Radhakrishna Mudaliar vs Chinnammal and Others

Sengottuvelan, J.—This second appeal is filed by the appellant, who is the second defendant in the suit O.S. No. 14 of 1973 on the file of

the District Munsif''s Court, Arni, challenging the legality and correctness of the judgment of the Subordinate Judge, Vellore, in A.S. No.155 of

1976. The brief facts of the case are: The appellant/second defendant is the son of one Sundaresa Mudaliar, who is the second respondent herein

and first defendant in the suit. The plaintiff is the first respondent herein, and she is the sister of one Natesa Mudaliar and the second respondent

Sundaresa Mudaliar. Natesa Mudaliar and Sundaresa Mudaliar, the second respondent herein, are brothers. According to the appellant, he was

given away in adoption by Sundaresa Mudaliar to his brother Natesa Mudaliar. On that basis, the appellant herein resisted the claim of the first

respondent, who is the sister of Natesa Mudaliar, for partition of her one-half share on the death of Natesa Mudaliar; the other half share being

succeeded by the second respondent. The trial court found that the appellant failed to prove that he is the adopted son of late Natesa Mudaliar and

therefore, decreed the suit for partition of one-half share filed by first respondent herein. As against the judgment, the appellant herein filed

A.S.No. 383 of 1975 on the file of the District Court, North Arcot at Vellore, which was transferred to the Subordinate Judge of Vellore and

numbered as A.S.No.155 of 1976, The learned Subordinate Judge, on a consideration of the oral and documentary evidence, affirmed the finding

of the trial court negativing the case of adoption set up by the appellant but at the same time found that the appellant is entitled to recover one-half

of the amount which the appellant had parted with for redeeming the property and taking steps to set aside the sale of the suit property by a

mortgagee in O.S.No.295 of 1964 on the file of the District Munsif''s Court Arni. This second appeal is filed challenging the legality and

correctness of the judgment of the appellate court.

Mr. M.N.Padmanabhan, learned counsel for the appellant, has raised two contentions in support of his argument that the judgment and decree

of the appellate court are not sustainable. They are:

i) The appellate Court''s finding on the basis of the oral and documentary evidence regarding adoption is not sustainable.

ii) In any event, the appellant by redeeming the earlier mortgage is subrogated to the rights of the mortgagee under S. 92 of the Transfer of

Property Act and as such the lower court erred in simply stating that the appellant is entitled to recover one half share.

In so far as the first contention is concerned, the learned counsel drew my attention to the evidence of D.Ws.1 to 3 who speak about the giving

away of the appellant in adoption by his father, Sundaresa Mudaliar, the second respondent herein, to his brother Natesa Mudaliar even when he

was alive. But the evidence of these witnesses will have to be taken in the light of the other documentary evidence and the circumstances of the

case. All the documents to which the appellant was party, including his marriage invitation, do not refer the appellant as the adopted son of Natesa

Mudaliar, but on the other hand refers to him as the son of Sundaresa Mudaliar. This circumstance alone reduces the probative value of the

evidence of D.Ws,1 to 3 to almost zero. Learned counsel cited the decision in Kanthammal v. Bysani Sriramulu Ckelti 100 L.W. 71. wherein

Srinivasan, J. observed that in cases of ancient adoption documentary evidence may not be available. In the instant case, there is no dearth of

documents. All the available documents point to the contra and in none of them the appellant is shown as the adopted son of Natesa Mudaliar. The

decision cited, therefore, has no bearing to facts of this case. In view of the overwhelming documentary evidence pointing contra, D. Ws 1 to 3

cannot carry conviction and the conclusion of both the Courts below in this regard is correct. My attention has been invited to Ex. A-5, printed

judgment in O.E. A. No.17 of 1972 O.E.P.No.645 of 1971 in O.S. No.276 of 1970, in which the learned District Munsif observes, after

negativing the case of adoption set up, that the learned counsel for respondents contended that the first petitioner is not the defendant in the suit but

it may be true that he is the adopted son of Natesa Mudaliar. The learned District Munsif, Ami, while negativing the case of adoption set out in the

earlier portion of the order, made the above observation which will only have the effect of an obiter and in any event it cannot have the status of a

finding rendered in a civil suit. Under the circumstances, the finding of question of fact by both the Courts below that the appellant cannot be the

adopted son of late Natesa Mudaliar is correct and no interference is called for.

The second contention is that in any event the lower appellate court having observed that the first respondent is liable to contribute one-half

share of the amount parted with by the appellant for setting aside the sale and redeeming the suit property as per Ex. A-5, ought to have also

observed that the appellant is subrogated to the rights of the mortgagee in the earlier mortgage. A perusal of the judgment of the appellate Court

shows that the appellate Court has only declared the rights of the appellant and his father Sundaresa Mudaliar to the half share of the amount. The

incidence of S. 92 of the Transfer of Property Act in a case like this has not been properly understood by the appellate Court, since Sundaresa

Mudaliar, the second respondent in this appeal, is one of the heirs of the mortgagors and as such the discharge of the entire mortgage by him will

only result in his being subrogated to the rights of the mortgagee. Under the circumstances, instead of simply stating that the second respondent and

the appellant are bound to share the amount paid for redeeming the mortgage, the proper form of declaring the rights of parties will be to say that

the second respondent herein will be subrogated to the rights of the mortgagee in respect of the redemption as per Ex. B1, certified copy of

judgment in C.M.A.No.126 of 1973 on the file of the District Court, Vellore. The judgment of the appellate court has to be modified accordingly.

In the result, the concurrent finding of both the Courts below on the question of adoption is upheld. The decree for partition and possession of one-

half share in respect of first respondent also is confirmed and at the same time it is declared that the first respondent is subrogated to the rights of

the mortgagee, the plaintiff in O.S.No.276 of 1970 on the file of the District Munsif''s Court Arni. The second appeal is accordingly allowed in

part. There will be no order a to costs.