defendant 1's motives were far less commendable than appears from the recital in the deed. It is in evidence that he was leading a vicious life, lavishing money on a dancing girl until her death in 1920; and the suggestion is that this adoption was a device for getting back through the plaintiff's agency properties which had been improperly alienated by defendant 1 from the trust. By way of showing that this so-called adoption was a sham it has been pointed out that defendant 1 was not more than 35 or 36 at the time, that his wife had already borne him three daughters, and, in point of fact she bore him a son two years afterwards, so that despair of male issue might be regarded as premature. Moreover, the evidence as to his state of health at the time did not denote any urgency for an adoption.

(3.) Another point made against the probability of the adoption is that two years later the plaintiff was married to one of defendant 1's daughters; but the plaintiff's witnesses have stated that such a marriage is in conformity with the usage of the community, and there was no cross-examination as to the truth of this statement. Again, the failure of the plaintiff to go into the witness box has been justly criticized as indicating no confidence in his ability to support the story of his adoption. This is not a case of the adoption of a child who would have no recollection of what had taken place, but the plaintiff was 18 years of age at the time and he would therefore have been quite capable of testifying to the act and to the fact of adoption. No doubt these matters would have an important bearing if there had been a conflict of evidence upon the fact of the adoption. But the evidence in the case is all one way. Five persons, P. W. 1 the defendant's widow, (he died when the suit was pending), P.W. 4, a purohit P. Ws. 6 and 8 and P. W. 10, a village Munsif, all depose to having been present and witnessed the adoption ceremony. Their evidence stands uncontradicted, and no reason has been given why it should be disbelieved. Another witness, P.W. 9, a Sub-Magistrate, stated that on the evening of the adoption defendant 1 told him that he had made the adoption and had executed an adoption deed. P.Ws. 4, 6 and 10 also speak to the execution of the deed, and Ex. A, which bears their signature as attesting witnesses, corroborates what they say. In the face of this direct evidence, and in the absence of any evidence to the contrary, it is not possible to hold otherwise than that the fact of adoption has been proved.