Picha Pillai vs Kathaperumal Pillai and Others

Lakshmana Rao, J.—The appellant is the undivided son of the third respondent and the suit out of which this second appeal arises was

instituted by him for a declaration that two gift deeds executed by the third respondent in favour of his nephew, the first respondent, are not valid

and recovery of the properties gifted with past and future mesne profits. The second respondent is the father of the first respondent and their case

was that the gift deeds were executed for their joint benefit though they were taken in the name of the first respondent. The gift deeds would

undisputedly be void as held by the lower Courts if the properties dealt with are the family properties of the appellant and the third respondent and

the properties would be family properties if the third respondent was adopted by his maternal uncle Narayana Pillai. No doubt the onus of proving

the adoption is initially on the party asserting it, but as pointed out by the Privy Council in Chandra Kunwar v. Narpat Singh (1907) 29 All. 184

proof of admissions by the opposite party shifts the onus, on the principle that what a party himself admits to be true may reasonably be presumed

to be true and until the presumption is rebutted the fact admitted must be taken to be established. The adoption of the third respondent is

mentioned in Exs. B, C, C-1, K, L-1, and L-3, the documents to which the second respondent is a party, and he is described as the adopted son

of Narayana Pillai even in Exs. P and Q, the gift deeds in question. It is not suggested that there was any need or occasion to describe him as such

if he was not the adopted son of Narayana Pillai and in the absence of any attempt at explanation the adoption must be taken to have been

established. It follows therefore that the properties are the family properties and as pointed out in Rottala Ranganatham Chetty v. P. Ramaswami

Chetti (1904) 27 Mad. 162 the gifts are void in toto. That being so, the appellant is entitled to recover the properties : vide Ramanna v. Venkata

(1883) 11 Mad. 246, and the view of the Subordinate Judge that he can recover only his share in a properly framed suit for partition is untenable.

There are no equities to be adjusted and the appellant) is entitled to a decree for possession with mesne profits at Rs. 150 per annum from 26th

January 1924. The decrees of the lower Court will therefore be modified and there will be a decree in favour of the appellant for possession of the

suit properties also, with mesna profits at Ea. 150 per annum from 26th January 1924 till delivery of possession or three years from this date, with

costs throughout.