Andhra HC (Pre-Telangana)
Bodla Ravindranath vs Chintala Venkatalaxmi And Ors. on 29 July, 2005
Equivalent citations: 2005(6)ALD358
JUDGMENT A. Gopal Reddy, J.
1. This is an appeal by the 2nd defendant, calls in question the legality of the judgment and decree of the 1st Additional Special Judge for SPE & ACB cases-cum-Additional Chief Judge, City Civil Court, Hyderabad in decreeing the suit of plaintiff in O.S. No. 128 of 1982 for declaration that she is the only heir, successor of the suit schedule property and for recovery of possession.
2. Background facts as pleaded by plaintiff were that suit schedule property, double storied building bearing M.C. No. 15-2-314 & 315 situated at Kishangunj, Hyderabad originally belongs to one Bodla Raghavulu husband of Bodla Jejamma. Their only daughter by name Venkatamma predeceased Jejamma and her daughter Sulochana was married to first defendant-Kasinath and they had only daughter, plaintiff. On the death of Sulochana, Kasinath married Danamma and through her he got two sons and one daughter. The appellant-2nd defendant is the eldest son of Kasinath and Danamma. It is the case of the plaintiff that late Jejamma was the absolute owner of the suit schedule property who separated the 1st defendant from her house after the marriage and allowed to live in a separate room with the leave and licence, but Jejamma always used to reside with the plaintiff even after her marriage. Late Jejamma had an attack of paralysis about 2 years prior to her death. On the death of Jejamma, the 1st defendant occupied the suit house forcibly and appropriated all the movables, gold jewellery and valuables. When the plaintiff tried to take possession of the house and movables under the lock and key of the 1st defendant, he is postponing the same on one pretext or the other. Thereupon she issued a lawyer's notice dated 25-3-1981 Ex.A1. In the reply notice, Ex.A2 the 1st defendant set up a false plea of adoption by Jejamma and Will Deed executed by her bequeathing the suit schedule property in favour of her adopted son, 2nd defendant. In view of the same, plaintiff filed the above suit asserting late Jejamma never adopted 2nd defendant and never executed any Will, therefore, she alone entitled to succeed the property.
3. Resisting the suit claim defendants 1 and 2 filed separate written statement, whereas defendants 3 to 6 who were subsequently added as per the orders dated 20-10-1982 in LA. No. 131 of 1982 remained ex-parte. It is the contention of the defendants that late Jejamma was very religious minded and wanted a male issue in her family to avoid Punnama Narakam either natural or adopted. Under her persuasion the 1st defendant married 2nd wife after the death of plaintiffs' mother. Since from the birth of the 2nd defendant late Jejamma was very much attached to him and treated the 2nd defendant as her own son and had an intention to adopt him. At the time of marriage of plaintiff in April, 1968, late Jejamma executed a sale deed in her favour for a consideration of Rs. 4,000/- in respect of house property adjacent to suit schedule property bearing M.C. No. 15-2-316 to 319 situated at Kishangunj, Hyderabad, in fact, no consideration was paid for that document. The 1st defendant got the said document executed in favour of the plaintiff out of affection for the issues of both the wives. Thus, the plaintiff already got one building of late Jejamma, which is a similar value of the suit property, and living with her husband, whereas Jejamma all through lived along with the family members of the defendants in the suit house. She adopted the 2nd defendant on 11-5-1977 and also performed thread marriage according to Hindu rites, which was attended by the plaintiff and her husband and other relatives. On the next day late Jejamma executed a Will bequeathing her property to the 2nd defendant. Jejamma died on 23-12-1977 and funeral rites of late Jejamma were performed by the 2nd defendant. She will not wear any gold and silver articles, as the same were stolen away in the year 1974. Police people could not recover the stolen articles in spite of complaint. In view of adoption and also by virtue of Will, the 2nd defendant inherited the suit property in which the plaintiff will not have any right. Therefore, she is not entitled to the relief of declaration and for recovery of possession and the suit is barred by limitation. On these pleadings the following issues were settled for trial.
1. Whether the plaintiff is the heir of late Bodla Jejamma as her great granddaughter and is entitled to the suit property?
2. Whether late Bodla Jejamma has adopted the 2nd defendant as her son on 11-5-1977?
3. Whether late Bodla Jejamma has executed the Will in sound and disposing state of mind and bequeathed her properties in favour of the 2nd defendant?
4. Whether the suit of the plaintiff is time barred?
5. Whether the Court fee paid is sufficient?
6. To what relief?
4. In order to prove her case, plaintiff herself was examined as P.W.1; fingerprint expert, who compared the fingerprints on Ex.B5-Will Deed with that of Ex.A3, was examined as P.W.2 and her husband was examined as P.W.3 and got marked Exs.A1 to A13. In rebuttal, the 1st defendant himself was examined as D.W.1; whereas 2nd defendant was examined as D.W.7 apart from D.Ws.2 to 6 and got marked Exs.B1 to B5. Exs.B1 to B4 are group photographs, whereas Ex.B5 is the Will executed by late Jejamma. On appreciation of oral and documentary evidence, the learned trial Judge on Issue No. 1 held that plaintiff being the great granddaughter and legal heir of Jejamma entitled to the suit schedule property and answered the issue accordingly. Issue Nos. 2 and 3 are considered together and held that adoption is not proved whereas execution of Will is surrounded by suspicious circumstances. Though the evidence of D.Ws.2 to 4 on the date of execution of the Will is inconsistent, the evidence of D.W.1 shows that he played prominent role in execution of Will-Ex.B5. Since the defendants failed to remove the suspicious circumstances and failed to discharge the onus cast upon them, on Issue No. 4 it was held that suit as such is not barred by limitation. Since no declaration is sought for, Article 57 of the Limitation Act has no application. Issue No. 5, payment of Court fee, answered in favour of the plaintiff and accordingly decreed the suit of the plaintiff as prayed for. Aggrieved by the same present appeal was filed which was allowed by this Court on 10-1-2003 reversing the finding of the trial Judge on Issue Nos. 2 and 3, and held that Will has been validly proved but defendants failed to remove suspicious circumstances and Will cannot be accepted as last Will and dismissed the suit of the plaintiff. Aggrieved by the same plaintiff carried the matter before the Supreme Court in Civil Appeal No. 6185 of 2004 wherein the Supreme Court set aside the judgment of the High Court and remitted the matter for re-disposal.
5. Mr. T.S. Anand, learned Counsel for the appellant made the following submissions:
(a) Though the plaintiff filed the suit for declaration that she is the only legal heir succeeding the property and for recovery of possession, plaintiff had the knowledge about adoption on the death of Jejamma when the 2nd defendant performed the ceremonies. Once Jejamma died on 23-12-1977, suit has to be filed within three years, but the suit was filed on 20-1-1981. Therefore, suit is barred by limitation.
(b) Under Section 11 of the Hindu Adoptions and Maintenance Act, 1956 (for short "the Act") Datta Homam is not an essential ingredient for a valid adoption. When Exs.B1 to B3 show giving and taking of the boy in adoption, lower Court disbelieved the same on the ground that the photos were taken in different places. Therefore, plaintiff is not entitled to declaration, it is only the adopted son-2nd defendant can succeed the property. Alternatively he also submits that late Jejamma executed a Will-Ex.B5. To prove the factum, attestors-D.W.2 and D.W.4 were examined. D.W.3 who is the scribe of the document categorically stated about execution of Will. In view of the same, defendant No. 2 alone is entitled to bequeath the suit property.
6. Per contra, learned Counsel for the 1st respondent/plaintiff contends that Article 57 of the Limitation Act will apply if any relief is claimed on adoption. Since the relief claimed by the plaintiff is only for declaration of her succeeding to the properties left by her late great grandmother, Article 57 has no application. Once the larger relief is claimed apart from her seeking declaration that she succeeded to the property, Article which is applicable to the larger relief is governed by limitation, and the cause of action as stated in the plaint is only on the respective reply notice, wherein it was pleaded suit as such is not barred by limitation and placed reliance on Kamalamma v. Narasimha Reddi, 1969 (1) An. WR 308 and Naseem Begum v. S.M. Kaleem, . He also contends that in the absence of any evidence of giving and taking adoption of 2nd defendant by late Jejamma and in the absence of any consent of 2nd defendant's mother to the said adoption as contemplated under Section 9(2) of the Act, the adoption is not valid. The mother of 2nd defendant was not examined nor consented to give 2nd defendant in adoption by 1st defendant. In the absence of any suggestion to P.W.1 that the photos under Exs.B1 to B3 were taken during the course of adoption, 2nd defendant cannot claim adoption only on the basis of photographs, which are only piece of corroborative evidence to substantiate direct evidence. In view of discrepancy of evidence about execution of the Will and once the defendants failed to establish that they are entitled to property and it is plaintiff being the natural heir of late Jejamma is entitled to declaration.
7. In view of above rival submissions, the following points emerge for consideration.
1. Whether the suit of the plaintiff is barred by limitation?
2. Whether the 2nd defendant is adopted son of late Jejamma and adoption as such pleaded has been proved?
3. Whether the Will executed by Jejamma is true and valid?
Point No. 1: It was contended by the learned Counsel for the 1st respondent/ plaintiff that in Para 4 of the plaint it is stated that Godla Jejamma never adopted the 2nd defendant and at any point of time she executed the alleged Will. Since the Court has to go incidentally the validity of adoption for declaration of right in the suit schedule property, suit as such has to be filed within 3 years from the date of knowledge under Article 57 of the Limitation Act. The plaintiff who examined as P.W.1 deposed that the contention of D.Ws.1 and 2 that late Jejamma took 2nd defendant in adoption and performed Upanayanam and executed a Will are all false. D.W.1 falsely stated to her that Jejamma adopted 2nd defendant, therefore, she is not entitled to the rents. In the cross-examination she admitted after the death of Jejamma 2nd defendant performed ceremonies and she has not given any notice to her father that the said adoption is not true. Plaintiff's suit is only for declaration that she alone is the heir succeeded to the properties of late Jejamma and which is occupied by 1st defendant and their men on her death and claims recovery of possession as legal heir of late Jejamma. The lower Court on Issue No. 4 held as regards the relief of possession certainly the suit is well within the time and no adverse possession can be pleaded and no declaration is sought that 2nd defendant is not the adopted son if it so, the situation is different. Though incidentally the Court has to decide whether the adoption pleaded by 2nd defendant is valid or not, Article 57 of the Limitation Act has no application and suit is not hit by limitation.
8. An identical issue fell for consideration before this Court in Kamalamma's case (supra). It is appropriate to lightly touch the facts of the above case: The only widow filed the suit after the death of her husband, succeeded to the properties and was in possession on the day when the Succession Act, 1956 came into force and she became the absolute owner of the suit property. The 1st defendant, who is the brother of plaintiff's husband and the father of the 2nd defendant, did not like the idea of her becoming absolute owner, interfering with the plaintiff's possession and started threatening the plaintiff's watchmen and servants with the assistance of 2nd defendant in the above suit. The 1st defendant admitted the facts mentioned in the plaint but denied about threatening the peaceful possession of the plaintiff. He set up an oral agreement to the effect that the plaintiff would enjoy the property as the life tenant and after her death it goes to the 1st defendant; whereas the 2nd defendant who contested the suit stated that plaintiff's husband gave permission to adopt the 2nd defendant in order to perpetuate his line. Plaintiff's husband made up his mind to take the 2nd defendant in adoption but could not, however, complete the same and before his death he gave permission to the plaintiff to adopt the 2nd defendant. In pursuance of the said authority, the plaintiff took 2nd defendant in adoption after going through the ceremony. Thereafter, the plaintiff executed an adoption deed and it was got registered and from the date of adoption 2nd defendant is cultivating the suit lands and he is in possession of the suit house. This Court after noticing the various changes of Limitation Act, 1859, 1877, 1908 and 1963 Act which governs limitation to establish or set up adoption and various case laws on the said aspect right from Privy Council decision in Jagadamba Chowdharani v. Dakhina Mohun, (1885) LR 13 IA 84 and Full Bench judgment of this Court in Janikamma v. Mattareddi, (1956) An.WR 220 : 1956 ALT 225, held as under:
"It is therefore difficult to accept that decision as holding that a suit filed by the widow against the so called adopted son for either recovery of possession or for a declaration of her title would in essence be a suit for declaration that the adoption of the defendant is invalid or in fact did not take place within the meaning of Article 118 of the Limitation Act (Article 57 of 1963 Act) although it may be that incidentally the question relating to the adoption has necessarily to be decided in the suit. It must be remembered in this connection that the suit in that case was by the reversioner. We have already noticed in the above said Privy Council case that Article 118 is applicable only to cases mentioned in illustration (f) to Section 42 of the Specific Relief Act. That is the view taken by the above said Full Bench decision also. We do not therefore consider that this Full Bench decision helps in any way the 2nd defendant. It is true that if in truth and substance the suit is one for a declaration that an adoption is invalid, Article 118 would apply. The relief that the adoption is invalid or in fact did not take place need not expressly be asked for. If in essence that is the relief which is asked for by the plaintiff, undoubtedly Article 118 would apply. It is now, however, a settled view as discussed above that a suit for possession on the basis of the plaintiff's title would not be a suit which could be said to fall within the purview of Article 118. On the same analogy, a suit for declaration of title and issue of an injunction would fall outside the ambit of Article 118 because it would not be a suit in essence for declaration that the adoption is invalid or in fact did not take place though it might be necessary in such cases for the plaintiff to establish incidentally the invalidity of the adoption or for the Court to find that the adoption in fact did not take place. Merely because an issue in reference to adoption is framed and that the matter has been gone into, it cannot be said that the character of the suit is such that it would fall within the purview of Article 118. It must be remembered that the present suit of the plaintiff is for declaration of her title as she claims under Section 14 of the Hindu Succession Act and for the issue of a permanent injunction restraining the defendants from interfering with her possession. By no stretch of imagination it can validly be contended that this suit is in essence a suit for declaration that the adoption of the 2nd defendant is invalid or in fact did not take place although as stated earlier it might be a matter in dispute between the parties and the Court is called upon to decide that question. But that does not, in our opinion, alter the character of the suit. We practically find no difference between a suit for possession by a widow or a natural born son against the so-called adopted son for the recovery of possession or if the plaintiff is in possession for declaration of her or his title and for the issue of an injunction as the principle in both these cases would be the same, that is to say, that such a suit would not be a suit essentially falling within the ambit of Article 118."
9. This Court in Naseem Begum's case (supra) after noticing the Division Bench judgment in Pavan Kumar v. K. Gopalakrishna, , where the suit instituted by the plaintiff therein for declaration that he is the absolute owner of the property held that it is governed by Article 65 of the Limitation Act and bring it within Article 58 or Article 113 of the Limitation Act.
10. Hence, the relief claimed as above, and in view of two Division Bench judgments of this Court though the Court incidentally considered the issue as the suit is filed for declaration of her title and for recovery of possession it will fall under Article 65 of the Limitation Act but not by Article 57 as contended. Point No. 1 is accordingly answered in favour of the plaintiff and against the 2nd defendant/ appellant.
Point Nos. 2&3: Once the defendants claim succession burden heavily lies on them to prove validity of adoption. Chapter II of the Act regulates adoption. Section 6 deals with requisites of valid adoption.
No adoption shall be valid unless--
(i) the person adopting has the capacity, and also the right, to take in adoption;
(if) 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.
Persons who are capable of giving adoption is envisaged under Section 9 of the Act, which reads as under:
(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of Sub-section (3) and Sub-section (4), the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.
(3) x x x xx (4) xx xx x (5) xx xx xx
11. It is not in dispute that parties are Hindus and governed by the Act. Performance of Datta Homam shall not be essential to the validity of the adoption or its registration in view of proviso to Section 11 of the Act.
12. In Madhusudan v. Narayan Bai, , on which much reliance was placed by the learned Counsel for the appellant the Supreme Court considered the essential requisitions of valid adoption and held as under:
"For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. Shoshinath v. Krishnasunder, (1880) 7 Ind. App 250. In Lakshman Singh v. Smt. Rupkanwar, , this Court briefly stated the law 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 formal ceremony. No particular form is prescribed for the ceremony, but the law requires that, the natural parent shall handover 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."
In some cases, to complete the adoption a "datta homam" has been considered necessary, but in the case of the twice-born classes no such ceremony is needed if the adopted boy belongs to the same gotra as the adoptive father. Bal Gangadhar Tilak v. Shirnivas Pandit, (1915) 42 Ind.App 135 : AIR 1915 PC 7. In the present case, the appellant has pleaded the custom of his community that the act of giving and taking suffices to effect a valid adoption, and nothing has been shown to us to indicate that the further ceremony of "datta homam" was necessary."
13. Further, the Supreme Court in Kishori Lal v. Chaltibai, AIR 1959 SC 504, held as under:
"As an adoption results in changing the 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 is to leave no occasion for doubting its truth."
14. To prove the factum of adoption DWs.2, 3, 4 and 5 were examined apart from Exs.B1 to B4 photographs and Ex.B5 Will deed. Though the negatives were filed along with positive prints of the photos some how the negatives have not marked by the Court below nor examined the photographer who has taken the photos. Since the photographs are not seriously disputed, the lower Court considered the said photographs and observed as under:
"Exs.B1, B2 and B3 are group photos taken separately. Ex.B4 is the photo taken at the time of the thread ceremony of D2. In Ex.B4 the purohit, PW6 is also seen. The background in Ex.B4 appears to be the place where at the ceremonies or the rituals were performed, in other words, Ex.B4 photo was taken at the time when the rituals were being performed. But it is not the case with Exs.B1 to B3. The group photos amply suggest that they were taken separately elsewhere from the actual place of the alleged ceremonies. It is not known as to why the photos are not taken when the actual rituals of adoption ceremony being performed. It is in the evidence that the adoption ceremony as well as the thread ceremony both are performed on one and the same day. In such a case, the photos of the adoption ceremony especially the important ceremonies of giving and taking and Datta Homam should have taken as in the case of Ex.B4. Therefore, Exs.B1 to B3 photos cannot be relied upon to show that they were taken at the time of actual adoption ceremony was being performed."
To prove Ex.B5-Will Deed, DWs.2, 3, 4 and 5 adduced evidence. D.W.5 stated about execution of Will. D.Ws.2 and 4 stated about execution of Will and their attestation. D.W.3 who is the scribe of the Will and no other than the maternal grandfather of 2nd defendant stated that Ex.B5 was executed on the same date of adoption. The recital in Ex.B5, Will Deed proves the factum of adoption. The lower Court considered Ex.B5 by giving the following reasons.
15. Admittedly, Will is unregistered scribed on a stamped paper and the parties took all precautions. It is not known as to why the Will was not got registered though the testatrix survived for a long time even after execution of the alleged Will. The trial Court felt thumb impression said to have been affixed by the testatrix and is appearing on the document in a smudged impression. The ridge characteristics of the thumb impression are not clear, though the thumb impression was taken with the aid of stamp pad. Therefore, nonregistration of the Will and the smudged appearance of the thumb impression on the Will are the two things prima facie appear on the document to be suspicious, and the same has to be removed by preponderance.
16. D.Ws.2 and 4 are the attestors and D.W.3 is the scribe of the Will. D.W.3 who is none other than the father-in-law of D.W.1 and maternal grandfather of 2nd defendant deposed at one stage of the cross-examination that the testatrix herself dictated the terms of Will and the elders gathered also told the terms of the Will. At another stage of the cross-examination, he says that a draft was already prepared at the instance of elders and he was asked to copy the draft. Both the statements are inconsistent and one excludes the possibility of the other. D.W.3 further states that Ex.B5-Will was executed on the same date of adoption, which took place in the morning and Ex.B5 was executed in the evening. Further, in the cross-examination it is stated that elders told him that Jejamma affixed her thumb impression on Ex.B5, so I know, which clearly establishes that Jejamma had not affixed her thumb impression in the presence of witnesses. Then remains the evidence of D.Ws.2 and 4. D.W.2 in his examination-in-chief stated about execution of Will by late Jejamma and her affixation upon Ex.B5-Will; whereas in the cross-examination he stated that he is a friend of 1st defendant for the last 34 years and further admitted that he does not remember the details of Ex.B5 and D.W.3 prepared the draft and also fair of Ex.B5 and D.W.3 scribed Ex.B5 at their instance. D.W.4 a retired teacher of 85 years was examined on commission, and a reading of his evidence inter alia gives an impression that he understood Ex.B5 as adoption deed. He told that he attended the adoption ceremony and he also stated Jejamma signed on the documents but he does not know what is written except the facts of adoption. The evidence of D.Ws.2 and 4 about execution of Will Deed is inconsistent. As per the pleadings of P.W.1, Jejamma was practically bed ridden and lifted from bed to attend the natural calls and prior to her death she was unaware of day-to-day activities and she was not able to hear and recognize the persons. Plaintiff in her evidence stated that Jejamma was bed ridden being paralytic for two years prior to her death. Though it is stated doctors attended her, none were examined to prove that she suffered paralytic stroke. D.W.1 who is no other than the father of 2nd defendant stated in his chief-examination that just before adoption of 2nd defendant, Jejamma fell and broke her bones and he got attended during her illness and the plaintiff has been residing in the house gifted to her by Jejamma. Further, in the cross-examination he stated that late Jejamma adopted 2nd defendant and then performed his thread marriage, which was attended by the plaintiff and her husband. In one place he admitted that property covered by sale deed was executed in favour of plaintiff out of love and affection, which falsifies the earlier statement that Jejamma gifted the property to the plaintiff. He admitted that Will was not registered and the suit property was not mutated in the name of 2nd defendant. In order to avoid any litigation from the side of plaintiff in future Jejamma executed the Will in favour of her adopted son. At one stage he stated after adoption his son did not go to school but again says his son studied in school two or three years after adoption upto X class and failed and thereafter he passed Osmania Matric. He does not know the name of the father recorded in the school records of 2nd defendant. Whereas D.W.2 admitted in the cross-examination that he went only for feast and do not know who took the thumb impression of Jejamma on Ex.B5 which was executed on the next date of adoption of 2nd defendant and he do not know whether the Jejamma was residing in the suit house or in the house of the plaintiff. He also stated by abundant caution to avoid future litigation Jejamma executed a Will deed in favour of her adopted son.
17. Evidence let in clearly discloses that Jejamma was confined to bed and even according to 1st defendant she suffered fracture. The lower Court observed once the parties anticipated, to avoid litigation Ex.B5, Will Deed was executed and testatrix was alive for 7 months after execution. As in the natural course plaintiff is entitled to suit properties as class-II heir of late Jejamma. When the defendants occupied the suit house to deprive her succession, it is necessary to prove the factum of adoption and valid execution of Will besides of clearing all suspicious circumstances attending upon Will. As the defendants failed to remove the suspicious circumstances, the lower Court disbelieved the same. In view of settled legal position in Sashi Kumar v. Subodh Kumar, ; Sushila Devi v. Pandit Krishna Kumar Missir, ; Seth Beni Chand v. Kamala Kunwar, and Jaswant Kaur v. Amrit Kaur, , once Ex.B5 is eschewed from evidence the only evidence available is Exs.B1 to B4 photographs.
18. Learned Counsel for the appellant fairly stated that there is no direct evidence to speak that there was a ceremony of actual delivery in acceptance of the boy. None of the witnesses stated about actual giving and taking of boy in adoption. Unless the requirements of valid adoption are established, namely, actual delivery of the boy in adoption and its acceptance, the 2nd defendant cannot succeed to the said property as an adopted son. It is also relevant to notice that consent of the mother as contemplated under Section 9(2) of the Act has to be obtained before the boy was given in adoption. It is nowhere stated that the consent of the mother was obtained and the father and mother jointly gave the boy in adoption after obtaining such consent from the mother. Defendants miserably failed to prove the consent of the mother before giving the boy in adoption. No suggestion was put to P.W.1 by showing photographs to her that the same were taken during the course of adoption where PW1 and her husband were witnessed actual delivery and acceptance by late Jejamma none of the witnesses was examined on behalf of the defendants to prove the factum of valid adoption, particularly when PW1 clarified that they are invited for Upanayanam Ceremony and not for Datta Homam. Further, D.W.2 made several admissions and depositions that he had the document pertaining to adoption but no such document was filed to prove the factum of adoption. When the parties contemplated to avoid future litigation and a Will Deed was obtained from Jejamma, they can very well obtain adoption deed or can register the Will Deed to avoid future litigations. All these facts clearly establish that defendants failed to prove the factum of adoption. Having regard to the said fact, the lower Court rightly considered the Issues 2 and 3 in favour of the plaintiff and against the defendants and accordingly decreed the suit. In the absence of any direct evidence only by a look into photos, Court cannot infer that there was actual delivery of boy in adoption of his natural parents and acceptance by Jejamma, particularly when D.W.3 in his evidence stated that whenever, required Jejamma sent for plaintiff on love and affection for consultation. In view the said admission of D.W.3, once late Jejamma out of love and affection towards great granddaughter, as she lost her mother in prime age and her father married second alliance naturally sympathy will always be on the plaintiff but not on her adopted son-2nd defendant, if any. Once the appellant/2nd defendant who is claiming property as an adopted son failed to establish the factum of valid adoption and the Will as a natural corollary, the plaintiff who is a class-II heir will succeed the property of her great grandmother-Jejamma is entitled to the declaration sought by her. Point Nos. 2 and 3 answered in favour of plaintiff and against the 2nd defendant.
19. Appeal is bereft of merits and it is accordingly dismissed. No costs.