Kalyani through her maternal uncle and next friend, Varuntharumperumal vs Chelliah Pillai and Others

D. Raju, J.—The above second appeal has been filed by the plaintiff who has since been declared as a major, who was successful before

the trial court, but lost before the first appellate court. The suit Order S. No. 835 of 1988 was filed before the District Munsif Court, Tirunelveli for

a declaration that the plaintiff was the adopted daughter of one Soundarapandian of Vickaramasingapuram entitled to succeed to his estate. The

case of the plaintiff was that she is the 2nd daughter of the 3rd defendant and P.W.4 and she has been given in adoption to one Soundarapandian

co-brother of her natural father the 3rd defendant who was none other than the husband of the elder sister of P.W.4, the natural mother of the

plaintiff. The defendants 1 and 2 are the natural brothers of late Soundarapandian. Soundarapandian who has adopted the plaintiff died and

thereafter his wife Sornam also died. It is in such circumstances the plaintiff''s maternal uncle-cum-next friend has filed the above suit by

representing the minor.

The defendants 1 and 2 disputed the claim of adoption and while further disputing the creditability of the materials produced by the plaintiff in

support of the claim of adoption also Contended that the documents Ex.A-4 dated 31.1.1980 came to be obtained under coercion and that a

complaint of the same was made on 14.1.1980 under Ex.B-5 to the Deputy Inspector General of Police, Tirunelveli by the defendants and that

therefore, there are no materials to substantiate or to legally prove the adoption. It is also contended for the defendants that defendants 1 and 2

who are brothers were close to their deceased brother and there was no need or occasion for adoption of the minor plaintiff and that at any rate

the materials produced by them would go to show that defendants 1 and 2 were being nominated to receive the insurance benefits etc., of the

deceased Soundarapandian and that they had also male children and there was no need for adopting a female child and that too, from co-brother''s

side.

On the above claims and counter-claims, the suit came to be tried and both the sides adduced oral and documentary evidence. After

considering the materials produced, the learned trial Judge by his judgment and decree dated 8.1.1982, decreed the suit as prayed for on the view

that the minor plaintiff was the adopted daughter of Soundarapandian and his wife Sornam and that she is entitled to the declaration as prayed for.

Aggrieved, defendants 1 and 2 filed an appeal which was entertained originally as A.S. No. 48 of 1982 on the file of the District Court, Tirunelveli

and thereafter stood transferred to the learned Additional Subordinate Judge, Tirunelveli and entertained as A.S. No. 30 of 1582. The learned first

Appellate Judge has chosen to re-appreciate the evidence produced in the form of oral and documentary evidence and came to the conclusion that

there is no legally acceptable proof on the side of the plaintiff to substantiate the claim of adoption by Soundarapandian of the plaintiff and that the

materials produced by the plaintiff were not sufficient in law to constitute such proof. Consequently, the appeal came to be allowed and the suit

was dismissed by judgment and decree dated 28.6.1982.

Aggrieved, the above second appeal came to be filed. Mr. S. Narayanan, learned Counsel for the appellant contended that the first appellate

court has committed grave error in disturbing the well-considered finding on the question relating to the adoption and that the observation of the

first appellate Judge that the document Ex.A-4 was concocted document was never pleaded by the defendant and that the learned first appellate

Judge committed grave error of law in interfering with the judgment of the learned trial Judge. At the time of the admission of the appeal, it was

considered that the substantial question of law centered round Ex.A-4 and the right of the defendants 1 and 2 to dispute the adoption in the teeth

of the recital contained in Ex.A-4 to which they are parties. Learned Counsel for the appellant while pursuing the substantial question of law

formulated, also contended that the plaintiff is entitled to take advantage of the admission made in Ex.A-4 regarding the factum of adoption and the

learned first appellate Judge was not right in rejecting the claim of the plaintiff for declaration.

Mr. K. Srinivasan, learned Counsel for the defendants 1 and 2 the respondents in this appeal, while supporting the reasons assigned by the

learned first appellate Judge contended that the first appellate Judge as a final court of appeal on finding of fact was entitled to re-appreciate the

evidence as it appealed to him and as long as the appreciation of evidence is not shown to be vitiated in any manner as per law or there is any

serious infirmity, there is no scope for interference in the second appeal, at the instance of the plaintiff. Learned Counsel for the respondents further

argued that so far as the factum of proof of adoption is concerned, it is a pure question of fact and the findings of the learned first appellate Judge

on such a question of fact particularly when it is supported by justifying reasons, this Court may not be pleased to interfere with the said findings

merely because the first appellate court has taken a different view from the view taken by the trial Judge. Learned Counsel for the respondents also

referred to some decisions on the question of adoption and the requirement and the mode of proof therefor, to which a reference can be made

hereinafter.

In the decision reported in AIR 1931 109 (Privy Council) it was held that a statement contained in a testamentary document with a recital that a

person has been adopted, was by itself no proof of the fact of adoption or by itself sufficient material to substantiate the adoption. In the decision

reported in Madan Lal Vs. Mst. Gopi and Another, , the Apex Court had an occasion to deal with a claim of adoption and the right of the second

appellate court to interfere with the findings of fact relating to the factum of adoption. Though it was a case wherein there were concurrent findings

of facts by both the courts below the second appellate court i.e., the High Court of Rajasthan has chosen to interfere with such findings. The

learned Judges of the Apex Court held that a bald statement of adoption cannot by itself be an evidence of the giving and taking of a person in

adoption, in the absence of further concrete materials to prove the said claim. Similarly in the case on Banwari Lal Vs. Tirlok Chand and Others, ,

the statement made by the testator in a will about a person being adopted, though may be a piece of admissible evidence may be as a rule of law

or prudence laying down any principle that such a statement must be regarded as conclusive and still the burden of proving his adoption lies heavily

on him, who claim such adoption. In the decision reported in Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, , the Apex

Court considered the question as to whether the ceremony of ""datta homam"" is essential and further as to what are the essential requisites of a valid

adoption. While holding that the physical act of giving and taking is an essential requisite to be an imperative ceremony de hors the caste to which

the parties belong, in some cases it was considered that the performance of a ""datta homam"" is necessary. It is to be seen that the Apex Court was

considering the question of necessary requisites for a valid adoption which has been effected prior to the coining into force of the Hindu Adoptions

and Maintenance Act, 1956. The proviso to Section 11 of the Act stipulates that the performance of ""datta homam"" shall not be essential to the

validity of an adoption. In view of the above though the evidence regarding the performance of a ""datta homam"" may be a proof of adoption it is

not an essential pre-requisite or a condition precedent to make the adoption a valid one after coming into force of the 1956 Act. In view of the

above, it is necessary to consider as to whether the first appellate Judge was right in his view about the status of the plaintiff when he declined to

accept the case and claim of the plaintiff that she was the adopted daughter of late Soundarapandian.

I have carefully considered the submissions of the counsel appearing on either side in the light of the evidence on record. Learned Counsel for

the appellant invited my attention to the evidence of P.W.4, the natural mother of the plaintiff and also Ex.A-4. dated 13.1.1980 on which strand

reliance came to be placed by the learned trial Judge. Per contra, the learned first appellate Judge has chosen to appreciate evidence in his own

may, of course, as was permissible for him as the first appellate court, and rejected the probative value of Ex.A-1 on the ground that the alleged

adopted father or mother were not parties to either Ex.A-1 or Ex.A-2 and that therefore, those materials did not support the case of the plaintiff.

Coming to Ex.A-4, the learned first appellate Judge thought fit apparently in the teeth of the complaint lodged by the defendants 1 and 2 before the

police higher authorities on the very next day which came to be marked as Ex.B-5 to doubt the credibility of Ex.A-4. In the absence of any other

document as corroboration to Ex.A-4 evidencing the partition, the learned Judge appears to have thought that Ex.A-4 by itself could not be relied

upon to convey any interest in any immovable properly since it was an unregistered document. The question that has to be considered and that was

urged before me is as to whether the plaintiff/ appellant cannot take advantage of the position or the statement admitting the status of the plaintiff as

adopted daughter of one Soundarapandian and Sornam and whether the defendants 1 and 2 revise from the statements made therein. This is the

only thing on which the learned first appellate Judge has differed from the view taken by the learned trial Judge on the probative value of the

statement in a document said to have been executed under compulsion in respect of which a police complaint has also been lodged initially and

marked as Ex.B-5. If the first appellate Judge, discharging his functions as a court of first appeal has chosen to doubt the credibility of a document.

The same cannot be disturbed, in my view, unless such appreciation of evidence is shown to be patently illegal or perverse and, there is very little

scope for this Court to interfere with. The findings on those facts of this case. Similarly, on going through the records and the findings of the learned

first appellate Judge, I am of the view that sound reasons based on records and materials have been given by the learned first appellate judge to

conic to a conclusion different from that of the learned trial Judge and such conclusion of the (earned first appellate Judge can not be said to suffer

any patent error of law a vitiated by perversity of approach in the matter of appreciation of evidence. The points highlighted by the first appellate

Judge based on the material marked as Ex.B-1 as also the other material in the form of Ex.B-2 or B-5 would go to show that the conclusion

arrived at by the learned first appellate Judge cannot be casticated as either rash or unreasonable or be condemned as not based on any evidence.

The second appeal therefore fails as of no merits and shall stand dismissed. No costs.