GANGAMMA ALIAS CHINNAKEMPAMMAL Vs. CUDDAPAH KUPPAMMAL

JUDGEMENT

(1.) The plaintiff sues as the adopted daughter of the first defendant, who is a dancing girl by caste and profession, claiming a share in immovable property, jewels and cash on the basis that she and her adoptive mother constituted a joint family possessed of property in which she is entitled to claim a share by partition. The plaint is drafted just as if it were an ordinary partition suit under the Hindu Law, and there is even an allegation that the sale of one item of property to defendants 4 and 5 is not for family necessity, but for immoral purposes and not binding on the plaintiff. Throughout the plaint it is assumed that the adopted daughter of a devadasi living jointly with her mother has aright to claim partition, the suit not being expressly based on any plea of special custom or contract to that effect. Defendants 2 and 3 are impleaded on the ground that they have joined in the sale deed in favour of the fourth defendant and because the first defendant alleged that the second defendant was a member of the joint family. The third defendant is the daughter of the second defendant. The fourth defendant is the wife of the fifth defendant and they are stranger-purchasers of one item of property. The questions arising in this suit relate to the fact and validity of the plaintiff's adoption, the existence of a joint family, the right of the plaintiff by virtue of the adoption or by virtue of the existence of a joint family to claim partition, the contribution by the plaintiff of her earnings to the family funds, and the legality of a claim based on the contribution of moneys, presumably the result of immoral earnings. There are also the usual contentions regarding the alienation of a house to defendants 4 and 5. I will deal firstly with the question of fact.

(2.) The first defendant is an elderly woman who admittedly has practised the calling of a dancing girl in her youth. It is well established that she adopted the second defendant many years ago. The documents relating to the dedication of the second defendant are not available, but there is no doubt that she was dedicated to the temple by her adoptive mother. The first defendant in 1917 (Ex. IV) applied to a Fund for a mortgage, giving a genealogical tree in which she shows the second defendant as her daughter. There was also a similar application in 1924 (Ex. V), after the plaintiff had come to live with the first defendant, to which also she appended another genealogical tree showing the second defendant as a daughter and the third defendant as a granddaughter and ignoring the plaintiff. The plaintiff herself was born a Vanniya. Her parents died in her infancy and she was in the custody of her brother-in-law, P.W. 3, Rangaswami Naicker. There is considerable diversity of evidence as to how she came to live with the first defendant. It is common ground that she did join the first defendant when she was six or seven years old. She herself has no recollection of the alleged adoption. Her brother-in-law, P.W. 3, states that he was a poor man and found difficulty in maintaining the plaintiff after her mother died, that Rajammal (D.W. 2) the wife of the first defendant's brother, and a native of Tirupporur where P.W. 3 lives approached him on behalf of the first defendant and he agreed to give the plaintiff in adoption to the first defendant, that there was a feast to which the members of his community were invited and that on that occasion the first defendant and D.W. 2 came and took the plaintiff. He also states that the first defendant had previously approached the plaintiff's mother during her lifetime with a view to the adoption and that the latter had agreed to it.

(3.) I have no hesitation in finding that this story of the circumstances in which the plaintiff went to live with the first defendant is not the whole truth. The most significant fact is the existence of a document (Ex. VIII), dated the 29 December, 1922, admittedly executed by P.W. 3 and his wife, which recites that the plaintiff has been given by them to one Chinnappa Naicker, who is authorised to maintain the plaintiff and to arrange for her marriage after she attained puberty or dedicate her to a temple in accordance with custom. This Chinnappa Naicker is dead. He is alleged to have been a relative of P.W. 3 and also a relative of D.W. 2. This is difficult to believe, for P.W. 3 is a Vanniya while D.W. 2, though she married into the dancing girl caste, is by birth Balija. The D.W. 2 herself says that she first saw the plaintiff in the house of this Chinnappa Naicker, who told her that the child had been left with him by P.W. 3 owing to his poverty. According to D.W. 2, the child wanted to go to Madras and she took her without any formal transfer of guardianship and the child lived for a while with D.W. 2 in the ground floor of the house, the upper storey of which was occupied by the first defendant. There, she made friends with the first defendant's grand-daughter, the third defendant, a child of the same age, and gradually she came to live upstairs-with the first defendant instead of downstairs with D.W. 2, It seems to me that this evidence is much more probably true than the story of P.W. 3 that he himself, in pursuance of the wishes of the plaintiff's mother, formally gave the child in adoption to the first defendant.