Judgement

K.M Natarajan, J.

The unsuccessful defendant in O.S No. 197 of 1981 on the file of the Subordinate Judge, Tiruchirappalli, has preferred this appeal challenging the decree and judgement passed in the said suit.

The case of the respondent-plaintiff is briefly as follows:— The plaintiff's grand-father Marudaiya Pillai, who was a devotee of Subramaniaswami wanted to perform a charity on auspicious days like Karthigai, including feeding poor. He constructed a building and named it after “Karthigai Annadhana Mandapam” next to his house at door No. 24, Thiruthanthoni Road, Woriyuur, Tiruchy and he was performing the said Kattalai. His ambition was that the kattalai must be continuously performed without any break even after his lifetime. Hence, he created a permanent trust under the name and style of “Karthigai Kattalai attached to Annadhana Madam” and endowed properties set out in the schedule thereto. In the said madam, there is a portrait of Palani Dhandayudhapani for which he used to perform pooja on every Karthigai day of every Tamil month. Accordingly, he has created a permanent trust in the last Will and testament dated 12.7.82

As per the recitals in the Will he has entrusted the performance of the charities to his second wife's son Vaidyalingam Pillai, the defendant herein and the deceased Sivastibramaniam Pillai alias Pitchai Pillai. Sivasubramaniam Pillai died leaving no heir except his wife Ponnurengathammal. She in turn adopted the plaintiff who is no other than her elder daughter's son by a deed of adoption dated 5.2.1976 Prior to the adoption, the performance of the charity was done in rotation for six months by Ponnurengathammal representing her husband for another six months by the defendant, after the death of her husband in 1970.

3. The defendant filed O.A No. 74 of 1976 under S. 63(b) of the Hindu Religious and Charitable Endowments Act behind the back of the plaintiff and obtained a declaration that the management of Annadhanam charity is a hereditary office on 5.10.1976 According to the plaintiff, the said order is not binding as he is not a party. However, after coming to know of the said order, the plaintiff has chosen to file an appeal before the Commissioner H.R & C.E, praying for remanding the said case for fresh disposal after setting aside the same and impleading the plaintiff as a party. The said appeal A.P No. 159 of 1978 was dismissed by the Commissioner, with an observation that the Deputy Commissioner in O.A No. 74 of 1976 has decided that the office is only hereditary and that he has not decided the right interse between the rival parties and hence directed the plaintiff to file a separate suit. Hence this suit for partition of the right to manage the Karthigai Annadhana Kattalai attached to Karthigai Annadhana Madam into two equal shares and allot one such share to the plaintiff to manage the same in rotation for six months each by the plaintiff and the defendant.

4. The said suit was resisted by the defendant and in the written statement, it is contended that the plaintiff is not the adopted son of late Sivasubramania Pillai and the adoption by Ponnurangathammal is not true and valid. It is further stated that the said adoption cannot defeat the exclusive right of the defendant to the right of management of the plaint trust or to manage the properties of the same and to conduct the charity in question. It is further stated that the testator Marudiah Pillai has directed that his sons Vaithialingam Pillai and his younger brother Sivasubramania Pillai should enjoy the properties allotted for the suit charity and perform the charity during their life time and thereafter it should be conducted by their senior male heirs.

After the death of Marudiah Pillai in 1938, the charity came to be performed by the defendant and Sivasubramania Pillai, Sivasubramania Pillai died in 1968 leaving no male heir. Hence, his male line having become extinct, the defendant became the sole trustee. Sivasubramania Pillai's widow Ponnurangathammal had no right to represent her husband or his state. Further, from the date of death of Sivasubramania Pillai, the defendant has been functioning as the sole trustee and he has prescribed rights to exclusive trusteeship by adverse possession for over the statutory period. It is further stated that against the order passed by the Commissioner, no suit has been filed under S. 70 to set aside or modify the order and the order of the Commissioner has become final. It is also stated that the adoption is contrary to the provisions of the Hindu Adoptions and Maintenance Act. In particular, it is stated that since the right of management had been vested with the defendant on the death of Sivasubramania Pillai and on the extinction of male heir, the plaintiff cannot be divested under the Hindu Adoptions and Maintenance Act. Hence, he prayed for dismissal of the suit. It is further stated that the suit has not been properly valued and proper court fee paid and the suit is barred by Ss. 70 and 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act.

5. On the pleadings, the trial court framed 8 issues. On the side of the plaintiff Ex. A1 to A 46 were marked and P.Ws 1 to 4 were examined. On the side of the defendant, no document was marked and he examined himself as D.W 1. The learned Sub Judge for the reasons assigned in his judgement held under issues 2 and 3 that the charity does not vest with the defendant exclusively and the adoption can clothe the plaintiff with the right of management in the suit Annadhana Kattalai as per the provisions of the will Ex. A.1 Under issue 1, it was held that the plaintiff is the adopted son of Ponnurangathammal and Sivasubramania Pillai and the adoption is true and valid. Under issue 4, it was held that the question of prescription by adverse possession will never arise in this case and that the defendant failed to prove that he has prescribed title by adverse possession. Under issue No. 5 relying on the decisions of this court in Krishnaswami Raja v. Krishna Raju (1968-1 M.L.J 110) and Rengayya Gounder v. Karuppa Naicker (1971-1 M.L.J 359 = 84 L.W 137) it was held that under S. 57(b) of the Hindu Religious and Charitable Endowments Act of 1951, the jurisdiction of the Deputy Commissioner is only to decide whether a trustee holds or held office as a hereditary trustee, that is, in relation to the status of the office of trusteeship, but he is not competent to go into the further question as to who among the competing claimant is a hereditary trustee and that it is the civil court which has to decide the same and consequently held that the suit is not barred by Ss. 70 and 108 of the H.R & C.E Act. Under Issue No. 6 it was held that the suit was properly valued and court fee has been correctly paid. Under issues 7 and 8, the suit was decreed for partition as prayed for, Aggrieved of the said judgement, the defendant has come forward with the appeal.

6. Though various grounds have been raised in the grounds of appeal, the learned counsel for the appellant Mr. V. Narayanaswami confined his arguments to the following points. According to the learned counsel, the finding of lower court with regard to the truth and validity of the adoption is not sustainable and the trial judge has not discussed the oral evidence adduced in the case. The reasoning; given by the trial court for arriving at a conclusion in favour of the plaintiff is erroneous. He would submit that the court below erred in deciding the question whether the suit is barred and also the question whether the defendant has acquired right by prescription. The learned counsel submitted that as per Ex. A 4 registered adoption deed, ceremonies were to be performed and that the plaintiff has not established the actual adoption ceremonies prior to adoption, and that the priest or poosari who performed the ceremonies was not examined and as such the findings of the trial court are not sustainable. As regards limitation, it is submited that the relevant provision of the Limitation Act, namely Article 113 of the Limitation Act, was not argued before the lower court, that it is a question of law, that the plaintiff has not come forward with the suit within 3 years when the right to sue accrued, that the adoption is in 1976, that the suit was filed in 1981 and that the suit is barred by limitation.

7. The points that arise for determination in this appeal are:

1. Whether the adoption of the plaintiff by Ponnurangathammal is true and valid,

2. Whether the suit is barred by limitation. As regards the first question, the adoption by Ponnurengathammal, widow of Sivasubramania Pillai, is evidenced by a registered adoption deed Ex. A.4 dated 5.2.1976 The fact of adoption and the execution of the document is spoken to by P.W 1, the adoptive mother, who is no other than the grandmother of the plaintiff and the plaintiff is no other than the son of the elder daughter of the adoptive mother. P.W 2 is no other than the natural father of the plaintiff, P.W 3 is the natural mother, Ex. A.4 is dated. 5.2.1976 which is described as the adoption deed, under which the plaintiff was adopted by Ponnurangathammal (P.W 1) and Sethuraman (P.W 2). P.Ws 1 and 2 have signed the adoption deed. It is recited therein that the adoption was for the purpose of performing the charities. It is also recited therein that Ponnurangathammal adopted the plaintiff as her son and that the ceremonies for adoption have to be performed on an auspicious day according to the caste custom. To prove the adoption, as already stated, the plaintiff relied on the evidence of the adoptive mother Ponnurangathammal (P.W 1) and his own father P.W 2. The plaintiff also relied on the admission made by the defendant and the answer checked in cross-examination with regard to the adoption. P.W 1 has deposed that on 1st December, 1970, her husband expired and thereafter she was managing the property in his place in turn along the defendant. Even during the lifetime of her husband, he expressed that she should adopt the plaintiff. Accordingly she adopted the plaintiff as her son. Her elder daughter who is the natural mother of the plaintiff, and her son-in-law who is the natural father of the plaintiff, came to the Registrar's Office and Ex. A.4 the adoption deed was executed. Two weeks later, an Ayyar conducted the ceremonies according to caste custom, in the presence of lessees and relations who were present on invitation. Homam was also conducted. The plaintiff was placed in P.Ws 1's hands by his natural parents. P.W 1 has also asserted that one Venkatachalam Iyer performed the homam. According to the learned counsel for the plaintiff, the evidence of P.W 1 in chief-examination, which is extracted above, has not been challenged in cross-examination. On the other band, questions were put only about the authority of P.W 1 to adopt, and the factum of adoption is not challenged.

8. From the questions and answers elicited, it is clear that the adoption is not disputed. Not even a single question was put challenging the evidence with regard to the performance of ceremonies and also about the execution of the documents Ex. A.4 It is seen from the cross-examination that question was put to the effect that P.W 1 was not given in writing the authority to adopt and that the adoption was taken only to defeat the rights of the defendant. Even in cross-examination P.W 1 has stated that ceremonies were performed for adoption. Except suggestions that the adopted son has no right, nothing was suggested in cross-examination to show that there was no adoption according to law. Similarly, P.W 2, the natural father of the plaintiff, has also deposed in the chief-examination about the ceremonies performed for adoption on 19.2.1976, and the execution of Ex. A.4 on 5.2.1976 prior to the adoption ceremonies. He has stated that as per their caste custom, ceremonies were to be performed with the help of Ayyar, and he performed the ceremonies with the help of Ayyar. The relations and the lessees and other important persons were present and in their presence the plaintiff was entrusted to the adoptive mother by placing him on her waist. This aspect of the evidence has not been challenged in the whole of cross-examination. The only suggestion is that Ex. A.4 came into existence to defeat the rights of the defendant. It was elicited that it is not recited in Ex. A.4 that it came into existence as per the wish of Sivasubramania Pillai. A question was put to this witness whether the adoption under Ex. A.4 was taken after the defendant obtained the order of declaration, which suggests that the defendant did not dispute the adoption. But he only contended that in order to defeat his right, P.W 1 has adopted the plaintiff and Ex. A.4 adoption deed came into existence.

9. In this connection, the learned counsel for the respondent drew the attention of this court to the decision in A.E.G Carapiet… v. A.Y Derderian…. (A.I.R 1961 Calcutta 359 at page 362) where a Division Bench held:—

“(10.) The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believe that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that was going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the house of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks to question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice first by springing surprises upon the party then he has finished the evidence of his witnesses and when he has further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated.

(11.) On this point the most important and decisive authority is Browne v. Dunn, reported in (1893) 6R. 67. It is a decision of the House of Lords where Lord Herschell, L.C Lord Halsbury, Lord Morris and Lord Bowen were all unanimous on this particular point. Lord Chancellor Herschell, at page 70 of the report observed:—

“Now, My Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact, by some questions put in cross-examination showing that the imputation is intended to be made, and not to take his evidence and pass it by a matter altogether unchallenged and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilest he is in the box, to give him an opportunity of making any explanation which is open to him, and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses”.

10. The learned counsel for the respondent drew our attention to another decision reported in Cuni Lal v. Hartford Fire Insurance. (A.I.R 1958 Punjab 440 at page 444). Where also the earlier quoted English decision in Browne v. Dunn was quoted and it was held:

“It is well established rule of evidence that a party should put to each of his opponent witnesses so much of his case as concerns that particular witness. If no such questions are put, the court presume that the witness account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation”.

11. In this connection, the learned counsel drew the attention of this court to the decision of this court in State Of Madras v. Sulaika Beevi Ammal (1959 M.W.N 698 at 700 = 72 L.W 683) where while considering the waiver of notice under Section 80 C.P.C, it was observed as follows:—

“In support of his contention, the learned Government Pleader said that S. 80 was a mandatory provision, which had to be strictly complied with. The learned Subordinate Judge did not accept this contention. He has pointed out that the uncontradicted evidence of P.W I. in the case was that the 9th respondent filed the writ petition on behalf of all the other co-sharers in a representative capacity and that therefore, the present suit filed by all the co-sharers and that he could not join as plaintiff in that suit as at that time he had gone away to Rangoon. That evidence has not been challenged in cross-examination”.

12. As rightly observed by the learned counsel for the respondent, in this case the plaintiff has adduced evidence through, P.Ws 1 to 3 to prove the adoption, by exhibiting Ex. A.4 adoption deed. They have also stated that ceremonies were performed in pursuance of the same. Two weeks thereafter with the help of Ayyar and the same has not been challenged. On the other hand, questions were put in cross-examination in such a way that though there is adoption, P.W 1 had no authority to adopt and that the adoption has been done only to defeat the right of the defendant. Though P.Ws 1 and 2 have spoken about the ceremonies and the details of the adoption, not even a suggestion was put challenging the same. It was not even suggested that no such ceremony was conducted as spoken to by them. As such, the trial court proceed on the basis of this evidence and observed that the fact of adoption is spoken to by P.Ws 1 to 3 and there is no contra evidence on the side of the defendant. Giving and taking adoption is proved. Having not disputed the evidence of P.Ws 1 and 2 before the court below, it is not open to the appellant to contend before this court that the plaintiff has not established the adoption by examining the other witnesses who were present at the time of the ceremony and also examining the poosari who has performed the homam and in view of non-examination, it cannot be said that the adoption has been established. On a careful reading of the evidence of P.Ws 1 and 2 and Ex. A.4, we have no hesitation in holding that the plaintiff has established the adoption by means of a registered deed as well as by means of oral evidence regading the ceremonies. Even in cross-examination D.W 1 has stated that he was not invited for the ceremonies relating to the adoption and he did not know about the talks of adoption. He would state that he filed an application before the Commissioner for declaring him as hereditary trustee, before the adoption of the plaintiff. These answers also suggest that the defendant did not dispute the adoption; but would only state that he was not invited for the adoption ceremony and that before the adoption, he has filed the petition before the Deputy Commissioner to declare him as hereditary trustee.

13. The decision relied on by the learned counsel for the appellant in Rahasa Pandiani v. Gokulanda Panda (A.I.R 1987 SC. 962) is not at all helpful to the case of the appellant. It was held in the above quoted case.

“In the instant case the factum of adoption of second son of the natural father was in dispute. There was no registered document executed in proof of the adoption in question. On the other hand there was evidence though he natural father of adoptee had earlier given his eldest son in adoption by a registered document to person other than the adoptive mother in the instant case. The alleged adoptive mother had also earlier resorted to adoption of a different person by a registered document.

Held that the absence of registered document was a very important circumstace to disprove the alleged adoption in the instant case. The priest or the persons alleged to be present at the adoption ceremony were not examined.

There was also no evidence of change of name of the alleged adopted son nor any evidence of any neighbour that the son was living with the adoptive mother. Hence it could not be said that factum of adoption was established.”

In the above quoted decision, it was in evidence that in respect of adoption in the families of the adoptive mother as well as the natural father on an earlier occasion, there was evidence of adoption by registered document. But, in the decision cited above, that it is in the subject matter of the above decision, there is no such registered document and there was no acceptable reason as to why the document was not executed. In the absence of registered document and in the absence of oral evidence worth the name adduced to prove the adoption and in view of other various suspicious circumstances, it was held that the adoption Was not established. But in the instant case we have registered document Ex. A.4 and it is corroborated by the evidence of adoptive mother as well as the natural father and mother. Their evidence has not been challenged with regard to adoption. It cannot be said that the plaintiff has not established the adoption by not examining the other person who were present and the poosari who performed the adoption. Under S. 16 of the Hindu Adoptions and Maintenance Act, 1956, it is provided that whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. The conditions for valid adoption as per S. 11 of the Hindu Adoptions and Maintenance Act have been complied with. Hence we have no hesitation in holding that there is valid adoption of the plaintiff by P.W 1 in the instant case.

14. As regards the contention that P.W 1 has no authority to adopt and even if there is adoption, in view of the divesting of the right prior to the adoption in favour of the defendant, the plaintiff is not entitled the relief prayed for. The learned counsel for the respondent drew our attention to the decision of the Supreme Court in D.S Agalawe v. P.M Agalawe (A.I.R 1988 S.C 845) where was held:—

“A person adopted by a Hindu widow after the coming into force of the Hindu Adoptions and Maintenance Act, 1956 can claim a share in the property which had devolved on a sole surviving coparcener on the death of the husband of the widow who took him to adoption. Consequently, the adopted son and the widow adopting him can file a suit for partition against the person who was the sole surviving coparcener before adoption. Proviso(c) to S. 12 is no bar to such suit, since no question of divesting the sole coparcener of his estate is involved”

In that case, the decision in (1964) I Andh W.R 15 was overruled, A.I.R 1987 S.C 398 approved and A.I.R 1970 S.C 343 relied on. It is clear from the above decision that a widow is entitled to adopt, that S. 12(c) is not attracted in this case and that the adopted son can claim partition against the person who is the sole surviving coparcener before adoption. As regards the question of divesting any person of any estate vested in him under S. 12(c) the court below has rightly considered the Full Bench decision of this court in Manathunainatha Desikar v. Sundaralingam (1970-II M.L.J 156 = 83 L.W 640) and held that the office of the management of the trust is not movable or immovable property or right to property and as such the question of divesting of any person of any estate vested on him before adoption does not arise. The learned counsel for the appellant did not seriously dispute this finding by the trial court. Even otherwise, in view of the decision of the Supreme Court quoted above, such a contention is not tenable. For the foregoing reasons, we have no hesitation in answering the first question against the appellant and in favour of the respondent.

15. Now, as regards the question of limitation, it is submitted by the learned counsel for the appellant that though this question has not been specifically raised before the trial court, this being the question of law, he is entitled to raise the same and submitted that under Article 104 of the Limitation Act, the period of limitation to establish a periodically recurring right is only 3 years and in the instant case the adoption deed came into existence in 1976 and the plaintiff filed the suit in 1981 and even when the adoption deed cameinto force, the defendant has filed a petition to declare him as sole hereditary trustee and as such, on the date of adoption the plaintiff was refused enjoyment of right and since the suit has not been filed within three years, it is barred by limitation.

16. On the other hand, the learned counsel for the respondent submitted that the relevant provision applicable is Article 107 which deals with possession of hereditary office and the period of limitation commences when the defendant takes possession of the office adversely to the plaintiff and the period prescribed is 12 years. The earned counsel for the respondent submitted that in the instant case the plaintiff filed O.A No. 112 of 1977 under S. 63(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, to declare him as hereditary trustee of the trust and the said application was dismissed as infructuous on 29.9.1980 in view of the order passed by the commissioner on 19.8.1980 in A.P No. 159 of 1978 dismissing the appeal and confirming the order of the Deputy Commissioner in O.A 74 of 1976. A.P No. 159 of 1978 was the one filed by the plaintiff challenging the order passed in O.A No. 74 of 1986 in favour of the defendant and the same was also disposed of on 19.8.1980 as is evidenced by Exs. A.2 and A.6 The present suit which is now under appeal, was filed on 3.2.1981 while A.3 order was in 1980. So within 3 years the plaintiff has taken proceeding against the defendant to establish his right. The plaintiff has asked for possession of the hereditary office as per the original will in the place of Sivasubramania Pillai for performing the charities once in six months. If that is so, the relevant provision is Article 107 of the Limitation Act. Even otherwise, Article 104 would apply and the suit is within time even though such contention was not raised in the court below.

17. In Vedavyasa Alasinga Bhattar v. Vedavyasa Venkatasudarsana Bhattar (1956-2-M.L.J 424 at 425 = 432 L.W 614) it was observed:—

“Thus it will be seen that the principle of partition is permitted on the ground that the usage which sanctions it is wholesome for the efficient and smooth discharge of the duties of the office, where the office being hereditary in the family devolves on a number of co-trustees. So far as the trust is concerned, whoever manages the office by turns must be deemed to be managing on behalf of ail the management by one of them in rotation is not considered to be advertse exclusive to other cotrustees”.

At page 432, it was observed:—

“In every case of partition where several branches enjoy the office by turns there is no surrender or renunciation. It is always subject to the implied condition that the resumption of actual management can be availed of either by consent of parties or through court and there is no question of divesting themselves of all control over the offices”.

18. With regard to prescription, the court below has rightly negatived the case of the defendant in view of the evidence of P.W 1 and the admission made by the defendant. D.W 1 has categorically stated that the lessees of the suit properties were paying half of the income to P.W 1 and another half to him after the death of Sivasubramania Pillai and they used to give separate receipts and also pay kist separately. P.W 1 has also categorically stated that after the death of her husband, she was exercising the right and has been performing charities in turn along with the defendant as per Will P.W 4 is a witness who has corroborated the evidence of P.W 1 with regard to the conduct of charities of Karthigai Kattalai alternatively and his participation in taking food in chatram. The said finding is perfectly legal and correct and based on evidence and admission of the defendant. Hence, there is nothing to interfere with the same. Point No. 2 is also answered against the appellant and in favour of the respondent. No other contention is put forth before this court. In view of the findings on points 1 and 2, the appeal has to be dismissed.

19. In the result, the judgment and decree passed by the court below are hereby confirmed and this appeal fails and stands dismissed. However, in the circumstances of the case, there will be no order as to costs.

KA/RR/VCS