Andhra HC (Pre-Telangana)
Vandrasi Ramakrishna vs Nagoti Saroja on 15 March, 2000
Equivalent citations: 2000(2)ALD737, 2000(2)ALT434
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT
1. The unsuccessful plaintiff, who lost in both the Courts below, has come up in second appeal. He laid the suit for declaration that he was the adopted son of one late Vandarasi Srinivasa Rao, The defendants 1 to 5 in the suit are the daughters and the 6th defendant is a natural son of the said Srinivasa Rao. Srinivasa Rao and plaintiffs natural father Satyanarayana (PW2) are brothers. Though the suit was filed for a bare declaration without seeking any consequential relief, the main reason for filing the suit appears to be to secure renewal of certain contracts which Srinivasa Rao had wiih the Railway. Yet curiously the railway was not impleaded as a party to the suit nor was any relief claimed against the Railway. According to the plaintiff the alleged adoption took place at Chinaganjam on 31-3-1972. By that date Srinivasa Rao had only five daughters and the sixth defendant was subsequently born. Srinivasa Rao died on 14-3-1981. He was a Railway Contractor running stalls on the Railway platforms at Vijayawada, Ongole and Chinaganjam Railway Stations under licences from the Railway. The present suit was filed on 24-4-1981.
2. According to the defendants there was no adoption of the plaintiff at all by Srinivasa Rao and the suit was engineered by PW2 who was the natural father of the plaintiff and the brother of Srinivasa Rao to facilitate the renewal of the Railway Contracts. It is also their case that on the advice of PW2, defendants 1 to 5, the daughters of late Srinivasa Rao, put their signatures on blank papers for the purpose of corresponding with the Railway and PW2 pressed into service such signed blank papers to fabricate some letters and documents describing the plaintiff as adopted son of Srinivasa Rao.
3. Initially an ex parts decree was passed in the suit on 16-6-1981. But the same was set aside on an application filed by the first defendant. After trial, the trial Court dismissed the suit with costs and also granted compensatory costs of Rs. 1,000-00 against the plaintiff holding that the plaintiff failed to prove the adoption and that the suit was filed on a false ground known to the plaintiff and it was actuated by mala fides. The Appellate Court, while concurring with the finding of the trial Court that the adoption was not proved, however, held that there was cause of action for the suit and it was maintainable. In view of the finding on the question of adoption, the Appellate Court dismissed the appeal filed by the plaintiff with costs.
4. Sri Sivasubramanyam, the learned Counsel appearing for the plaintiff-appellant, sought to assail the judgment of both the Courts below by contending that the Courts below failed to consider the effect of the admissions made by the defendants in Exs.A2, A4, A5, A6, A10 and A13 which clinchingly establish the adoption and they were completely swayed by the observations made by this Court in Writ Appeal No.1360 of 1991 vide Ex.B11 and as such the judgments under appeal are totally vitiated. The learned Counsel further contended that the defendants are estopped from denying or disputing the said documents as the same were acted upon and the defendants derived benefit thereunder. The learned Counsel finally submitted that the Courts below failed to bear in mind the principles laid down by the decided cases in regard to the proof of adoption and particularly in regard to the effect and value of the admissions made by the defendants in the aforesaid documents.
5. On the other hand, Sri B. Narasimhasarma, the learned Counsel appearing for the respondent submitted that the concurrent findings recorded by the Courts below on the question of adoption which is primarily a finding of fact based on a proper appreciation of the oral and documentary evidence on record is not amenable for interference under Section 100 CPC. He also contended that the plaint does not disclose any cause of action and the suit for bare declaration without any consequential relief is not maintainable under law.
6. The following substantial questions of law have been formulated for consideration in this second appeal:
(a) Whether the Appellate Court and the trial Court have ignored the doctrine of faction valet in the matter of adoption of the appellant herein.
(b) Whether the documentary and oral evidence produced by the appellant both by personal witnesses and also documents can be discarded under the provisions of the Evidence Act.
(c) Whether the appellant is entitled for declaration that he is the adopted son of late V.S. Rao and there was cause of action for such declaration vide Specific Relief Act Section 34.
7. The main question which, therefore, arises in this second appeal is whether the alleged adoption is true and it is proved by any legal evidence, The burden is undoubtedly on the plaintiff to establish the adoption pleaded by him. To prove the adoption the plaintiff, besides examining himself as PW1 and his natural father as PW2, also examined an employee who worked under the Srinivasa Rao for some time as PW3 and the Purohit who is alleged to have officiated at the ceremony of adoption as PW4. The plaintiff also got marked Exs.Al to A35. However, the learned Counsel for the appellant sought to rely mainly on certain alleged admissions contained in Exs.A2, A4, AS, A6, A10 and A13. On behalf of the defendants only the first defendant was examined as DW1 and Exs.B1 to B30 were marked on their side.
8. The principles governing the proof of adoption have been laid down in a catena of decisions of the Apex Court as well as the High Courts and also the Privy Council. Reference may, however, be made only to a few relevant decisions which are applicable to the case on hand.
In Debi Prasad v. Tribeni Devi, , it is held that under Hindu Law the giving and receiving of a boy are absolutely necessary to the validity of an adoption; they are the operative part of the ceremony, being that part of it which transfers the boy from one family to another; but the Hindu law does not require that there shall be any particular form sofar as giving and acceptance are concerned; for a valid adoption all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, and that the boy shall be handed over and taken for this purpose. The burden of proving satisfactorily that he was given by his natural father and received by the adoptive father as his adopted son is on the alleged adopted son. It is further held that long recognition as an adopted son raises a strong presumption in favour of the validity of the adoption. In the case of an ancient adoption evidence showing that the boy was treated by relations, including the person who later on challenges the same, fora long time as (he adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming. It was further held that there is no pre-determined way of proving any fact. If, after taking an overall view of the evidence adduced in the Court, the Court is satisfied that the adoption pleaded is true, it must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well.
In Thirumal Reddiar v. Koppiah Reddiar, (1996) 2 MLJ 155, a learned Judge of the Madras High Court, after referring to various authorities has explained when the burden of proof shifts to the defendant in the following words:
"It is no doubt true that the burden of proving an adoption is initially on the party asserting it. But where the defendant has himself admitted in a series of documents that the plaintiff is the adopted son of A, the burden of proving that there was in fact no such adoption shifts to the defendant. What a party himself admits to be true may reasonably be presumed to be so. As it could not, however, be a case of estopped, the party making the admission may give evidence to rebut this presumption. But unless and until that is satisfactorily done, the fact admitted must be taken to be established. Proof of admissions by the opposite party shifts the onus."
This dictum was approved by a Division Bench of the Madras High Court in Nagayasami v. Kochadai, . In Rahasa Pandioni v. Giokulananda Panda, , Apex Court cautioned as follows:
"The Court has to Act with a great deal of caution and circumspection. Be it realised that selling up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position, as an adoption would deliver! the normal and natural course of succession."
9. In the instant case both the Courts below, on consideration of the oral and documentary evidence on record, came to the conclusion that the oral evidence of PWs.l to 4 is interested and not convicing and that there are several improbabilities and suspicious circumstances surrounding the alleged adoption and the plaintiff failed to remove the suspicion.
10. Now coming to the documentary evidence, there is absolutely no documentary evidence prior to the suit to show that the plaintiff was recognised or treated as the adopted son of late Srinivasa Rao. On the contrary, there is voluminous evidence on record describing the plaintiff as the son of PW2 even after the date of the alleged adoption. Exs.Bl, B2, B3, B18 and BI9 and B30 are the school records of the plaintiff like Progress Report, School Certificate, Transfer Certificates, Study Certificate, Admission Certificate etc., where he was described as the son of PW2 only but not as the adopted son of Srinivasa Rao. All these documents relate to the period subsequent to 1972. Similarly Ex.B13 is the voters' list of 1984 wherein the plaintiff was described as the son of PW2. Ex.B20 is another important piece of evidence. It is a registered will dated 1-10-1983 executed by the mother of PW2 and grand-mother of the plaintiff. In this document also the plaintiff was described as the son of PW2 only and there is no reference to any adoption. Further by Ex.B20 the restatrix bequeathed a half share in her properties to the sons of PW2, i.e., the plaintiff and his brother Madhusudhan and the other half was bequeathed to the sixth defendant who is the son of Srinivasa Rao. Another important circumstance which militates against the theory of adoption is that the plaintiff admittedly did not claim any share in any of the other properties belonging to Srinivasa Rao and the same were allotted to defendants 1 to 6 only.
11. As regards the alleged admissions contained in Exs.A2, A4, A5, A6 and A10 and A13 on which much reliance is sought to be placed by the learned Counsel for the appellant, it may be mentioned that all these documents have come into existence after the filing of the suit only. From a reading of the said documents as a whole, one clearly gets the impression that they have been brought into existence mainly for the purpose of facilitating the renewal of the Railway Contracts and the settlement of disputes which arose between the parties subsequently. Far from proving the alleged adoption the said documents throw any amount of doubt about the adoption. Ex.A2 is a letter dated 31-3-1981 addressed by defendants 1 to 6 and the plaintiff to the Railway intimating the death of Srinivasa Rao on 14-3-1981 and stating that they have no objection whatsoever for transfer of the contracts standing in his name to the plaintiff who was described therein as the eldest son of Srinivasa Rao. There is no mention whatsoever about the alleged adoption in Ex.A2. There was also no reference to this leHer in the plaint which was subsequently filed on 18-4-19S1. Ex.A4, which is the same as Ex.A13, is a letter dated 29-11-1985 addressed by the first defendant to the Railway stating that after the death of Srinivasa Rao, the Railway Contracts standing in his name were transferred in her favour as there was some delay in getting the Court's declaration regarding the legal adoption of the plaintiff and subsequently the Court delivered judgment declaring the plaintiff to be the legally adopted son of Srinivasa Rao and she has, therefore, no objection for transfer of the contracts from her name to the plaintiffs name. This document was, however, denied by DW1 in her evidence by stating that PW2 obtained her signatures on several blank papers for the purpose of obtaining the renewal of the Railway Contracts. It is pertinent to observe that even though an ex parte decree was passed in the suit on 16-6-1981, surprisingly on 9-8-1981 the second defendant addressed a letter to the Railway (Ex.A10) with a request that the contracts may be transferred in the name of any one of the family members including the plaintiff. It was, no doubt, mentioned in this letter that the plaintiff was the adopted son of Srinivasa Rao and the adoption had been declared to be valid without specifically referring to the ex parte decree passed in the suit. However, the plaintiff himself subsequently addressed a letter dated 15-9-1981 (Ex.Al 1) to the Railway requesting the Railway to transfer the contracts to any one of the family members who fulfils the objectives of the Railway Board Circular dated 28-7-1978. Surprisingly even in this letter, there is no reference to the decree in the suit. In view of the said letters i.e., Exs.A2, A10 and All, the Railway ultimately transferred the licences in favour of defendants 1 and 6 by Ex.A12 order dated 1-10-1981. Unfortunately the sixth defendant died in the year 1985. Thereafter it appears that the plaintiff got his name included as a partner along with Dl which led to several disputes between the parties and the first defendant thereupon got the ex parte decree in the suit set aside alleging that no notices were served on the defendants and that the ex parte decree was obtained by collusion and fraud played by PW2 and the plaintiff, she also filed a criminal complaint in CC No.77 of 1992 for the offences of forgery etc., against the plaintiff which however, ultimately ended in acquittal. Ex.A5 evidences the settlement arrived between defendantsl to 5 on the one hand and PW2 on the other through mediators in which the plaintiff also signed. Surprisingly in this settlement also the plaintiff was described only as the son of PW2 but not as the adopted son of Srinivasa Rao and there is no reference whatsoever to the alleged adoption. Ex.A6 is another settlement between defendantsl to 5 and PW2 on 27-11-1988. There is nothing in this settlement also which can be said to be an admission of the alleged adoption. In one para it is merely mentioned that it is agreed that if signatures of Vandarasi Ramakrishna, the adopted son, are required at the time of registration and in the matter of property, it should be acted as per pleader's advice. Beyond this equivocal statement there is nothing positive in support of the adoption. DW1 in her evidence has stated that this portion was not there in the draft document and the final document was not read out.
12. On an overall consideration of these documents, it cannot be said that there are any clinching admissions in support of the alleged adoption pleaded by the plaintiff which can outweigh the other documentary evidence on record which clearly militates against the truth of the alleged adoption. It is not as if the Courts below have totally ignored or failed to consider these documents. After considering the same, the Courts below have given cogent reasons for discarding the same. Further the defendants have satisfactorily explained under what circumstances these documents came into existence. I do not, therefore, find any legal infirmity or substantial error of law in the concurrent findings recorded by both the Courts below warranting interference under Section 100 CPC. I do not also find any substance in the criticism levelled by the learned Counsel for the appellant that the Courts below were completely swayed by the observations made by this Court in Writ Appeal No.1360 of 1991 where this Court made some adverse comments against the conduct of the plaintiff and failed to independently consider the evidence on record on its own merit. In this view of the matter I do not think it necessary to go into the other questions of law touching the cause of action for the suit and its maintainability.
13. For the foregoing reasons, I do not find any merit in this second appeal and it is accordingly dismissed. In view of the relationship between the parties, there will be no order as to costs.