Kanchana Vs. S. Ramasami - Court Judgment

SooperKanoon Citationsooperkanoon.com/828201
SubjectProperty
CourtChennai High Court
Decided OnMar-25-1997
Reported in(1997)2MLJ669
AppellantKanchana
RespondentS. Ramasami
Cases ReferredMadhusudan Das v. Narayani Bai
Excerpt:
- k. govindarajan, j.1. the defendant who suffered the decree before the lower court, in o.s. no. 101 of 1990, on the file of the principal subordinate judge, tirunelveli, has filed the above appeal. the plaintiff filed the suit for declaration that the plaintiff is entitled to the suit properties and for directing the defendant to handover possession of the suit properties, on or before 5.12.1994, for mesne profits, and for costs. according to the plaintiff the suit properties originally belonged to one parijatham ammal, the widow of the plaintiff's brother srinivasaga naidu. he died in the year 1965. after his death the major portion of the suit properties had been inherited by the said parijatham ammal. other properties were acquired by the said parijatham ammal out of the income from her husband's estate. the said parijatham ammal died intestate on 18.8.1987 leaving no issues. the plaintiff is her only heir under section 15 of the hindu succession act as the plaintiff is her husband's brother. it is the specific case of the plaintiff that there is no nearest heir on the death of parijatham ammal and so the plaintiff is entitled to. the suit properties. the defendant is the parijatham ammal's brother's daughter. the defendant's father, was assisting parijatham ammal for sometime in managing the business. in recognition of the same, parijatham ammal transferred one bus along with route permit to the father of the defendant. later some disputes arose between them and while they were pending, parijatham ammal died. according to the plaintiff, the plaintiff, after the death of parijatham ammal, took possession of some items of the plaint schedule properties. when the defendant's father and his sisters attempted to forcibly dispossess the plaintiff, the plaintiff filed a suit o.s. no. 932 of 1987 on the file of the district munsif court, ambasamurdram for permanent injunction restraining them from interfering withjiis possession and enjoyment. the plaintiff applied and obtained interim injunction in i.ano. 1888 of 1987 on 21.8.1987. the defendant was also impleaded as a party to the said suit. the said suit was subsequently transferred to the additional district munsif court, tirunelveli and re-numbered as o.s. no. 1156 of 1989. subsequently, the plaintiff withdrew the said suit with permission to file a fresh suit for title, and accordingly permission and granted. according to the plaintiff, the defendant is not the adopted daughter of said parijatham ammal and such adoption did not take place and parijatham ammal never executed any document relating to the said adoption. even the will relied on by the defendant's father is also a fraudulent one and parijatham ammal never executed such a will. since the plaintiff was forcibly evicted by the defendant's father, the defendant's possession is illegal and she cannot claim any right in the properties. hence the plaintiff had filed the above suit.2. the defendant who was a minor at the time of filing the suit, filed a written statement through her mother and guardian. after she attained majority, she filed additional written statement. according to the defendant, she was born on 8.5.1975. on the 40th day, she was given in adoption by the natural parents to the said parijatham. the said adoption was in accordance with hindu law after following all rituals and rites. to confirm the said adoption, the said parijatham ammal executed a registered deed on 24.2.1982. according to the defendant, the value with respect to the suit properties are not properly mentioned in the plaint. the plaintiff has filed the suit without even impleading the other parties who were impleaded in o.s. no. 932 of 1987, though that suit was withdrawn with liberty to file a fresh suit. after the demise of the said srinivasaga naidu, dispute arose between the wife and his sisters on the one side, and the plaintiff, his minor sons, his brother and brother's sons on the other side. so the late parijatham ammal and her two sisters, namely, rathi and santha filed o.s. no. 82 of 1966 on the file of sub court, tirunelveli, which ended in compromise and a compromise decreed was passed on 7.3.1967. as per the terms of the compromise, the properties relating to parijatham ammal are given to her absolutely with full power of alienation and encumbrance and either the present plaintiff or the other defendants in o.s. no. 82 of 1966 are not entitled to the same. the defendant denied the fact that parijatham ammal died on 16.8.1987. on the death of parijatham ammal, the suit properties never devolved upon the plaintiff. but the suit properties devolved upon the defendant, as her adopted daughter. the late parijatham ammal executed a will bequeathing the properties in favour of the defendant. the defendant was adopted by late parijatham ammal by performing all rituals and rites. to avoid any complication and dispute, late parijatham ammal executed a deed of adoption confirming the factum of adoption. at no point of time, the plaintiff is in possession of any one of the properties belonged to the estate of parijatham ammal and the defendant has been in possession with absolute right from the date of demise of her adoptive mother. the possession of the defendant is valid and legal and the defendant has every right to be in possession of the properties belonging to her late adoptive mother. the defendant is not bound to render accounts. according to the defendant, the estimation of the plaintiff of the mesne profits is not correct. according to the defendant the plaintiff cannot be a heir to the said parijatham ammal. in view of the compromise decree passed in c.s. no. 82 of 1996, the plaintiff is not entitled to inherit the suit properties. on the basis of the above pleadings, the defendant prayed for dismissal of the suit with cost.3. the trial court after considering the pleadings framed six issues. on the side of the plaintiff, the plaintiff and one renga krishnan were examined as p.ws. 1 and 2 and marked exs. a-1 to a-7. on the side of the defendant, five witnesses were examined and marked exs. b-1 to b-25.4. the trial court, while considering issue no. 2, found it in favour of the plaintiff. regarding adoption, under issue no. 1, the trial court held that the defendant has not proved the factum of adoption and the validity of the document. regarding the will, under issue no. 3, the trial court held that the defendant has not proved the same in accordance with law. on that basis the trial court found the other issues in favour of the plaintiff and decreed the suit only with respect to item nos. 1 to 6 of the suit properties and dismissed the suit with respect to item nos. 7 and 8 of the suit properties. aggrieved against the same, the defendant in the suit has filed the present appeal. against the dismissal of the suit, with respect to item nos. 7 and 8 of the suit properties, the plaintiff has not challenged the decree.5. there is no dispute that the suit properties, item nos. 1 to 6 belonged to deceased parijatham ammal. the only dispute is whether the plaintiff/respondent is entitled to inherit the suit properties as a heir of the said parijatham amrnal under section 15(1)(b) of the hindu succession act or the appellant/defendant as claimed by her.6. mr. v. ramajagadeesan, learned counsel for the appellant, to exclude the plaintiff from claiming any right as heir of the said parijatham ammal, has placed four hurdles, viz., (1) under ex. b-16, which is the compromise decree in o.s. no. 82 of 1966, dated 7.3.1967, the plaintiff had given up all his rights in the suit properties and so now he cannot claim any right; (2) the defendant had been adopted by the said parijatham ammal; (3) under ex. a-19 will the said parijatham ammal, bequeathed her properties in favour of the defendant; and (4) in any event, there are other heirs of the deceased parijatham ammal available and so the plaintiff alone cannot claim right.7. though it is settled law that the plaintiff shall succeed or fail on their own pleading and evidence, in the present case, it cannot be disputed in the normal course, the plaintiff is entitled to succeed the estate left by parijatham ammal under section 15(1)(b) of the hindu succession act, leave alone the fact whether the plaintiff alone is entitled or there are other persons also available to inherit along with him. i will discuss about the same latter. so, the appellant has to establish her rights in the suit properties to dispose the natural succession.8. now, i have to find out whether the appellant has established the grounds raised to deny the plaintiff from claiming the suit properties.9. the first submission of the learned counsel for the appellant is that in view of ex. b-16 compromise decree dated 7.3.1967 made in o.s. no. 82 of 1966 on the file of the sub court, tirunelveli, the plaintiff, cannot claim any right in the suit properties. that suit was filed by parijatham ammal and her sisters against the brothers, sisters of the parijatham's husband and the plaintiff. the plaintiff is the fifth defendant in that suit and signatory to the compromise memo. the learned counsel has relied on clauses 15 and 16 of the compromise decree which reads as follows:the first plaintiff (parijatham ammal), the wife of the deceased srinivasaga naidu, takes the estate with the liability as his wife and she is free to deal with the estate as she likes. if she should leave behind any asset unprovided, whatever left by her when she dies shall be taken by plaintiffs 2 and 3 and their brother murugan. others have no claim over the same. the parties plaintiffs 1 to 3 and defendants 1 to 7 have agreed to these terms and a decree may be passed on these terms. the plaintiffs can take an ex pane decree against the 8th defendant declaring the absolute ownership and title of the first plaintiff to the suit properties and asset left by srinivasaga naidu. parties have had the whole translated and have accepted all the terms and pray for a decree on these terms.no doubt these clauses in the compromise decree, ex. b-16 prohibit the plaintiff in claiming rights in the estate of parijatham ammal.10. the question to be decided is whether the defendant/appellant can rely on the said ex. b-16 to non suit the plaintiff. the learned counsel for the appellant has submitted that the respondent/plaintiff has not even mentioned about this decree under which the plaintiff's rights had been restricted and only in the written statement the appellant has mentioned about ex. b-16. according to the learned counsel, in view of ex. b-16, the plaintiff and other heirs of parijatham ammal cannot have any right in the properties, it is his further submission that in the absence of any pleadings to that effect that the compromise under ex. b-16 was obtained under coercion or compulsion will bind on the parties to the memo, and the trial court without any basis has come to the conclusion that the said decree was not acted upon and so the plaintiff cannot be deprived of his rights.11. per contra to this submission, mr. t.r. mani, the learned senior counsel for the plaintiff/respondent has submitted that the suit properties in this case are not the subject matter in suit o.s. no. 82 of 1996 and so if there was any compromise with respect to those properties, it cannot be enforced unless that decree is registered. according to the learned senior counsel, the plaintiff/respondent is not estopped from claiming rights in the suit properties, unless it is specifically raised on the written statement. learned senior counsel has relied on the deposition of d.w. 5 (appellant) who had deposed that the suit is filed not on the ground that no other person is entitled to the suit property. learned senior counsel has further submitted that pursuant to the compromise decree in ex. b-16, the respondent/plaintiff had given up some rights which he is entitled under law and so such action of giving up of the rights amount to transfer in the immovable property and unless it is registered, it cannot be relied on.12. it is the admitted fact that the properties covered in this suit are not the subject matter of the suit in o.s. no. 82 of 1966. in clause (15) of the terms of compromise relied on by the learned counsel for the plaintiff, there is a restriction with respect to the claim made by the defendants therein. as the suit properties covered in the present suit are not the subject matter in that suit. so, as rightly submitted by the learned senior counsel for the respondent/plaintiff the appellant/defendant cannot rely on the decree i.e., ex. b-16 to non-suit the plaintiff unless it is registered. in similar circumstances, the apex court has held in the decision reported in bhoop singh v. ram singh major : air1996sc196 as follows:we have to view the reach of clause (vi) which is an exception to sub-section (1), bearing all the aforesaid in mind. we would think that the exception engraftal is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of rs. 100 or upwards. any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.it would, therefore, be the duty of the court to examined in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of rs. 100 or upwards in favour of other party for the first time, either by compromise or pretended consent. if later be the position, the document is compulsorily registerable.so, the compromise memo, ex. b-16 cannot be allowed to be relied on by the appellant against the plaintiff/respondent, in this case admittedly, the decree in ex. b-16 has not been registered. even if it is construed as family arrangement, ex. b-16 would require registration under section 17 of the registration act. the supreme court in the decision reported in tek bahadur shujil v. debi singh shujil (1966) 2 s.c.j. 290 follows:family arrangement as such can be arrived at orally. its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. the memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. it is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. it is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.so, unless it is registered, the rights mentioned in the compromise deed, would not pass on to the beneficiaries, as mentioned in clause 15 of the compromise - decree, ex. b-16. moreover, under compromise decree, no right is given to the appellant. the rights were given only to the sisters and brother of the deceased parijatham ammal. so, i find that the rights of the plaintiff, if he is otherwise entitled, cannot be denied on the basis of ex. b-16.13. next, the learned counsel for the appellant has relied on the will executed, which is marked as ex. b-19, dated 20.2.1982. according to the learned counsel, one attesting witness was examined to prove the will. the other attesting witnesses and scribe died and so even according to the will, the appellant is entitled to the property and the plaintiff/respondent cannot have any right over the suit properties. the learned senior counsel for the respondent has submitted that even the execution of the will has been denied in the written statement, as it is a fraudulent one. the learned senior counsel brought to my notice ex. a-17 under which the earlier will ex. b-19 had been cancelled. this fact is spoken to by p.w. 1. ex. a-17 has been proved by examining the attestor. in view of the cancellation of the will ex. b-19, i am not going to discuss whether the appellant has proved ex. b-19 in accordance with law. even assuming that the will is valid, subsequently, it was cancelled, under ex. a-17. so, the appellant cannot claim any right under ex. b-19.14. the next point raised by the learned counsel for the appellant is that the palintiff alone is not entitled to claim right in the suit properties. there are other sharers and on that basis the suit could be dismissed. as rightly submitted by the learned senior counsel for the respondent, there is no pleading to the effect that apart from the plaintiff other heirs are also available. this point had not been raised and so there was no issue before the lower court. consequently, there was no occasion for the trial court to decide the same. the plaintiff being the heir of the husband of parijatham, according to sub-section 2(b) of section 15 of the hindu succession act, the plaintiff alone is entitled to the suit-properties. others would be excluded under section 9 of the act. there is no dispute that the other brother of srinivasaga naidu, viz., sadagopan died in 1969 and the plaintiff who comes under the entry ii (3) in class ii, will exclude the others who come only under entry iv. even on the death of srinivasaga naidu in the year 1965, sadagopan, his brother could not have claimed any right, as parijatham animal inherited the estate of srinivasaga naidu. so, i find that the case of the appellant that the plaintiff/respondent alone is not the heir of parijatham ammal and others are also available to inherit the suit properties is not well founded.15. there remains the issue regarding the adoption. the defendant/appellant who claims right under the estate of parijatham ammal has come forward with the plea that she was adopted by parijatham ammal, as stated in paragraph 6 of the written statement. according to the appellant/defendant, all the rituals and rites were performed by the natural parents, as per hindu customs, and she was given in adoption, when she was 40 days old child, to late parijatham ammal, and from that date onwards she had been treated as the adopted child of late parijatham ammal. after the defendant became major, she herself filed additional written statement in which the defendant has submitted that she is the adopted daughter of parijatham ammal and from that date, the defendant had been maintained by her adoptive mother. in view of the earlier proceedings in o.s. no. 932 of 1987 in which the father of the defendant filed a written statement stating about the adoption deed., which was marked in that case as ex. b-9, the plaintiff came forward with the plea in paragraph 7 of the plaint that parijatham animal never adopted the defendant and never treated her as her adopted daughter. the plaintiff has also denied the execution of the deed of adoption as claimed by the father of the defendant in o.s. no. 932 of 1987. the defendant, to prove the factum of adoption examined d.ws. 1, 2, 3 and 5. the plaintiff as p.w. 1 has denied the said factum of adoption. the trial court while considering the issue no. 1 held that the defendant has not proved the factum of adoption and the deed of adoption is not valid and enforceable.16. on a consideration of the above pleadings, evidence and the findings of the trial court, now i have to consider whether the defendant/appellant who seeks to displace the natural succession has discharged the burden that lies upon her by proving the factum of adoption and its validity. it is settled principle that the evidence in proof of adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its genuineness.17. the learned counsel for the appellant/defendant has submitted that the defendant has discharged her burden by examining d.ws. 1, 2, 3 and 5 and marking exs. b-17 and b-19.18. per contra, the learned senior counsel for the respondent has submitted that the appellant/defendant has not proved the factum of adoption by discharging her burden. according to the learned senior counsel, even the date and place of adoption had not been mentioned in the written statement. further, no invitation was printed, no invitees were examined, and no accounts were produced regarding the expenses of the function. according to him, exs. b-17 and b-19 also would not help the defendant/appellant to sustain her case, and the subsequent conduct of the parties also would show that the appellant/defendant was not at all treated as adopted daughter of parijatham ammal.19. section 5 and 6 of the hindu adoptions and maintenance act, 1956 constitute the complete code on adoption. they clearly spell out, the do's and don'ts of a valid adoption. the adoption should be in accordance with the provision of the said act. according to section 6 of the act.no adoption shall be valid unless-(i) the person adopting has the capacity, and also the right, to take in adoption;(ii) the person giving in adoption, has the capacity to do so;(iii) the person adopted is capable of being taken in adoption; and(iv) the adoption is made in compliance with the other conditions mentioned in this chapter.the capacity of the male to take in adoption has been mentioned in section 7 of the act. section 8 speaks about the capacity of female hindu to take in adoption, as follows:any female hindu-(a) who is of sound mind,(b) who is not a minor, and(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a hindu or has been declared by a court of competent jurisdiction to be of ul-sound mind,-has the capacity to take a son or daughter in adoption.section 9 contemplates the persons capable of giving in adoption. section 10 speaks about the persons who may be adopted. the other conditions for valid adoption has been mentioned in section 11 of the act. it cannot be disputed that the pleadings and evidence in the present case would clearly establish that all the requirements mentioned under the above provisions have been satisfied by the defendant.20. the main question which remains to be considered and decided is whether the adoption pleaded by the appellant/defendant has proved to be taken place at all, as the respondent/plaintiff has denied the same. as stated earlier, the appellant/defendant must discharge the burden that lies upon her heavily by proving the factum of adoption and its validity. as submitted by the learned counsel for the appellant, the appellant/defendant examined d.ws. 1, 2, 3 and 5 and marked exs. b-17 and b-19 to prove the factum of adoption. d.w. 1, the natural mother of the defendant, deposed that on the 40th day of her second daughter's birth, she was given in adoption in the house of parijatham ammal at palayamkottai on 16.6.1975, that there were 15 persons present and that from the date of adoption, she had been brought up by parijatham ammal. she also speaks about exs. b-17 and b-19. according to her, the date of birth of the defendant is 8.5.1975. she admits that no details of adoption regarding time, date and place were mentioned in the written statement. but she was given the details of the persons who were present at the time of adoption and the details about the function. d.w. 2 speaks about the adoption which took place on 16.6.1975. according to him, he specified the date for adoption. he explained why he has chosen, monday, the 16th june, 1975. he also speaks about the accounts maintained for the expenses incurred for the adoption ceremony. d.w. 3 speaks about ex. b-17. he says that he saw when parijatham ammal singed the document. he also says that he knows about the adoption of the child. on the basis of the oral evidence as mentioned above and exs. b-17 and b-19, the learned counsel for the appellant has submitted that the defendant proved the requirement mentioned in section 11(vi) of the act which reads as follows:the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or a child shows parentage is not known, from the place or family where it has been brought up) to the family of its adoption:provided that the performance of datta homan, shall not be essential to the validity of an adoption while dealing with the scope of the said section, the apex court in lakshman singh v. rup kunwar a.i.r. 1961 s.c. 1878 held that:the essential condition in clause (vi) of this section is, namely, that the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption. the performance of the ceremony of giving and taking is a mandatory requirement for a valid adoption.in debt prasad v. tribeni devi : [1971]1scr101 , the apex court has observed as follows:all that is required is that the natural parent or guardian of the child as the case may be shall hand over the child and the adoptive parents receive the same.in the decision reported in kartar singh v. surajan singh : [1975]1scr742 , the supreme court has held as follows:the words in section 11, clause (vi), 'with intent to transfer the child from the family of its birth to the family of its adoption' are merely indicative of the result of the actual giving and taking by the parents of guardians concerned referred to in the earlier part of the clause. where an adoption ceremony is gone through and the giving and taking place, there cannot be any other intention.the learned counsel, based on this, has submitted that the defendant has discharged her burden proving the factum of adoption.21. the learned senior counsel appearing for the respondent, per contra has submitted that the defendant, on whom the burden lies to prove her case, has to discharge her burden by proving the factum of adoption free from all suspicion of fraud. in support of this submission, the learned counsel relied on the decision reported in sootsroogun v. sabitra a.i.r. 1916 p.c. 81 wherein it is observed as follows:that in no case should the rights of wives and daughters be transferred to strangers or more remote relatives, unless the proof of adoption, by which the transfer is effected, be proved free from ail suspicion of fraud and so consistent and probable as to leave no occasion for doubt of its truth.in the decision reported in addagada raghavammal v. addagada chenchamma : [1964]2scr933 , the apex court has held as follows:it is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity.22. according to the learned counsel, parijatham ammal hailed from an affluent family and one would expect in a function such as adoption would be celebrated in a grand manner and in this case no invitation was printed. even according to d.w. 1, only 15 persons were present and even those persons were not examined to prove the said function of adoption. when the appellant/defendant attained puberty and invitation was printed and marked as ex. a-1, invitation for the alleged adoption of the defendant was not printed, and even in the invitation ex. a-1, the name of parijatham ammal is mentioned only as aunt of the defendant and not the mother of the defendant. the appellant/defendant has not produced any school documents pertaining to her to prove that parijatham ammal had treated her as adopted daughter. even ex. b-2 will show the name of the father and mother as murugan and kumuthi, namely, the natural father and mother, and not the name of parijatham ammal. the learned counsel submitted that no proof to show that the expenditure was incurred in connection with the adoption.23. in support of his submission, the learned counsel placed reliance on the decisions reported in kishori lal v. mst. chaltibal : air1959sc504 , in which it is held as follows:as an adoption results in changing the course course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth. failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. the importance of accounts was emphasised by the privy council in sootrugun v. sabitra; in diwakar rao v. chandanlal rao; in kishohlal v. chunilal; in lal kumvar v. charanji lal and in padamlal v. fakir a debya.24. in this case, d.w. 3 speaks about the maintenance of the account and merely because the invitation was not printed, it cannot be concluded that there was no adoption at all; if otherwise the defendant proves her case. in this case, the adoptive mother herself had executed two documents mentioned about the factum of adoption. ex. b-17, a registered document confirms about the factum of adoption held on the 40th day after the defendant's birth, viz., 8.5.1975. the learned counsel for the respondent tried to brush aside the document on the ground that the requirement under section 16 of the act was not satisfied. this argument of the learned counsel to ignore ex. b-17 cannot be accepted. the defendant is not relying on this document as a document under which adoption was given. only to prove the factum of adoption the defendant is relying upon the same as the adoptive mother herself has executed the same confirming the factum of adoption. i was not persuaded why this document should not be relied on for collateral purpose. similarly the defendant is relying on ex. b-19, a will executed by parijatham ammal. as the will is not proved as held earlier, it cannot be relied on only for the purpose of claiming any testamentary inheritance under the will. but there cannot be any bundle to rely on the said document to prove the factum of adoption. according to the learned counsel for the respondent, ex. b-19 will not extend any support to the case of the defendant as in the said document the word had been interpolated and no explanation was given by the defendant for the same. even in the plaint, the plaintiff has stated that in view of the earlier proceedings he knew about the will. but he has not raised any doubt about the said interpolation. even as p.w. 1 has not stated about the same. no suggestion was also put to that effect to the witness examined on behalf of the defendant. since the plaintiff has not raised any doubt about the document ex. b-19, he cannot expect the defendant to explain the same. so, the submission of the learned counsel for the respondent to ignore ex. b-19 cannot be sustained. apart from the oral evidence of d.ws. 1, 2 and 3 the documents exs. b-17 and b-19 would support the case of the defendant to prove the factum of adoption. the trial court has not properly appreciated the said documents. the trial court refused to consider the document ex. b-17 only on the ground that it did not satisfy the requirement of section 16 of the act. with respect to ex. b-19, the trial court erroneously accepted the case of the plaintiff that there is an intermeddle and so it cannot be relied on. but the trial court failed to appreciate that there is no pleading or evidence of the side of the plaintiff that the said document cannot be relied on in view of interpolation.25. the learned counsel for the respondent has submitted that there are discrepancies in the oral evidence of d.w. 1 and d.w. 2 regarding adoption. according to him, d.w. 2 has no knowledge about the rituals regarding the adoption. since adoption is questioned after 15 years, too much importance ought not to be attached to discrepancies in the oral evidence which would be inevitable. if witnesses speak about events and incidents which took place decades back. in this case, there are documents, came into existence and reference is made to the adoption in question. in similar circumstances, the division bench of this court in decision reported in nagayasami v. kochadai naidu : air1969mad329 , held as follows:even though there are no special rules of evidence to establish an adoption, the burden of proving an adoption is a very grave and serious one, as an adoption displaces the natural succession. it is true that if the adoption is questioned after the lapse of a long period, allowance will have to be made for the absence and disappearance of direct evidence of witnesses who had attended and participated in the function and to much importance ought not to be attached to discrepancies in the evidence which would be inevitable if witnesses speak about events and incidents which took place, decades back. a contemporaneous deed of adoption coming into existence at the same time as the adoption took place, would no doubt, be strong, cogent evidence.26. the learned counsel for the respondent further submitted that the date and place of adoption and the name of the persons attended the function were not mentioned in the written statement. in support of this submission, he relied on the decision reported in madan lal v. mst gopi : [1981]1scr594 to say that the defendant had not discharged her burden, wherein it is held as follows:but, significantly, the deed does not mention the year, the date or the place of adoption. it does not either mention, as adoption deeds generally mention, the names of persons who were present at the time of adoption. in fact, on the record of this case there is no evidence whatsoever to show when and where the adoption took place and even whether the necessary ceremonies were performed.27. in this case, though the date and place had not been mentioned in the written statement, other evidence like d.ws. 1 and 2, exs. b-17 and b-19 are available to substantiate the case of the defendant beyond suspicion. they speak to the adoption ceremony and the giving and taking of the defendant. d.w. 1 speaks about the persons who were present during the time of ceremony. in the absence of any other contra evidence exs.b-17 and b-19 would not only prove the factum of adoption but also the existence of feeling of love and affection for the defendant by the adoptive mother. so, the submission of the learned counsel for the respondent cannot be accepted.28. as submitted by the learned counsel for the appellant for a valid adoption, the physical act of giving and taking is an essential requisite. this submission is on the basis of the decision reported in lakshman singh v. rup kunwar : [1962]1scr477 , in which the apex court has held as follows:the law may be briefly stated thus: under the hindu law, whether among the regenerate caste or among sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. the object of the corporeal giving and receiving in adoption is obviously to secure due publicity. to achieve this object it is essential to have a formal ceremony. no particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. the nature of the ceremony may vary depending upon the circumstances of each case. but a ceremony there shall be, and giving and taking shall be part of it. the exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their violation to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.this decision, has been followed in madhusudan das v. narayani bai 1983 s.c. 114 in which it is held as follows:for a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions whatever the case. and this requisite is satisfied in its essence only be the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed dated of adoption.in the present case, d.ws. 1 and 2 had spoken to about the same and established the very essential condition. their oral evidence is supported by exs. b-17 and b-19.29. the learned counsel for the respondent further submitted that the subsequent conduct of parijatham ammal the defendant and her natural parents will prove that at no point of time, parijatham ammal had treated the defendant as her adopted daughter and exs. a-1, b-2, b-5 and b-19 themselves would clearly prove the same. as found earlier the defendant has proved the factum of adoption through oral and documentary evidence. the subsequent conduct will not nullify the valid adoption. these documents cannot be relied on to inter that there was no valid adoption. it is the specific case of the defendant that from the date of adoption, the defendant had been maintained by her adopted mother. this has been proved through d.ws. 1 and 2 and d.ws. 3 and 5. exs. b-17, b-19 executed by adoptive mother herself which would support the case of the defendant.30. in view of the above, i consider that the conclusions and findings arrived at and recorded by the trial court regarding the factum of adoption are not convincing, acceptable and are contrary to the evidence available on record and settled propositions of law. consequently, i am unable to agree with the learned counsel for the respondent that no case has been made out in this appeal for interference at the instance of the defendant.31. for all the reasons stated above, i allow this appeal by setting aside the judgment and decree of the learned trial judge. but, in the circumstances of the case, there will be no order as to costs.
Judgment:

K. Govindarajan, J.

1. The defendant who suffered the decree before the lower court, in O.S. No. 101 of 1990, on the file of the Principal Subordinate Judge, Tirunelveli, has filed the above appeal. The plaintiff filed the suit for declaration that the plaintiff is entitled to the suit properties and for directing the defendant to handover possession of the suit properties, on or before 5.12.1994, for mesne profits, and for costs. According to the plaintiff the suit properties originally belonged to one Parijatham Ammal, the widow of the plaintiff's brother Srinivasaga Naidu. He died in the year 1965. After his death the major portion of the suit properties had been inherited by the said Parijatham Ammal. Other properties were acquired by the said Parijatham Ammal out of the income from her husband's estate. The said Parijatham Ammal died intestate on 18.8.1987 leaving no issues. The plaintiff is her only heir under Section 15 of the Hindu Succession Act as the plaintiff is her husband's brother. It is the specific case of the plaintiff that there is no nearest heir on the death of Parijatham Ammal and so the plaintiff is entitled to. the suit properties. The defendant is the Parijatham Ammal's brother's daughter. The defendant's father, was assisting Parijatham Ammal for sometime in managing the business. In recognition of the same, Parijatham Ammal transferred one bus along with route permit to the father of the defendant. Later some disputes arose between them and while they were pending, Parijatham Ammal died. According to the plaintiff, the plaintiff, after the death of Parijatham Ammal, took possession of some items of the plaint schedule properties. When the defendant's father and his sisters attempted to forcibly dispossess the plaintiff, the plaintiff filed a suit O.S. No. 932 of 1987 on the file of the District Munsif Court, Ambasamurdram for permanent injunction restraining them from interfering withjiis possession and enjoyment. The plaintiff applied and obtained interim injunction in I.ANo. 1888 of 1987 on 21.8.1987. The defendant was also impleaded as a party to the said suit. The said suit was subsequently transferred to the Additional District Munsif Court, Tirunelveli and re-numbered as O.S. No. 1156 of 1989. Subsequently, the plaintiff withdrew the said suit with permission to file a fresh suit for title, and accordingly permission and granted. According to the plaintiff, the defendant is not the adopted daughter of said Parijatham Ammal and such adoption did not take place and Parijatham Ammal never executed any document relating to the said adoption. Even the will relied on by the defendant's father is also a fraudulent one and Parijatham Ammal never executed such a will. Since the plaintiff was forcibly evicted by the defendant's father, the defendant's possession is illegal and she cannot claim any right in the properties. Hence the plaintiff had filed the above suit.

2. The defendant who was a minor at the time of filing the suit, filed a written statement through her mother and guardian. After she attained majority, she filed additional written statement. According to the defendant, she was born on 8.5.1975. On the 40th day, she was given in adoption by the natural parents to the said Parijatham. The said adoption was in accordance with Hindu Law after following all rituals and rites. To confirm the said adoption, the said Parijatham Ammal executed a registered deed on 24.2.1982. According to the defendant, the value with respect to the suit properties are not properly mentioned in the plaint. The plaintiff has filed the suit without even impleading the other parties who were impleaded in O.S. No. 932 of 1987, though that suit was withdrawn with liberty to file a fresh suit. After the demise of the said Srinivasaga Naidu, dispute arose between the wife and his sisters on the one side, and the plaintiff, his minor sons, his brother and brother's sons on the other side. So the late Parijatham Ammal and her two sisters, namely, Rathi and Santha filed O.S. No. 82 of 1966 on the file of Sub Court, Tirunelveli, which ended in compromise and a compromise decreed was passed on 7.3.1967. As per the terms of the compromise, the properties relating to Parijatham Ammal are given to her absolutely with full power of alienation and encumbrance and either the present plaintiff or the other defendants in O.S. No. 82 of 1966 are not entitled to the same. The defendant denied the fact that Parijatham Ammal died on 16.8.1987. On the death of Parijatham Ammal, the suit properties never devolved upon the plaintiff. But the suit properties devolved upon the defendant, as her adopted daughter. The late Parijatham Ammal executed a will bequeathing the properties in favour of the defendant. The defendant was adopted by late Parijatham Ammal by performing all rituals and rites. To avoid any complication and dispute, late Parijatham Ammal executed a deed of adoption confirming the factum of adoption. At no point of time, the plaintiff is in possession of any one of the properties belonged to the estate of Parijatham Ammal and the defendant has been in possession with absolute right from the date of demise of her adoptive mother. The possession of the defendant is valid and legal and the defendant has every right to be in possession of the properties belonging to her late adoptive mother. The defendant is not bound to render accounts. According to the defendant, the estimation of the plaintiff of the mesne profits is not correct. According to the defendant the plaintiff cannot be a heir to the said Parijatham Ammal. In view of the compromise decree passed in C.S. No. 82 of 1996, the plaintiff is not entitled to inherit the suit properties. On the basis of the above pleadings, the defendant prayed for dismissal of the suit with cost.

3. The trial court after considering the pleadings framed six issues. On the side of the plaintiff, the plaintiff and one Renga Krishnan were examined as P.Ws. 1 and 2 and marked Exs. A-1 to A-7. On the side of the defendant, five witnesses were examined and marked Exs. B-1 to B-25.

4. The trial court, while considering issue No. 2, found it in favour of the plaintiff. Regarding adoption, under issue No. 1, the trial court held that the defendant has not proved the factum of adoption and the validity of the document. Regarding the will, under issue No. 3, the trial court held that the defendant has not proved the same in accordance with law. On that basis the trial court found the other issues in favour of the plaintiff and decreed the suit only with respect to item Nos. 1 to 6 of the suit properties and dismissed the suit with respect to item Nos. 7 and 8 of the suit properties. Aggrieved against the same, the defendant in the suit has filed the present appeal. Against the dismissal of the suit, with respect to item Nos. 7 and 8 of the suit properties, the plaintiff has not challenged the decree.

5. There is no dispute that the suit properties, item Nos. 1 to 6 belonged to deceased Parijatham Ammal. The only dispute is whether the plaintiff/respondent is entitled to inherit the suit properties as a heir of the said Parijatham Amrnal under Section 15(1)(b) of the Hindu Succession Act or the appellant/defendant as claimed by her.

6. Mr. V. Ramajagadeesan, learned Counsel for the appellant, to exclude the plaintiff from claiming any right as heir of the said Parijatham Ammal, has placed four hurdles, viz., (1) under Ex. B-16, which is the compromise decree in O.S. No. 82 of 1966, dated 7.3.1967, the plaintiff had given up all his rights in the suit properties and so now he cannot claim any right; (2) the defendant had been adopted by the said Parijatham Ammal; (3) under Ex. A-19 will the said Parijatham Ammal, bequeathed her properties in favour of the defendant; and (4) in any event, there are other heirs of the deceased Parijatham Ammal available and so the plaintiff alone cannot claim right.

7. Though it is settled law that the plaintiff shall succeed or fail on their own pleading and evidence, in the present case, it cannot be disputed in the normal course, the plaintiff is entitled to succeed the estate left by Parijatham Ammal under Section 15(1)(b) of the Hindu Succession Act, leave alone the fact whether the plaintiff alone is entitled or there are other persons also available to inherit along with him. I will discuss about the same latter. So, the appellant has to establish her rights in the suit properties to dispose the natural succession.

8. Now, I have to find out whether the appellant has established the grounds raised to deny the plaintiff from claiming the suit properties.

9. The first submission of the learned Counsel for the appellant is that in view of Ex. B-16 compromise decree dated 7.3.1967 made in O.S. No. 82 of 1966 on the file of the Sub Court, Tirunelveli, the plaintiff, cannot claim any right in the suit properties. That suit was filed by Parijatham Ammal and her sisters against the brothers, sisters of the Parijatham's husband and the plaintiff. The plaintiff is the fifth defendant in that suit and signatory to the compromise memo. The learned Counsel has relied on Clauses 15 and 16 of the compromise decree which reads as follows:

The first plaintiff (Parijatham Ammal), the wife of the deceased Srinivasaga Naidu, takes the estate with the liability as his wife and she is free to deal with the estate as she likes. If she should leave behind any asset unprovided, whatever left by her when she dies shall be taken by plaintiffs 2 and 3 and their brother Murugan. Others have no claim over the same. The parties plaintiffs 1 to 3 and defendants 1 to 7 have agreed to these terms and a decree may be passed on these terms. The plaintiffs can take an ex pane decree against the 8th defendant declaring the absolute ownership and title of the first plaintiff to the suit properties and asset left by Srinivasaga Naidu. Parties have had the whole translated and have accepted all the terms and pray for a decree on these terms.

No doubt these clauses in the compromise decree, Ex. B-16 prohibit the plaintiff in claiming rights in the estate of Parijatham Ammal.

10. The question to be decided is whether the defendant/appellant can rely on the said Ex. B-16 to non suit the plaintiff. The learned Counsel for the appellant has submitted that the respondent/plaintiff has not even mentioned about this decree under which the plaintiff's rights had been restricted and only in the written statement the appellant has mentioned about Ex. B-16. According to the learned Counsel, in view of Ex. B-16, the plaintiff and other heirs of Parijatham Ammal cannot have any right in the properties, It is his further submission that in the absence of any pleadings to that effect that the compromise under Ex. B-16 was obtained under coercion or compulsion will bind on the parties to the memo, and the trial court without any basis has come to the conclusion that the said decree was not acted upon and so the plaintiff cannot be deprived of his rights.

11. Per contra to this submission, Mr. T.R. Mani, the learned Senior Counsel for the plaintiff/respondent has submitted that the suit properties in this case are not the subject matter in suit O.S. No. 82 of 1996 and so if there was any compromise with respect to those properties, it cannot be enforced unless that decree is registered. According to the learned Senior Counsel, the plaintiff/respondent is not estopped from claiming rights in the suit properties, unless it is specifically raised on the written statement. Learned Senior Counsel has relied on the deposition of D.W. 5 (appellant) who had deposed that the suit is filed not on the ground that no other person is entitled to the suit property. Learned Senior Counsel has further submitted that pursuant to the compromise decree in Ex. B-16, the respondent/plaintiff had given up some rights which he is entitled under law and so such action of giving up of the rights amount to transfer in the immovable property and unless it is registered, it cannot be relied on.

12. It is the admitted fact that the properties covered in this suit are not the subject matter of the suit in O.S. No. 82 of 1966. In Clause (15) of the terms of compromise relied on by the learned Counsel for the plaintiff, there is a restriction with respect to the claim made by the defendants therein. As the suit properties covered in the present suit are not the subject matter in that suit. So, as rightly submitted by the learned senior counsel for the respondent/plaintiff the appellant/defendant cannot rely on the decree i.e., Ex. B-16 to non-suit the plaintiff unless it is registered. In similar circumstances, the Apex Court has held in the decision reported in Bhoop Singh v. Ram Singh Major : AIR1996SC196 as follows:

We have to view the reach of Clause (vi) which is an exception to Sub-section (1), bearing all the aforesaid in mind. We would think that the exception engraftal is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs. 100 or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.

It would, therefore, be the duty of the court to examined in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs. 100 or upwards in favour of other party for the first time, either by compromise or pretended consent. If later be the position, the document is compulsorily registerable.

So, the compromise memo, Ex. B-16 cannot be allowed to be relied on by the appellant against the plaintiff/respondent, In this case admittedly, the decree in Ex. B-16 has not been registered. Even if it is construed as family arrangement, Ex. B-16 would require registration under Section 17 of the Registration Act. The Supreme Court in the decision reported in Tek Bahadur Shujil v. Debi Singh Shujil (1966) 2 S.C.J. 290 follows:

Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.

So, unless it is registered, the rights mentioned in the compromise deed, would not pass on to the beneficiaries, as mentioned in Clause 15 of the compromise - decree, Ex. B-16. Moreover, under compromise decree, no right is given to the appellant. The rights were given only to the sisters and brother of the deceased Parijatham Ammal. So, I find that the rights of the plaintiff, if he is otherwise entitled, cannot be denied on the basis of Ex. B-16.

13. Next, the learned Counsel for the appellant has relied on the will executed, which is marked as Ex. B-19, dated 20.2.1982. According to the learned Counsel, one attesting witness was examined to prove the will. The other attesting witnesses and scribe died and so even according to the will, the appellant is entitled to the property and the plaintiff/respondent cannot have any right over the suit properties. The learned Senior Counsel for the respondent has submitted that even the execution of the will has been denied in the written statement, as it is a fraudulent one. The learned senior counsel brought to my notice Ex. A-17 under which the earlier will Ex. B-19 had been cancelled. This fact is spoken to by P.W. 1. Ex. A-17 has been proved by examining the attestor. In view of the cancellation of the will Ex. B-19, I am not going to discuss whether the appellant has proved Ex. B-19 in accordance with law. Even assuming that the will is valid, subsequently, it was cancelled, under Ex. A-17. So, the appellant cannot claim any right under Ex. B-19.

14. The next point raised by the learned Counsel for the appellant is that the palintiff alone is not entitled to claim right in the suit properties. There are other sharers and on that basis the suit could be dismissed. As rightly submitted by the learned Senior Counsel for the respondent, there is no pleading to the effect that apart from the plaintiff other heirs are also available. This point had not been raised and so there was no issue before the lower court. Consequently, there was no occasion for the trial court to decide the same. The plaintiff being the heir of the husband of Parijatham, according to Sub-section 2(b) of Section 15 of the Hindu Succession Act, the plaintiff alone is entitled to the suit-properties. Others would be excluded under Section 9 of the Act. There is no dispute that the other brother of Srinivasaga Naidu, viz., Sadagopan died in 1969 and the plaintiff who comes under the entry II (3) in Class II, will exclude the others who come only under entry IV. Even on the death of Srinivasaga Naidu in the year 1965, Sadagopan, his brother could not have claimed any right, as Parijatham Animal inherited the estate of Srinivasaga Naidu. So, I find that the case of the appellant that the plaintiff/respondent alone is not the heir of Parijatham Ammal and others are also available to inherit the suit properties is not well founded.

15. There remains the issue regarding the adoption. The defendant/appellant who claims right under the estate of Parijatham Ammal has come forward with the plea that she was adopted by Parijatham Ammal, as stated in paragraph 6 of the written statement. According to the appellant/defendant, all the rituals and rites were performed by the natural parents, as per Hindu Customs, and she was given in adoption, when she was 40 days old child, to late Parijatham Ammal, and from that date onwards she had been treated as the adopted child of late Parijatham Ammal. After the defendant became major, she herself filed additional written statement in which the defendant has submitted that she is the adopted daughter of Parijatham Ammal and from that date, the defendant had been maintained by her adoptive mother. In view of the earlier proceedings in O.S. No. 932 of 1987 in which the father of the defendant filed a written statement stating about the adoption deed., which was marked in that case as Ex. B-9, the plaintiff came forward with the plea in paragraph 7 of the plaint that Parijatham Animal never adopted the defendant and never treated her as her adopted daughter. The plaintiff has also denied the execution of the deed of adoption as claimed by the father of the defendant in O.S. No. 932 of 1987. The defendant, to prove the factum of adoption examined D.Ws. 1, 2, 3 and 5. The plaintiff as P.W. 1 has denied the said factum of adoption. The trial court while considering the issue No. 1 held that the defendant has not proved the factum of adoption and the deed of adoption is not valid and enforceable.

16. On a consideration of the above pleadings, evidence and the findings of the trial court, now I have to consider whether the defendant/appellant who seeks to displace the natural succession has discharged the burden that lies upon her by proving the factum of adoption and its validity. It is settled principle that the evidence in proof of adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its genuineness.

17. The learned Counsel for the appellant/defendant has submitted that the defendant has discharged her burden by examining D.Ws. 1, 2, 3 and 5 and marking Exs. B-17 and B-19.

18. Per contra, the learned Senior Counsel for the respondent has submitted that the appellant/defendant has not proved the factum of adoption by discharging her burden. According to the learned Senior Counsel, even the date and place of adoption had not been mentioned in the written statement. Further, no invitation was printed, no invitees were examined, and no accounts were produced regarding the expenses of the function. According to him, Exs. B-17 and B-19 also would not help the defendant/appellant to sustain her case, and the subsequent conduct of the parties also would show that the appellant/defendant was not at all treated as adopted daughter of Parijatham Ammal.

19. Section 5 and 6 of the Hindu Adoptions and Maintenance Act, 1956 constitute the complete code on adoption. They clearly spell out, the do's and don'ts of a valid adoption. The adoption should be in accordance with the provision of the said act. According to Section 6 of the Act.

No adoption shall be valid unless-

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption, has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this chapter.

The capacity of the male to take in adoption has been mentioned in Section 7 of the Act. Section 8 speaks about the capacity of female Hindu to take in adoption, as follows:

Any female Hindu-

(a) who is of sound mind,

(b) who is not a minor, and

(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of UL-sound mind,-

has the capacity to take a son or daughter in adoption.

Section 9 contemplates the persons capable of giving in adoption. Section 10 speaks about the persons who may be adopted. The other conditions for valid adoption has been mentioned in Section 11 of the Act. It cannot be disputed that the pleadings and evidence in the present case would clearly establish that all the requirements mentioned under the above provisions have been satisfied by the defendant.

20. The main question which remains to be considered and decided is whether the adoption pleaded by the appellant/defendant has proved to be taken place at all, as the respondent/plaintiff has denied the same. As stated earlier, the appellant/defendant must discharge the burden that lies upon her heavily by proving the factum of adoption and its validity. As submitted by the learned Counsel for the appellant, the appellant/defendant examined D.Ws. 1, 2, 3 and 5 and marked Exs. B-17 and B-19 to prove the factum of adoption. D.W. 1, the natural mother of the defendant, deposed that on the 40th day of her second daughter's birth, she was given in adoption in the house of Parijatham Ammal at Palayamkottai on 16.6.1975, that there were 15 persons present and that from the date of adoption, she had been brought up by Parijatham Ammal. She also speaks about Exs. B-17 and B-19. According to her, the date of birth of the defendant is 8.5.1975. She admits that no details of adoption regarding time, date and place were mentioned in the written statement. But she was given the details of the persons who were present at the time of adoption and the details about the function. D.W. 2 speaks about the adoption which took place on 16.6.1975. According to him, he specified the date for adoption. He explained why he has chosen, Monday, the 16th June, 1975. He also speaks about the accounts maintained for the expenses incurred for the adoption ceremony. D.W. 3 speaks about Ex. B-17. He says that he saw when Parijatham Ammal singed the document. He also says that he knows about the adoption of the child. On the basis of the oral evidence as mentioned above and Exs. B-17 and B-19, the learned Counsel for the appellant has submitted that the defendant proved the requirement mentioned in Section 11(vi) of the Act which reads as follows:

the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or a child shows parentage is not known, from the place or family where it has been brought up) to the family of its adoption:

Provided that the performance of datta homan, shall not be essential to the validity of an adoption while dealing with the scope of the said Section, the Apex Court in Lakshman Singh v. Rup Kunwar A.I.R. 1961 S.C. 1878 held that:

the essential condition in Clause (vi) of this section is, namely, that the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption. The performance of the ceremony of giving and taking is a mandatory requirement for a valid adoption.

In Debt Prasad v. Tribeni Devi : [1971]1SCR101 , the Apex Court has observed as follows:

All that is required is that the natural parent or guardian of the child as the case may be shall hand over the child and the adoptive parents receive the same.In the decision reported in Kartar Singh v. Surajan Singh : [1975]1SCR742 , the Supreme Court has held as follows:

The words in Section 11, Clause (vi), 'with intent to transfer the child from the family of its birth to the family of its adoption' are merely indicative of the result of the actual giving and taking by the parents of guardians concerned referred to in the earlier part of the clause. Where an adoption ceremony is gone through and the giving and taking place, there cannot be any other intention.The learned Counsel, based on this, has submitted that the defendant has discharged her burden proving the factum of adoption.

21. The learned Senior Counsel appearing for the respondent, per contra has submitted that the defendant, on whom the burden lies to prove her case, has to discharge her burden by proving the factum of adoption free from all suspicion of fraud. In support of this submission, the learned Counsel relied on the decision reported in Sootsroogun v. Sabitra A.I.R. 1916 P.C. 81 wherein it is observed as follows:

That in no case should the rights of wives and daughters be transferred to strangers or more remote relatives, unless the proof of adoption, by which the transfer is effected, be proved free from ail suspicion of fraud and so consistent and probable as to leave no occasion for doubt of its truth.

In the decision reported in Addagada Raghavammal v. Addagada Chenchamma : [1964]2SCR933 , the Apex Court has held as follows:

It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity.

22. According to the learned Counsel, Parijatham Ammal hailed from an affluent family and one would expect in a function such as adoption would be celebrated in a grand manner and in this case no invitation was printed. Even according to D.W. 1, only 15 persons were present and even those persons were not examined to prove the said function of adoption. When the appellant/defendant attained puberty and invitation was printed and marked as Ex. A-1, invitation for the alleged adoption of the defendant was not printed, and even in the invitation Ex. A-1, the name of Parijatham Ammal is mentioned only as aunt of the defendant and not the mother of the defendant. The appellant/defendant has not produced any school documents pertaining to her to prove that Parijatham Ammal had treated her as adopted daughter. Even Ex. B-2 will show the name of the father and mother as Murugan and Kumuthi, namely, the natural father and mother, and not the name of Parijatham Ammal. The learned Counsel submitted that no proof to show that the expenditure was incurred in connection with the adoption.

23. In support of his submission, the learned Counsel placed reliance on the decisions reported in Kishori Lal v. Mst. Chaltibal : AIR1959SC504 , in which it is held as follows:

As an adoption results in changing the course course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasised by the Privy Council in Sootrugun v. Sabitra; In Diwakar Rao v. Chandanlal Rao; In Kishohlal v. Chunilal; In Lal Kumvar v. Charanji Lal and in Padamlal v. Fakir a Debya.

24. In this case, D.W. 3 speaks about the maintenance of the account and merely because the invitation was not printed, it cannot be concluded that there was no adoption at all; if otherwise the defendant proves her case. In this case, the adoptive mother herself had executed two documents mentioned about the factum of adoption. Ex. B-17, a registered document confirms about the factum of adoption held on the 40th day after the defendant's birth, viz., 8.5.1975. The learned Counsel for the respondent tried to brush aside the document on the ground that the requirement under Section 16 of the Act was not satisfied. This argument of the learned Counsel to ignore Ex. B-17 cannot be accepted. The defendant is not relying on this document as a document under which adoption was given. Only to prove the factum of adoption the defendant is relying upon the same as the adoptive mother herself has executed the same confirming the factum of adoption. I was not persuaded why this document should not be relied on for collateral purpose. Similarly the defendant is relying on Ex. B-19, a will executed by Parijatham Ammal. As the will is not proved as held earlier, it cannot be relied on only for the purpose of claiming any testamentary inheritance under the will. But there cannot be any bundle to rely on the said document to prove the factum of adoption. According to the learned Counsel for the respondent, Ex. B-19 will not extend any support to the case of the defendant as in the said document the word had been interpolated and no explanation was given by the defendant for the same. Even in the plaint, the plaintiff has stated that in view of the earlier proceedings he knew about the will. But he has not raised any doubt about the said interpolation. Even as P.W. 1 has not stated about the same. No suggestion was also put to that effect to the witness examined on behalf of the defendant. Since the plaintiff has not raised any doubt about the document Ex. B-19, he cannot expect the defendant to explain the same. So, the submission of the learned Counsel for the respondent to ignore Ex. B-19 cannot be sustained. Apart from the oral evidence of D.Ws. 1, 2 and 3 the documents Exs. B-17 and B-19 would support the case of the defendant to prove the factum of adoption. The trial court has not properly appreciated the said documents. The trial court refused to consider the document Ex. B-17 only on the ground that it did not satisfy the requirement of Section 16 of the Act. With respect to Ex. B-19, the trial court erroneously accepted the case of the plaintiff that there is an intermeddle and so it cannot be relied on. But the trial court failed to appreciate that there is no pleading or evidence of the side of the plaintiff that the said document cannot be relied on in view of interpolation.

25. The learned Counsel for the respondent has submitted that there are discrepancies in the oral evidence of D.W. 1 and D.W. 2 regarding adoption. According to him, D.W. 2 has no knowledge about the rituals regarding the adoption. Since adoption is questioned after 15 years, too much importance ought not to be attached to discrepancies in the oral evidence which would be inevitable. If witnesses speak about events and incidents which took place decades back. In this case, there are documents, came into existence and reference is made to the adoption in question. In similar circumstances, the Division Bench of this Court in decision reported in Nagayasami v. Kochadai Naidu : AIR1969Mad329 , held as follows:

Even though there are no special rules of evidence to establish an adoption, the burden of proving an adoption is a very grave and serious one, as an adoption displaces the natural succession. It is true that if the adoption is questioned after the lapse of a long period, allowance will have to be made for the absence and disappearance of direct evidence of witnesses who had attended and participated in the function and to much importance ought not to be attached to discrepancies in the evidence which would be inevitable if witnesses speak about events and incidents which took place, decades back. A contemporaneous deed of adoption coming into existence at the same time as the adoption took place, would no doubt, be strong, cogent evidence.

26. The learned Counsel for the respondent further submitted that the date and place of adoption and the name of the persons attended the function were not mentioned in the written statement. In support of this submission, he relied on the decision reported in Madan Lal v. Mst Gopi : [1981]1SCR594 to say that the defendant had not discharged her burden, wherein it is held as follows:

But, significantly, the deed does not mention the year, the date or the place of adoption. It does not either mention, as adoption deeds generally mention, the names of persons who were present at the time of adoption. In fact, on the record of this case there is no evidence whatsoever to show when and where the adoption took place and even whether the necessary ceremonies were performed.

27. In this case, though the date and place had not been mentioned in the written statement, other evidence like D.Ws. 1 and 2, Exs. B-17 and B-19 are available to substantiate the case of the defendant beyond suspicion. They speak to the adoption ceremony and the giving and taking of the defendant. D.W. 1 speaks about the persons who were present during the time of ceremony. In the absence of any other contra evidence Exs.B-17 and B-19 would not only prove the factum of adoption but also the existence of feeling of love and affection for the defendant by the adoptive mother. So, the submission of the learned Counsel for the respondent cannot be accepted.

28. As submitted by the learned Counsel for the appellant for a valid adoption, the physical act of giving and taking is an essential requisite. This submission is on the basis of the decision reported in Lakshman Singh v. Rup Kunwar : [1962]1SCR477 , in which the Apex Court has held as follows:

The law may be briefly stated thus: under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their violation to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.

This decision, has been followed in Madhusudan Das v. Narayani Bai 1983 S.C. 114 in which it is held as follows:

For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions whatever the case. And this requisite is satisfied in its essence only be the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed dated of adoption.

In the present case, D.Ws. 1 and 2 had spoken to about the same and established the very essential condition. Their oral evidence is supported by Exs. B-17 and B-19.

29. The learned Counsel for the respondent further submitted that the subsequent conduct of Parijatham Ammal the defendant and her natural parents will prove that at no point of time, Parijatham Ammal had treated the defendant as her adopted daughter and Exs. A-1, B-2, B-5 and B-19 themselves would clearly prove the same. As found earlier the defendant has proved the factum of adoption through oral and documentary evidence. The subsequent conduct will not nullify the valid adoption. These documents cannot be relied on to inter that there was no valid adoption. It is the specific case of the defendant that from the date of adoption, the defendant had been maintained by her adopted mother. This has been proved through D.Ws. 1 and 2 and D.Ws. 3 and 5. Exs. B-17, B-19 executed by adoptive mother herself which would support the case of the defendant.

30. In view of the above, I consider that the conclusions and findings arrived at and recorded by the trial court regarding the factum of adoption are not convincing, acceptable and are contrary to the evidence available on record and settled propositions of law. Consequently, I am unable to agree with the learned Counsel for the respondent that no case has been made out in this appeal for interference at the instance of the defendant.

31. For all the reasons stated above, I allow this appeal by setting aside the judgment and decree of the learned trial Judge. But, in the circumstances of the case, there will be no order as to costs.