Rapeti Bulli Tatayya and others vs Rapeti Nakaraju (died by L.R.)

K. Subba Rao, C.J.—These two appeals arise out of O.S. No. 1 of 1950, a suit filed by the appellant in Appeal No. 557 of 1954 for establishing his right to share in the suit properties, for partition of the suit properties into four shares and for possession of his share with mesne profits, or, in the alterative, for grant of maintenance.

One Rapeti Appanna died on 15-9-1(sic) possessed of the properties described in A to schedules annexed to the plaint. The plaintiff case is that his mother Rajamma, after obtained a divorce from her husband Suryanarayana 18-4-1926, lived as the permanently kept concub(sic) of Rapeti Appanna for a number of years al(sic) till his death and that, just before his death, members of Appanna''s family conspired to (sic) her away from Chillangi where she was li(sic) with Appanna.

The 1st defendant is the legitimate son Appanna, the 2nd defendant is his daughter the 3rd defendant is his son-in-law being the band of the 2nd defendant. Defendants 4 to are alienees of some of the items in the p(sic) schedule. The plaintiff alleges that he, being illegitimate son of a continuously kept concul(sic) is entitled to one-fourth share in the entire p(sic) schedule property and that, in any event would be entitled to maintenance at the rat(sic) Rs. 200/- a month and arrears from 1940 till date of the suit.

Defendants 1 to 3 failed a written s(sic)ment denying that Rajamma was the conc(sic) of Appanna, much less his permanently kept (sic)cubine, and that, even if the plaintiff was illegitimate son of Appanna, he lost his right any, in the properties of Appanna as he validly taken in adoption by Sarakanam Ach(sic). They also pleaded that the plaintiff was no(sic) titled to maintenance and, that apart, the come from the properties was highly exa(sic)ted. The other defendants supported the a(sic)tions, and, in any event, they asked for the able relief of the properties sold to them allotted to the share of the 1st defendant.

The learned Subordinate Judge analytical and exhaustive judgment cons(sic) the various issues of law and fact raised in case and gave the following findings. He that Rajamma was not divorced by her hu(sic) in 1926, that for some years she lived as the tress of Appanna when the plaintiff was b(sic) her by Appanna, that subsequently she le(sic) Appanna and lived with different people, the was living as the permanently and contin(sic) kept concubine of Appanna till the plaintiff born, that the plaintiff being the product adulterous intercourse would only be entitl(sic) maintenance, that the alleged adoption plaintiff by Achayya was not true, that regard to the income from the properties a circumstances of the family he would be (sic) to an annual maintenance of Rs. 900/- an having regard to his conduct, he was untitled to any arrears.

On those findings, he dismissed the far as the relief for partition was concerned gave a decree for maintenance at the Rs. 75/- per month. The suit for arr(sic) maintenance was also dismissed. Defendant to 3 preferred Appeal No. 35f of 1952 in the lower Court gave a decree for maintenance in favour of the plaintiff. The plaintiff referred Appeal No. 557 of 1954 claiming a share the suit properties and alternatively higher to of maintenance and arrears of maintenance.

Learned counsel appearing for the parties (sic)iterated the contentions which were raised by (sic)em in the Court below. It would be convenient the outset to state briefly the principles of (sic)ndu Law germane to the subject-matter of the appeal. The illegitimate son of a Sudra by a continuously kept concubine, provided he is not (sic) fruit of an adulterous or incestuous interfuse, is entitled to a share in his putative fair''s property along with the legitimate sons.

The privy Council in AIR 1931 294 (Privy Council) , held at the illegitimate son of a Sudra by a continually kept concubine has the status of a son, (sic)t he is a member of the family, and that the there of inheritance given to him is not merely lieu of maintenance, but in recognition of his (sic) as a son. Even if the illegitimate son be offspring of an adulterous intercourse, he (sic)ld be entitled to maintenance as against the (sic)ative father, during his lifetime and, after his (sic)th out of his separate and joint property. Subrahmanya Mudali v. Velu, 20 Mad LJ 350. So far, the law is well-settled.

But, there is a conflict of view on the ques(sic) whether to enable the illegitimate son of a ra to get a share in his putative father''s property, it is necessary that his mother should have (sic) kept permanently and continuously by the (sic)er till his death or it would be enough if she so kept when the boy was born.

A Division Bench of the Madras High (sic)t in Balakrishnan v. Balasundara Vaidyan, Mad WN 503 (C), makes a distinction between the rights of an illegitimate son of a Sudra those of a kept woman or concubine. In case, the deceased kept the mother of the (sic)timate son for four or five years and there(sic) discarded her. The illegitimate son was during those years when she was exclusively by the deceased.

The deceased also left behind him a divided (sic)er, a widow and a legitimate son. The legi(sic) son died shortly after the death of the (sic)r. The Court held that the illegitimate son entitled to the whole property in preference (sic)e divided brother and the widow. Anantana Ayyar, J., who delivered the leading judge observed at page 506:

Hindu Law texts dealing with rights of ille(sic)ate sons of Sudras are different from the dealing with rights of kept women or (sic)bines. In this case we are not concerned the rights of such kept women. We are only (sic)rned with the rights of an illegitimate son.

Considering the evidence, the learned judge (sic)des as follows:

Therefore having regard to the oral evidence, (sic)firm the learned Subordinate Judge''s find (sic)at the plaintiff is the son of Nannammal (sic)vindaraja and that Nannammal was in the (sic)uous and exclusive keeping of his father and (sic)ot the fruit of adulterous or incestuous in(sic)rse. As this suit relates to the rights of the mate son and not to the rights of Nanna(sic) it is not necessary to consider about the if any, of Nannammal after Govindaraja to have anything to do with her, after he (sic)d the 3rd defendant in 1918.

This decision, therefore, lends support to the argument that vis-a-vis the rights of an illegitimate son, it is enough that his mother was kept as a permanent and continuous concubine by his putative father till he was born. But other decisions apply the same test, whether an illegitimate son claimed a right to succeed to his putative father or whether the permanently kept concubine claimed maintenance from and out of the estate of her paramour.

It is settled law that unless a woman is in the permanent, exclusive and continuous concubinage of the deceased till his death, she would not be entitled to claim any maintenance from and out of the properties left by the deceased.

In Tukaram Krishna Patil Vs. Dinkar Bisbat Mahadu, the Bombay High Court relying upon the decision of the Privy Council in Nagubai v. Monghibai, 51 Mad LJ 577: (MR 1926 PC 73) (E), which case related only to the claim of a concubine for maintenance, held that an illegitimate son would not be entitled a share, unless the woman was in the sole keeping of the paramour and the connection lasted till the death of the paramour.

The conclusion arrived at by the Bombay High Court may be supported on the principle that a ''Dasiputra'' is eligible for inheritance or for maintenance, as the case may be, because of the status of his mother as a DASI and that she will not be a DASI unless she complies with the conditions of permanent and exclusive concubine till the death of her paramour.

The view that an illegitimate son derives his rights from the status of his mother is also strengthened by the fact that, during the lifetime of the putative father, the illegitimate son is not entitled to claim any share in his property and that, he acquires his right only after the death of the putative father, when only the concubine acquires the status of a permanently kept concubine of the deceased and the illegitimate son the elevated status of DASIPUTRA.

We are bound by the decision of the Division Bench of the Madras High Court, but had it become necessary to decide the point in this case, we would have referred the question to a Full Bench for an authoritative decision. But, as we are going to hold that when the plaintiff was born to Appanna, his mother did not obtain legal divorce from her husband and therefore, the plaintiff was the product of adulterous inter course, it is not necessary to refer the question to a Full Bench in this case. We should not be understood to have expressed our preference to the Bombay or Madras view.

Another interesting question of law that arises in this case is whether the adoption of an illegitimate son of a Sudra is valid under Hindu Law. There is also conflict on this question, the Bombay High Court in Apya Shettya Talawar Vs. Rammakka Apya Talawar, ), holding that it is invalid under Hindu Law and the Mysore High Court in Hanuni v. Guthya, 26 Mys LJ 8 (G), expressing a contrary view. The Bombay High Court in Tirkangauda Mallangauda Kashigaudar Vs. Shivappa Patil., , followed its earlier view.

In Apya Shettya Talawar Vs. Rammakka Apya Talawar, Wassoodew, J., after considering the Hindu Law texts and the relevant decisions, expressed his view thus at p. 360 (of ILR Bom):

(at p. 228 of AIR):

The sages never contemplated that an adulterous son would be called upon to perform a religious ceremony

It is, important to bear in mind that a son entitled to perform sradha for the adoptive father must be capable of performing sradha to his own father. This, a son born in adultery cannot do, for he has no known father. The rituals too do not permit a son to offer sradha to his mother independently of the father.

Beaumont, C.J., though he expressed his concurrence with the view of Wassoodew, J., with some reluctance, made the following pertinent observation at p. 361 (of ILR Bom): (at p. 228 of AIR):

However, adoption under Hindu Law cannot be regarded solely from the standpoint of social expediency or abstract justice. The system is based, as the Privy Council has recently held, on the religious sentiments of the people and the belief that the soul of the deceased man will derive benefit from the performance of religious ceremonies by his surviving son, natural or adopted.

The texts referred to by my learned brother seem to show that an illegitimate son, at any rate one who is not a DASIPUTRA, would not be regarded as qualified to perform the requisite religious ceremonies for his adoptive father, and, if that is so, the basis on which a valid adoption must rest is absent.

It will be seen that the learned judges mainly based their conclusion on the view, that, under Hindu Law, an adoption is made for the religious benefit the adopted son would confer upon the adoptive father, and as that would not be possible in the case of an illegitimate son. the adoption is invalid.

The Mysore High Court in 26 Mys LJ 8 (G), on a consideration of the same texts, found no prohibition against such adoption. They further relied on the obsolete 12 descriptions of sons in Hindu Law Texts and particularly on the text which enjoins the performance of the duties of a Sudra on an illegitimate son in support of the contention that the legitimate son belongs to the VARNA of Sudra and therefore his adoption by another Sudra is valid in law.

We have carefully gone through both the judgments. We prefer the Bombay to the Mysore view. All the Hindu Law Texts relied upon by both the High Courts pre-suppose a married couple and describe in detail their right to give their child in adoption under different contingencies. It is impossible that the sages, who obviously laid great store on the religious benefit conferred by the adopted son on the adoptive father, would have sanctioned the adoption of an illegitimate son.

As Wassoodew, J., pointed out, an illegitimate son could not perform the sradha of his putative father, and therefore, could not Perform the same for his adoptive father. Further, this novel way of legitimising an illegitimate son was never to our knowledge adopted in Madras or Andhra for it is abhorrent to the Hindu notions of adoptions. The fact that the Hindu Adoption and Maintenance Act, 1956, permits such adoptions is not a reason for subverting Hindu Law Texts to meet present day conditions. It is for the Legislature to do so and they have done it by the Act.

Nor the fact that among Sudras an illegitimate son has a right to share in the properties of his putative father is a qualification for the adoption. The position has been summari sed in Mayne on Hindu Law, 11th Edition a page 636 thus:

An illegitimate son is not a coparcener with his father or bis coparceners or even with h(sic) own legitimate brothers in respect of the joint family estate. When a legitimate son and an illegitimate son succeed to their father''s separate estate, they take as coparceners with mutu rights of survivorship.

It is, therefore, clear that an illegitimate son''s right to share in his father''s proper arises only after his death and that only in regard to the separate property of the father. (sic) share also is much less than the legitimate so(sic) share and even inter se him and his broth he has not got all the usual rights of an ordina(sic) coparcener. The decisions have only recognize the right to partition and the right of surviv(sic) ship only to that limited extent.

The fact that the text books and the decisions give an illegitimate son certain property rights cannot, in our view, give him compete to confer religious benefit upon either his pu(sic)tive father or adoptive father. We are, the fore, inclined to agree with the Bombay vi(sic). But, as we are going to hold that the adopt was not true and as we have not been tal(sic) through all the Hindu Law Texts, we do propose to express our final opinion, on the question raised.

The first question of fact that arises this case is whether Rajamma was permanent exclusively and continuously kept by Appa(sic) till his death or for a shorter period, after got herself divorced from her husband jamma as P. W. 4 gives the details of her pa(sic)tage, her marriage, her subsequent alle(sic) divorce from her legal husband and her sequent living with Appanna till his death gives the following details: She was the da(sic)ter of Chadaram Appalaswami. She was mar(sic) to one Silaparasetti Suryanarayana of Narasinam.

He was a peon in the Executive Engin Office. She says in her evidence that after obtained divorce on 18-4-1926, she came to langi where she contacted illicit intimacy Rapeti Appanna and lived with him as man wife till a short time before his death. She threatened to be beaten by the wife of R(sic) Appanna and her residence was also burnt says that within two or three years after sh(sic)gan to be kept by Appanna, the plaintiff born to her and Appanna.

In her cross-examination, it is suggeste her that she had illicit intimacy with one B(sic)rasetti Simmanna of Chillangi and that plaintiff was born to him but she denies fact. She further states in cross-examine that, after she left the place she went to Ma(sic) along with her brother and after she came in 1941, she was living in Achayya''s house out paying any rent. She denies that Act took her son in adoption. This witness is (sic)ously an interested witness.

Her evidence cannot be accepted in pa(sic) in toto unless it is corroborated by other re-evidence. About her divorce, she produces bit A-l dated 8-4-1926. This document pu(sic) to have been executed by Rajamma in favour her husband. In that document, she na(sic) that due to some family misunderstandings because she did not like her husband, sh(sic) relinquished all her rights in the presence (sic)pectable people and received from her h(sic)e articles given to her by her parents at the me of her marriage. In that document, she dated that she could live as she liked. This was (sic)ttested by P. Ws. 1 and 2 and two others.

P. W. l speaks to the execution of this document and also to the details contained there(sic). He says that there was a registered sangham or their people at Anakapalle to settle such caste (sic)sputes in which he was a member. Curiously, direct question is put to him in cross-examination about the execution of Exhibit A-1.

He is asked whether he knew that, subsequent to Exhibit A-l the husband and wife lived together again and then executed fresh letters in 34. He says that he is not aware of any such (sic)nduct on her part. Learned counsel for the plaintiff contends that, as there was no direct (sic)estion in cross-examination about the genuineness of Exhibit A-l, we must accept P. W. 1''s ver(sic)n in regard to that.

It is true that no direct question was put to (sic) witness but the cross-examination clearly in(sic)ates that it is suggested that Exhibit A-l must have been a bogus one as, subsequent to its execution, both Rajamma and her husband lived ether and passed letters of divorce in 1934. other in chief examination this witness admits (sic)t there was a registered sangham for their (sic)munity but the alleged divorce was not put (sic)ough them as it should if it was a real one.

Hindu Law does not permit divorce. If a plaintiff relies upon customary divorce, he must (sic)ge and prove the incidents of that custom this witness does not help the Court in that (sic)ect. This evidence, therefore, must be tested the light of the letters that are put to him cross-examination. So too, P. W. 2 speaks of Exhibit A-l and his attestation of it. A similar (sic)tion was put in his cross-examination and for reasons given by us in the case of P. W. l evidence cannot be accepted at its face value (sic)ss properly tested by the other evidence in case. P. W. 4 says in her evidence that, at time of Exhibit A-l, she gave the counter executed by her to her husband. This evidence implies that two documents executed on 18-4-1926, one document by her favour of her husband and the other by him (sic)er favour. Indeed she says specifically that gave the counter part to her husband. On other hand, Exhibit A-l is a document execu(sic)oy her in favour of her husband. This document should have been with her husband. Curi(sic) she produces this document but she does produce the document alleged to have been (sic)ted by her husband in her favour.

The defendants have produced Exhibits B-5 and B-6. Exhibit B-4, dated 17-1-1934 is (sic)ter alleged to have been written by P. W. 4 (sic)r father. She stated therein that, for want sufficient time, she was not able to visit her (sic)r and that all of them were doing well. (sic) that letter, Suryanarayana, her husband, written a post-script to the effect that, when (sic)ent to Visakhapatnam, he would get cashew(sic) required by his father-in-law. Exhibit B-5, dated 29-1-1934, was another written by Rajamma to her father. It contained a post-script by her husband Suryanarayana. These letters, if true, would (sic)sively establish that in 1934 she was living her husband. Exhibit B-6, dated 28-12-1934, settlement deed executed between P. W. 4 (sic)er husband whereunder she took Rs. 20/-agreed that each of them should live sepa(sic) as they liked.

This was also attested by D. W. 1. Exhibits B-4 and B-5 are post cards with postal seals. If these documents were true, they establish that, notwithstanding the sexual lapses of Rajamma, there was no divorce between husband and wife that after she lived for some time with Appanna she went back to her husband and that they both lived as if nothing had happened. If really there was a,divorce in 1926, there was no occasion or reason for executing another settlement deed recording a divorce. The question, therefore, is whether these documents could be accepted as genuine.

D. W. 1 was a clerk in the Executive Engineer''s Office, Srikakulam in 1934. He says that he wrote the letters Exhibits B-4 and B-5 at her instance and that he also wrote Exhibit B-6 and attested it. It is not elicited in his cross-examination that when her husband could himself write, why she asked him to write the postcards. It may be that the thought that D. W. 1 being a clerk would write her letters better than her husband.

He is a disinterested witness and there is no reason to reject his evidence particularly when the post-cards bear the stamps of the year 1934. No attempt has been made to suggest that the stamps on the post-cards were subsequently affixed.We therefore accept the evidence of D. W. 1 to the effect that he wrote Exhibits B-4, B-5 and B-6. These documents were produced by D. W. 9, the son-in-law of Appanna. He describes how he was able to come across Exhibits B-4, B-5 and B-6.

He made enquiries as to who the husband of Rajamma was one Dadi Appayyamana, sister of Bidda Narasimham, told him that Rajamma''s father used to get letters read by her brother and she would see that if there were any such letters in her brother''s records. She found the letters Exhibits B-4 and B-5. Then he went to Narasipatnam and obtained Exhibit B-6 from Venkayamma, the second wife of Suryanarayana.

No doubt, his evidence savours of a police investigation. But he is very much interested in litigation as the first defendant gifted his wife a large extent of property after the death of his father and there is nothing unnatural or unreasonable in his making an investigation to get at the documents to support the defendant''s case. As there are no reasons to disbelieve D.W. l''s evidence, we must accept that these documents are genuine. If so, they improbabilise the fact that there was a divorce in the year 1926.

As we have already pointed out, the counter part executed in favour of P.W. 4 Is not produced and the document produced can easily be concocted. That apart, the mere writing of a letter cannot dissolve a legal marriage unless it is established that the customary method of divorce of that particular community could be achieved by the mere writing of a letter. P.Ws. 1 and 2 do not give any other instance where a divorce in the Gavara caste was effected in such simple manner.

The only other instance is spoken to by P.W. 5 who says that her daughter called Lakshmikantham exchanged divorce letters with her husband. This evidence is not sufficient to establish the incidents of customary divorce in the Gavara community. We are, therefore, of the opinion that Exhibit A-l is a spurious document and, even if it is genuine, it does not establish that there was a valid divorce in 1926 between Rajamma and Suryanarayana. The aforesaid evidence establishes that at any rate in 1934 Rajamma was with her husband in Narasipatnam.

D.W. 8 is one Bheemarasetti Simmanna. He says in his evidence that, about 25 years back, i.e., about 1927 plaintiff''s mother returned to her parent''s home in Chillangi, that while she was there, he had illicit intimacy With her, that for one year she lived in her parent''s house, that thereafter he kept her in the house of Nidan(sic) Pothaiah, that he kept her for four years and that plaintiff was born to her in the second year after she came out of her parent''s house while she was with him as his keep. The learned Judge, who had seen this witness, observes in the judgment thus:

The witness did not impress me as of a type that could adroitly assert a bare-faced lie of an association with a woman without any basis at all at any time for such an association.

We must accept the opinion of the Judge formed by his observing the demeanour of this witness. But the question is whether this witness kept P.W. 4 for the entire four years or only for a shorter period after she left Appanna. This witness is a cooly. It is suggested to him that he was telling lies for money but he denies it. He cannot give the year of his intimacy with Rajamma.

He even denies the obvious fact that Rajamma was called Rapeti Rajamma in Chillangi. What is more, when a blood test is suggested he refused to have it for the obvious reason that he is conscious that the plaintiff was not born to him. This witness, though he kept P.W. 4 for some time, is willing, for reasons best known to him, either because of spite or ill-will, to extend the period of her illicit connection with him so as to cover the period of the boy''s birth.

If he was really born to him, it is unnatural that he would have ignored the boy for all these years. That in itself indicates that the boy was not born to him. We are willing to accept his evidence to this extent, namely, that after the boy was born, i.e., after 1929 he must have kept P.W. 4 till she left his house in the year 1933. We have already stated that, after leaving Simmanna, she went to her husband but separated from him on 28th December, 1934.

The next step in her peregrinations is found in her evidence though she postpones the date. Her version may be stated thus: After Appanna became ill and when her house was burnt, she left with her brother to Manyam where she stayed in Achayya''s house and for some time in Muttadar''s house. After she returned from Manyam 8 years back, i.e., in 1944, she was residing in Achayya''s house at Chillangi without paying any rent. P. W. 8 Achayya says in his evidence that ever since he constructed the upstair, plaintiff and her mother have been residing in it, that he would be coming from agency every two or three months and stay there, that he has no children or family and that Rajamma was not paying any rent to him. He also admits that he had executed an adoption deed giving all his properties to the plaintiff after his death to facilitate plaintiff''s marriage.

D.W. 7 Subbavarapu Simhachalam produced a group photo Exhibit B-2 wherein Achayya and P.W. 4 were standing on his either side, and the plaintiff was sitting at the feet of Achayya. This evidence clearly establishes that P. W. 4 went to Manyam and for some years stayed in the house of Achayya, who lost his wife and after coming back to Chillangi, continued stay in Achayya''s house without paying rent and that Achayya gave all his properties to her so after his life-time.

The photograph also shows the friend terms in which Achayya and P.W. 4, lived. We cannot believe the story of Achayya that she w(sic) just living in the house doing pooja for him. We have no doubt that P. W. 4 was in the keeping Achayya after she left her husband. The question is when did she begin to live with Achayya. Did she go to Manyam just before the date death of Appanna or was she living with Achayya before that? D.W. 7, the guru, says that the photograph was taken 15 years prior to his g(sic)ing evidence, i.e. in the year 1937. P.W. 8 Achayya admits that he knew Rajamma for two three years before the photo was taken.

P.W. 4 Rajamma says that the photo (sic) taken soon after they returned from Manyam and that she stayed in Manyam for four years If the protograph was taken in 1937 immediate after they came back from Manyam, she (sic) have been living with Achayya at any rate f(sic) 1934, whether we accept P.W. 4''s evidence t(sic) she was for four years at Manyam or P.W. (sic) evidence that he knew her three years prior the photo. It follows that after she left husband in 1934, she was living as the concub(sic) of Achayya till the filing of the suit.

From the aforesaid evidence, the lowing facts emerge. After living with her (sic)band for a few years, P.W. 4 was kept by Ap Appanna till about the year 1929 during which pe(sic) the plaintiff was born. Thereafter, for three four years, she was the keep of D.W. 8, Bhimsetti Simmanna. In the year 1933, she (sic) back to her husband and separated from on 28th December, 1934.

Her story of customary divorce from husband in 1926 was neither true nor (sic). Thereafter, she left for Manyam with her (sic)ther and, after staying there for four years came back to Chillangi and lived with Ach(sic) thereafter. From the aforesaid facts, we agreeing with the Court below, that the plaintiff was the product of an adulterous interc(sic) and that P.W. 4 was not the permanently continuously kept concubine of Appanna till death.

The next question is whether the plaintiff was born to Appanna. P.W. 4 in her (sic)dence says that she was kept by Appanna his mistress, that the plaintiff was born to and that she was known as Rapeti Raja from the time of his birth. P.W. 5 her sister speaks to the same fact. P.W. 6 also says P.W. 4 was Appanna''s concubine though would extend the period of concubinage t(sic) death.

He adds that the plaintiff was born P.W. 4 was residing in Pothaiah''s house. P(sic) would say that the plaintiff was known (sic)pute as the son of Rapeti Appanna. No (sic) these witnesses have exaggerated the case (sic) plaintiff and would put the date of her (sic)ture from the company of Appanna about time of his death. There is no reason the believe that part of their evidence if it (sic)roborated by other unimpeachable evidence.

Exhibit A-2 is a certified copy extract from the births and deaths Regis hillangi village pertaining to the birth of the plaintiff. Under the heading ''father''s name'', Ra(sic)ti Appanna is noted and under the heading mother''s name'' Rajamma is mentioned. Under (sic)e heading ''date of birth'', 30th August, 1928, is own. The name of the child is mentioned as (sic)okaraju.

Columns 11 and 13 show that one Cheeppula (sic)tsadu a servant gave the information of the (sic)th and column 14 contains the initials of the registering Officer ''D.S.'' P.W. 3 the plaintiff in evidence says that D.S. stands for Diddi Suba Rao, the village munsiff of Chillangi and that (sic)tsadu referred to in it was the village Bariki (sic) that both of them passed away. This document clearly establishes that in August, 1928, a by name Nookaraju was born to Rapeti Appanna and Rajamma and that information was (sic)en by the village servant.

It is not suggested that the original of this (sic)ument was fabricated for the purpose of this (sic). But what is argued is that it is not rele(sic)t evidence. Exhibit A-2 being the certified (sic)y of a public document can be produced in of of the contents of the original document under S. 77 of the Evidence Act. But it is said the contents of the document, though pro(sic) are not relevant under S. 35 of the Act such reads:

An entry in any public or other official (sic), register or record stating a fact in issue relevant fact and made by a public servant he discharge of his official duty or by any (sic)r person in performance of a duty specially (sic)ined by the lay of the country in which book, register or record is kept, is itself a ant fact.

It is contended is that the entry in the birth (sic)ter was not made by the Registering Officer (sic)e discharge of his official duty but in dero(sic)n of the duty enjoined on him by Act (III (sic)99) and, therefore, the entries would not be (sic)ant under S. 35 of the Act. The birth register is maintained under Act of 1899. Under S. 17(2) of the Act, an ex(sic) of the entries from the book is proof of entries. The second proviso to S. 8 provides he manner in which the entries in the regi(sic) should be made in the case of an illegiti(sic) child. The proviso reads:

Provided also that in the case of an illegi(sic)e child, it shall in the first instance be (sic)iuty of the mother of such child to give nation under this Act, and no person shall, (sic)her of such child, be required to give infor(sic) under this Act concerning the birth of child, and the registrar shall not enter in register the name of any person as father (sic)h child, unless at the joint request of the (sic)r and of the person acknowledging himself the father of such child, and unless such (sic) shall sign the register together with the (sic)r.

(sic)g upon this provision, it is stated that as register does not contain any indication that (sic)ma and Appanna made a joint request to (sic)r the name of Appanna as the father of (sic)ild and as Rapeti. Appanna did not sign(sic)gister together with the mother, the Register Officer exceeded his duty in recording the of Appanna as father and, therefore, the made in direct violation of the manda provisions of S. 35 could not be considered (sic)ies made in the discharge of the register ing officer''s official duty within the meaning of S. 35 of the Act.

But this argument pre-supposes that the registering officer had knowledge of the fact that Appanna was the paramour of Rajamma or that Cheppula Latsadu informed him that the child born was the illegitimate child of Rapeti Appanna. The entries did not ex facie indicate any such knowledge on the part of the registering officerlor was information to that effect given by Latsadu. Prima facie the entries show that Latsadu informed the Officer that a male child Nookaraju was bom to Rapeti Appanna and Rajamma. When information to that effect was given to the officer, it was his duty to make entries and, it cannot be said that when he made the entries he did not discharge his official duty within the meaning of S. 35.

The argument now advanced may have some force if there is evidence or if it is conceded that Latsadu informed the registering officer that Nookaraju was born to Appanna by his concubine. There is no such evidence in this case. We, therefore, hold that the entries in Exhibit A-2 are relevant for establishing the case that Nookaraju was born to Rajamma by Appanna. The entries corroborate the oral evidence in the case that Nookaraju was born to Appanna by Rajamma.

Exhibit A-3 is an extract from the admission register of the school in Chillangi, which shows that on 1st August, 1935, a boy called Rapeti Nookaraju, son of Rajamma was admitted into that school. The date of birth was given as 2lst August, 1929. The date of leaving the school is shown as 30th July, 1936. It is true that another entry relating to Bulli Thathayya, Appanna''s son gives the name of the father under the heading "name of father or guardian."

Learned counsel for the defendants contends that if Appanna was the father, under the heading "name of the father or guardian" even in the case of Nookaraju the name of Appanna could have been given and the fact that, instead of Appanna, Rajamma''s name is given indicates that Appanna was not the father of Nookaraju. But, we have found that By 1935, Rajamma ceased to be under the protection of Appanna.

The house-name Rapeti given to Nookaraju is a sure indication that, as early as 1935 when admittedly Appanna was living, Nookaraju''s house-name was given as Rapeti i.e., house-name of Appanna, which would not have been the fact if it was not well recognised in that village that Nookaraju was born to Appanna. It is also contended that the date of birth given in Exhibit A-3 does not tally with that given in Exhibit A-2 and therefore, the entries in Exhibit A-3 cannot be relied upon.

Nothing turns upon this discrepancy. The mistake must have been due to the fact that Rajamma or somebody who took the boy to the school on her behalf must have given the wrong date. From that fact, it cannot be inferred that the original date given in Exhibit A-2 was based upon wrong information. Exhibit A-3 also therefore corroborates the oral evidence that Rajamma adopted the houses-name of her paramour Appanna as she was kept by him. This also shows that as Nookaraju was born to Appanna, his house-name was given as Rapeti. We have, therefore, no hesitation to hold on the evidence that Nookaraju was born to Appanna.

The next question is whether the adoption of the plaintiff by Achayya was true. It is settled law that a person, who sets an adoption, must prove by clear evidence the factum of the adoption, particularly when the adoption was a recent event. Deeper scrutiny of evidence is called for in a case where the adoption set up, as in the present case, is that of an illegitimate son which, to say the least, is not ordinarily done.

Exhibit B-7, dated 17-5-1949, purports to be an adoption deed executed by Achayya in favour of Kannayyamma. It is said that Kunnayyarama was the name given to the plaintiff after the adoption. In that document, it is recited that Achayya took the boy in adoption during his childhood with the consent of his mother, gave him education and purchased some immovable property in his name.

He proceeds to state that, as it was necessary to celebrate his marriage arid as an adoption deed was not executed, he was executing the same. Under the document, he made him the karta of his VAMSA and also the HAKKUDAR of his moveable and immoveable properties after his lifetime. It is attested by two persons, Peda Veera(sic)aju and Apparao. This document does not give the date of adoption, except vaguely stating that the plaintiff was adopted during his boyhood.

The document also discloses that it became necessary to execute it as the boy had to be married. Exhibit B-8 series were the accounts of D. W. 6 who says that he had katha dealings with the plaintiff in 1948 under the name of Sarakadam Kama Rao and that the accounts contained his signature. Exhibit B-9 series are the accounts relating to the dealings of D. W. 6 with the plaintiff after the adoption. There is no reason to reject his evidence.

The aforesaid documents show that in 1948-49 the plaintiff had dealings with D. W. 6 under the name of Kama Rao and that, on 17-5-1939, Achayya admitted in Exhibit B-7 that the plaintiff was adopted by him when he was given the name of Kannayyamma.

D. W. 7, Simhachalam, who is alleged to have performed the adoption ceremony, says that on one occasion in the year 1937, Achayya tied tali to Rajamma as a token of marriage that on that occasion, Achayya said he would adopt Rajamma''s son, that two months thereafter he made Rajamma to give the boy and that Achayya received the boy in adoption. This witness is one of the religious mendicants, who profess to initiate illiterate people in the ways of religion.

He has not maintained any evidence of the marriage or adoption. Though he says there were many S1SHYAS of his, who were present at the time of the adoption, none of them has been examined. No document was got executed at the time of the adoption. He does not remember even the month or the year when the adoption took place. Though in chief examination he says that the photo Exhibit B-2 was taken at the time of the adoption, he says in cross-examination that the adoption took place two months before the photo.

Immediately he changes his version and says that the adoption took place an hour before the photo was taken. The photo exhibit B-2 does ex facie establish the factum of the adoption. P. W. 4 says that when her guru, his wife and son were taking a photo, he asked her and Achayya to stand as if they were worshipping the guru. The photo is in accord with the description given by P. W. 4. P. W. 8 also says that the guru asked him to in the photo and that he did not object.

We are not able to accept the evidence of D. W. 7, on the question of adoption. P. W. gives the circumstances under which he execute the adoption deed. He says that he execute the adoption deed at the request of the 3rd defendant and Doddi Venkanna the father-in-law the plaintiff. In cross-examination, he explain further to the effect that the 3rd defendant to him that Doddi Venkanna was refusing to girl his daughter in marriage to the plaintiff unle(sic) he executed a document, as if he adopted the plaintiff before he conveyed the whole property.

He further adds that as the plaintiff''s (sic)ther was doing pooja in his house and as it was said that the marriage would not take place (sic) less he executed the document he executed. We have already expressed the view that the witness had kept P. W. 4 as his concubine a that both P. W. 4 and the plaintiff were living with him in his house.

It may well be that this witness was look after the boy as his own and that, at the insta(sic) of his concubine, he executed a document to fa(sic) litate the marriage of the boy. This witn(sic) clearly says that he did not take any boy in ad(sic)tion and in the circumstances we have no rea(sic) to disbelieve him. P. W. 4, the mother also nies that she gave the boy in adoption, P.W. (sic) is Doddi Venkanna the father-in-law of the plaintiff. He also corroborates the evidence of P. W. (sic).

On the side of the defendants, D. W. (sic) only speaks to the attestation of Exhibit D. W. 3 is the writer of the adoption deed evidence of these two witnesses does not carry matter further for the execution of the adop(sic) deed is not at all in dispute.

From the aforesaid evidence, the following facts in regard to adoption emerge. Ex(sic) the vague evidence of Simhachalam, D. W.(sic) there is no direct evidence to prove the fac(sic) adoption. The date or month of adoption is known. The learned Subordinate judge, who seen the witnesses, was not able to accept evidence.

No one, except D. W. 7, spoke to the fact the ceremony of adoption had taken (sic) P. W. 4, the mother and P. W. 8. the al(sic) adoptive father deny the fact of the adop(sic) P. W. 8 explains the circumstances under (sic) the document came into existence. The acc(sic) of D. W. 6 only show that a year prior to or the execution of the adoption deed, the pla(sic) carried on business with him and signed hi(sic) counts in the name of Kama Rao. We did think on the solitary and vague evidence of hachalam we can hold that the adoption taken place.

Further the case set up is the extr(sic)nary case of the adoption of an illegitimate. This is not a case of adoption which took long ago. If really it had taken place, there be eye-witnesses and one of them has been mined. It is more likely that Achayya, wh(sic) P. W. 4 and had no sons, brought up the plaintiff as his own son and treated him as suc(sic) executed an adoption deed in order to se(sic) bride to him.

We, therefore, agreeing with the learned ordinate Judge, hold that the defendant failed to establish that the plaintiff was in adoption by P. W. 8. We have already (sic)ed our preference to the view that under Law the adoption of an illegitimate son valid. But, as we hold that the fact of atnot proved, it is not necessary to express our(sic)nal opinion on the said question.

31-a. Our conclusions from the aforesaid discussion of the evidence may be stated thus: P. W. 4 was not the permanently kept concubine Appanna for she had left him even in 1929 (sic)d lived with different people. Though she was married woman, she lived with him as concu(sic)ne between the years 1926 to 1929 and the plaintiff was born to him by her during that period. P. W. 8 Achayya, though he treated him as his (sic)n, did not take him in adoption.

On these findings, it follows that the plaintiff would be entitled to maintenance under Hindu law from and out of the properties left by Appanna. The learned Judge found on the evidence, (sic)ving regard to the extent, the nature and (sic)ue of the properties, that the annual income (sic)m the said properties would not be less than Rs. 6,000/- a year. On that basis and having re(sic)d to the other relevant factors, he fixed the (sic)e of maintenance at Rs. 75/- per month, i.e., annual maintenance of Rs. 900/-.

The learned counsel for the plaintiff contends (sic)t the amount fixed is disproportionate to the some from the family properties and the needs the plaintiff. We cannot agree. The plaintiff the product of adulterous intercourse. It is not appear from the record that there was mutual affection between him and his puta(sic) father. He along with his mother left him (sic) before his death and was living presumably (sic)er difficult circumstances along with his mo(sic)s paramours.

He was not obviously accustomed to the stan(sic) of comforts to which his putative father accustomed. That apart, though he was not (sic)ted, he had practically become a member of (sic)ayya''s family and was provided for by him he circumstances, we agree with the learned (sic)e that Rs. 900/- per year is a reasonable rate maintenance.

It is then said that the learned Judge wrong in not awarding arrears of mainten(sic). The question is whether in the circumstance of the case, the learned Subordinate Judge right in inferring abandonment of the plaintiff claim. The facts which emerge from the (sic)ence clearly disclose that P. W. 4 and the plaintiff left the care of Appanna as early as and, though Appanna died in 1940, the suit filed in 1950, i.e., ten years after his death, (sic)t the oral allegations of P. W. 4, that she demanded the 3rd defendant for mainten(sic) there is nothing on record to substantiate fact.

After they came back from Manyam, they only in Chillangi and never made any at to assert the claim of the plaintiff though (sic)mably to their knowledge, various items of (sic)rty were sold in favour of defendants 4 to Achayya provided for them, they never to make any demand. In the circumstance the learned Judge was justified in inferring (sic)onment of his claim on the part of the plaintiff. The plaintiff is, therefore, not entitled (sic) arrears.

In the result, both the appeals fail and dismissed with costs.