JUDGMENT
Srinivasan, J.
1. Though the question involved-in the appeal has turned out to be one within a narrow cumpass, the litigation has had a chequered career spreading over a period of 16 years, the seeds whereof were sown even 12 years prior to its commencement.
2. The suit properties admittedly belonged to Bysani Markandayalu Chetti, who died on 26th October, 193, leaving his widow Kamaiammal, who died on 16th September, 1969. The plaintiff claims to be an adopted daughter of the said Markandeyalu Chetti, whereas the defendant claims to be his adopted son. The defendant’s adoption is said to have taken place two months prior to the death of Markandeyalu Chetti. Soon after the death of Markandeyalu Chetti, there were suit between the defendant and Kamaiammal which ended ultimately in a compromise by which the properties were divided among the two. The present suit properties fell to the share of Kamaiammal. After her death, the plaintiff claiming to have perfected her title by continuous possession and enjoyment of the suit properties, has filed the present suit for declaration that she is in possession of the properties and for a permanent injunction restraining the defendant from interfering with her possession. Though originally the plaint contained several allegations regarding the status of the defendant, they were later deleted and the amended plaint as it stands, now, does not make any reference to the claim of the defendant as the adopted son of Markandeyalu Chetti but merely describes the defendant as a third party who can have no manner of claim over the suit properties. Curiously, a recital is found in paragraph 5 of the plaint, that the defendant had lost all his rights to make claims to the suit properties by reason of the plaintiff’s continuous and uninterrupted possession and enjoyment of the same. The suit was filed on 19th August, 1970, within a year after the death of Kamaiammal, widow of Markandeyalu Chetti. The plaintiff does not make it clear as to how the plaintiff claims to have perfected her title by continuous possession and enjoyment of the suit properties within a period of one year from the date of the death of Kamaiammal. It is nowhere stated in the plaint that the plaintiff was the only heir to Markandeyalu Chetti and that on the death of Markandeyalu Chetti, Kamaiammal was not entitled to succeed to the estate of Markandeyalu Chetti. On the other had, there is an express averment in paragraph-3 of the plaint that Kamaiammal and the plaintiff succeeded to the estate of Markandeyalu Chetti, each getting an equal share therein. Whatever might be the basis of the claim of title on the part of the plaintiff, the relief that she had prayed for in the plaint was only one of declaration of her possession and injunction against the defendant.
3. The defendant contended in his written statement that the plaintiff was not the adopted daughter of Markandeyalu Chetti or Kamalammal and on the other hand, he was adopted by Markandeyalu Chetti on 16th August, 1937. The defendant also referred to a registered deed of adoption of even date and claimed that on the death of Markandeyalu Chetti, himself and Kamalammal, became entitled to the estate and after the death of Kamalammal he was exclusively entitled to all the properties. It was also contended by him that in the suit between him and Kamalammal, his right as adopted son was upheld and that the present suit properties were allotted to Kamalammal for her enjoyment. The written statement also made a reference to a suit filed by Kamalammal in 1958 as against the present plaintiff wherein a decree was passed against the plaintiff herein for delivery of possession of the suit properties to Kamalammal. The plaintiff filed a reply statement denying the averments in the written statement.
4. The trial Court by its judgment dated 9th January, 1975 negatived the claim of the plaintiff that she was the adopted daughter of Markandeyalu Chetti and found that the defendant was the adopted son of Markandeyalu Chetti and his wife Kamalammal. In view of the said findings, the trial Court held that the plaintiff was not entitled to get the relief of injunction as against the defendant, who was the lawful owner and dismissed the suit.
5. On appeal by the plaintiff the judgment of the trial court was confirmed by the Second Additional Judge, City Civil Court, Madras, but dealt with question of adoption of the defendant and upheld the same. In the course of his judgment, the learned appellate judge commented upon the failure of the plaintiff to seek a declaration of her title to the suit properties, when the defendant had clearly repudiated the same in his reply notice prior to the suit.
6. Aggrieved by the dismissal of the appeal, the plaintiff filed S.A. 2522 of 1977 in this Court and during the pendency of the. same, filed an application in C.M.P. 4584 of 1980 for amending the plaint. The second appeal was disposed by Mr. Justice Sethuraman by his judgment, dated 9th February, 1981. The relevant portion of his judgment reads as follows:
“Learned Counsel for the appellant brought to my notice the finding of the appellate Judge, which is in agreement with that of the trial court, that the plaintiff was in possession of the property. He submitted that a suit for injunction could be maintained on the basis of possessory title. In the present case, it appears that the defendant had been found to have title to the suit property in the earlier proceedings, whether the defendant has title or not is not really relevant. The plaintiff has to prove her case. The suit should have been for a relief of declaration and injunction. It appears that the plaintiff claims title. to the suit properties by adverse possession also. In these circumstances, the ends of justice would be better served by sending the matter back to the lower appellate court to go into the question of possessor, or other title. It would not be proper to dismiss the suit without even giving an opportunity to the plaintiff to ask for the proper relief, especially when there is the finding that the plaintiff is in possession of the property.
The judgment of the Court below is accordingly set aside and the matter is remanded to the lower appellate Court for going into the question of possessory title of the plaintiff.
C.M.P. 4584 of 1980 has been filed by the plaintiff in this Court for amendment of the plaint. It will be sent along with the records to the lower appellate court for appropriate consideration and disposal. In the result, the appeal is allowed and the matter is remanded as indicated above.
After remand, the plaintiff filed three documents as additional evidence in the appeal before the lower appellate Court, which are marked as Ex. A22 to A24, but did not choose to press the application for amendment and allowed it to be dismissed as not pressed. The learned appellate Judge framed the point for consideration as follows:
Whether the appellant has got possessory or other title of the schedule properties to claim injunction against the respondent, restraining him from interfering with her possession and enjoyment Of the schedule properties?
The learned appellate Judge held that the plaintiff was in possession and enjoyment of schedule 1 item over which she had no right or title and over which the deceased Kamalammal had right and title. The learned appellate Judge has also found that the plaintiff has not let in any evidence to substantiate her case of adverse possession. Ultimately, the learned Judge held that the plaintiff had miserably failed to prove her possessory or other title over the schedule property and her possession of the schedule property was not lawful and the same could not be protected against the respondent and consequently dismissed the appeal.
7. It is against the said judgment and decree, the present second appeal has been filed. Though four substantial questions of law have been framed at the time of admission, learned senior Counsel appearing for the appellant argued before me only one question. It was urged by the learned senior Counsel that the lower appellate Court was wrong in placing reliance upon the decision in C.S. 225 of 193 7 and C.S. 16 of 1958 when the judgments and decrees therein have not been exhibited in the present case. Learned senior Counsel contended that the lower appellate Court has proceeded on an assumption that the adoption set up by the defendant was already upheld in prior proceedings and that the said assumption is incorrect and the lower appellate Court was wrong in refusing to grant a decree in favour of the plaintiff on the basis of her possession. Learned Counsel also submitted that the finding that the plaintiff was in possession of schedule first item only was wrong in view of Ex. A20 notice issued on behalf of the defendant to the plaintiff as early as in October, 1969, calling upon her to desist from collecting the rents from both the suit properties. Learned Counsel submitted that in the present proceedings, the only course open to the Court is to grant a decree in favour of the plaintiff as prayed for by her, leaving the defendant to establish his title if any, in separate proceedings.
8. In answer to the above contentions, learned senior Counsel for the respondent contended that the scope of the Order of remand made by this Court was a limited one and that the only question which was directed to be considered by the lower appellate Court was one of possessory title of the plaintiff. In other words, it was contended by the Learned Counsel that the finding of the lower appellate Court on the prior occasion upholding the adoption of the defendant was not disturbed by the Order of remand and the limited purpose of the remand was to enable the plaintiff to amend the plaint by including a prayer for declaration of her title and to prove the same. It was contended that inasmuch as the plaintiff failed to amend the plaint and chose to rest her case merely on possession, she is not entitled to claim the relief of injunction as against the defendant, who is found to be the adopted son of Markandeyalu Chetti. Alternatively, Learned Counsel contended that if the remand Order has to be construed as one setting aside the entire judgment and decree of the lower appellate Court and directing the rehearing of the entire appeal afresh, the lower appellate Court not having gone into the question of adoption, it is open to this Court to exercise its powers under Sections 103 and 107 C.P.C. and determine the question of adoption on the evidence available on record. Learned Counsel submitted that in view of the fact that the litigation had already been a prolonged one, this Court should decide the matter here itself without sending it back to the lower appellate Court for considering the question of adoption. Learned Counsel submitted that the evidence on record is sufficient to prove the adoption of the defendant. Lastly it was contended by the Learned Counsel for the respondents that even if the adoption of the defendant is not proved, the plaintiff’s suit has to fail as she has not proved her title on which she has rested, her claim of possession and as the defendant being the son of Markandeyalu Chetti’s brother is the legal heir entitled to the estate against whom the plaintiff cannot get the relief on injunction.
9. On a reading of the Order of remand made by this Court in S.A. 2522 of 1977, it is clear that the entire judgment and decree of the lower appellate Court were set aside and the appeal was directed to be disposed of afresh by the lower appellate Court. There is no question of any of the findings given by the lower appellate court on the prior occasion being confirmed in the Order of remand. No doubt, the purpose of the Order of remand was that the plaintiff should be given an opportunity to amend her plaint and prove her possessory title to the properties, but the Order as such set aside the entire decree and judgment of the lower appellate court. The contention of the Learned Counsel for the respondent that the scope of the remand was very limited cannot be accepted.
10. I agree with Learned Counsel for the appellant that the lower appellate court is wrong in assuming that the adoption of the defendant was upheld in C.S. 225 of 1937 and C.S. 25 of 1938 Bysani Sriramulu Chetti v. Bysani Kamalammal, when the judgment and decree therein has not been exhibited in the present case. The lower appellate Court has also erred in making reference to the alleged findings in C.S. 16 of 1958 and O.S.A. 25 of 1965. Again, the lower appellate Court has gone wrong in holding that the plaintiff’ is in possession of schedule I item only, overlooking the contents of Ex. A20. It is admitted by both sides that the properties are in the actual possession of the tenants and the parties herein claim to be in enjoyment only by collecting the rents. In view of the specific averments in Ex. A20, there can be no doubt, that the plaintiff was in possession of the entire suit properties.
11. The mere fact that the plaintiff is in possession of the suit property will not enable her to get a decree for injunction as against the defendant. Learned Counsel for the appellant relies upon a passage in Sethna’s Law of Jurisprudence, 1959 Edn. at page 452, which reads as follows:.
The value of possession cannot be over-emphasied. Any person who finds goods belonging to another may keep them as against the whole world except the true owner and the previous possessors of the goods Armory v. Delamiri 1 Smith’s Leading Cases 301. Alike in Roman and in the Common Law a mere finder, or even a wrongful taker, has a possession which will be protected against a stranger, nor will such a stranger be allowed to allege a superior jus tertii unless he can show that he was acting under the authority of a person having such a weight”. Holland: Jurisprudence 13th Edn. page 204 and 205.
Under the German and Italian Civil Codes, the right of possession exists even in the case of possession that is wrongful as against the owner of the property; under these Codes possession is recognised even as a provisional or temporary title against the true owner; and even the true owner cannot claim back the property summarily or by force, for otherwise there may be a breach of the peace. The same principle, has under the Specific Relief Act, been followed in India. The law requires that the true owner should bring an action at law for the restitution of his right of possession. If this is not done, i.e., if possession is forcibly recovered, the person dispossessed has a remedy to regain his possession; that remedy is called a possessory remedy. But the owner also has his remedy against the wrongful possessor, and that is called a proprietry remedy; Possessadorium, i.e., a possessory right is a possessory remedy, and petitorium, that is a proprietry suit, is the remedy for the disturbance of proprietary right.
The recognition of possessory right is strong indeed in respect of lands and buildings, but it is not so strong in respect of chattels; whereas a forcible re-entry on land is not legally allowed, it appears that a forcible re-taking of chattels is allowed under the law. In all cases the test is whether a recapture of possession can be had peacefully or not. Wherever the exercise of an. extra-judicial remedy, i.e., self-help is capable of leading to violence it should not be exercised; and for the preservation of the peace it is necessary to have recourse to law alone.
Possession, again is a valuable piece of evidence of ownership. With regard to the ownership of chattels, it may be difficult to prove the existence of ownership. Possession, then is a very valuable piece of evidence to satisfy the Court that the possessor is also the owner. Possession is prima facie proof of title. Moreover even in respect of possession, the first in possession will be preferred to the second in possession, and the second to the third, unless the possessor who is later in time proves that he has a better title than the earlier possessors. In the absence of such proof the court will presume that the earlier in time is the earlier and stronger in legal right not only of possession but also of ownership. It may also be noted that the defendant in a suit for possession will not be allowed to plead-the jus tertiii, i.e., the right of a third person, for, it is really for the third person to claim his right; it is not for the defendant to plead that the property really belongs to the third party, if be himself has no right to it, unless he shows that he is defending the suit under the authority of the third party or that the possession that he had taken was taken at the desire of the third party or that he has already returned the property to the third party.
Reliance was also placed upon the decisions in Nair Service Society v. Alexander A.I.R. 1968 S.C.I 165., Ponnusami v. Pattammal Annachatram A.I.R. 1958 Mad.497. and Mariumbi v. Yeshwanta . It is contended by Learned Counsel for the appellant that a person in possession is entitled to keep out the rest of the world from interfering with his possession. I am afraid the proposition of law put forward by Learned Counsel for the appellant is not supported by the decisions referred to by him as well as the passage in Sethna’s Law of Jurisprudence. It is no doubt true that Section person in possession can resist the whole world, but the exception is the true owner. A person in possession without any title cannot get any relief against a person who has got a better title. This is made clear by the Supreme Court in Nair Services Society v. Alexander . While pointing out the distinction between a suit under S.9 of the Specific Relief Act and a suit upon possession alone, filed after the period specified in S.9 of the Specific Relief Act, the Supreme Court observes thus:
The uniform view of the Court is that if Section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When however the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is restricted to possession only in a suit under Section 9 of the Specific Relief Act, but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one.
12. In the present case, the defendant has set up title in himself as adopted son of Markendayalu. Hence, the question whether the defendant is the adopted son of Markandeyalu or not has to be considered before any relief could be granted to the plaintiff. Inasmuch as the lower appellate court has not considered that question and given any finding it has become necessary for this Court to invoke the aid of Section 103, C.P.C. and decide the question on the basis of the evidence already on record. As submitted by the Learned Counsel for the respondents, the litigation having had a long innings already, I do not want to prolong it further by remanding it to the lower appellate Court or calling for any finding, as in my view, the evidence on record is sufficient to decide the question.
13. As pointed out already, the plaint as it stands today, does not make any reference to the claim of adoption made by the defendant, but merely characterises the defendant as a third party, The defendant, who has pleaded specifically about his adoption by Markandeyalu, has to prove the same. During chief examination of the defendant, he states that ‘ he is the adopted son of Bysani Markandeyalu Chetti. He refers to the deed of adoption which is marked as Ex. B4. He has also referred to the power of attorney given by Kamalammal appointing him as her agent and the said power of attorney is marked as Ex. B5. Significantly, there was no question whatever in the cross-examination of the defendant with regard to his adoption. The examination of the defendant was over on 21.12.1974. But, on 6-1-1975, he is recalled and further examined. The record of the deposition does not show whether he was further cross-examined by counsel for the, defendant. The record merely reads witness recalled, sworn and further cross-examined on 6.11.19 75. The answers recorded would lead to the inference that the defendant was really further cross-examined by counsel for the plaintiff. The very last answer recorded is as follows : ‘It is wrong to say that I am not the adopted son’. Thus, it appears that the only question put to the defendant is in the form of a denial of his status as adopted son. Apart from that there is absolutely no suggestion whatever in the cross-examination against the genuineness of the deed of adoption or the power of attorney executed by Kamalammal.
14. As regards the plaintiff, she has stated in the cross-examination that she did not know about the adoption of the defendant by Markendayalu. Ex. B4, the deed of adoption contains recitals to the effect that there was a ceremony of adoption performed on the date of the document in the presence of relations and kinsmen. The relevant recitals read thus-
Whereas the said Bysani Markandeyalu Chetti is possessed of valuable movable and immovable properties all of which were acquired by him by his own exertions; without any nucleus of ancestral property and whereas the said Bysani Markandeyalu, Chetti is anxious to take a son in adoption and has requested his brother Bysani Krishnaiya Chetti to give his son Bysani Sriramulu aged 16 years in adoption and the said Bysani Krishnaya Chetti agreed to give his son the said Bysani Sriramulu in adoption and whereas the ceremony of adoption of the said Bysani Sriramulu as the son of Bysani Markandeya Chetti has been performed this day in the presence of relations and kinsmen….
In the power of attorney executed by Kamalammal which is marked as Ex. B5, the following recital is found:
I hereby appoint one Bysani Sriramulu Chetti, adopted son of Bysani Markandeyalu Chetti.
There is no dispute with regard to the genuineness ‘ of these two documents.
15. Learned Counsel for the respondents drew my attention to the decision in Karuppana Gounder v. Kolandasami Gounder , in which it has been laid down that in the case of registration copies, the production of such copies without any further oral evidence would be enough to show what the, original documents contained, Learned Counsel for the respondents referred to the decision in Nagayasami v. Kochadi (1920) 1 M.L.J. 150 : I.L.R. (1969) 1 Mad. 459 : 81 L.W. 436 : A.I.R. 1969 Mad. 329 and Debi Prasad v. Tribeni Devi , with regard to the proof of adoption. In the former case, a Division Bench of this Court has point out that:
The burden of proving an adoption is a very grave and serious one, as an adoption displaces the natural succession.
Reliance is placed upon the observation that:
A contemporaneous deed of adoption coming into existence at the same time as the adoption took place, would no doubt, be strong, cogent evidence.
The Division Bench has also pointed out that:
Conduct evidence of the members of the family acknowledging and treating the person concerned as an adopted son would be useful evidence.
In the latter case, the Supreme Court has laid down that:
In the case of an ancient adoption, evidence showing that the boy was treated by relations for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking i£ not forthcoming.
16. Learned Counsel for the appellant contends that a person who sets up an adoption must establish the same by clear and acceptable evidence and he should also prove not only the factum of adoption but the performance of the necessary ceremonies including the giving and taking. Reliance is placed upon some passages in Mayne’s Hindu Law, 12th Edn., in paragraphs 193 and 231, which read thus:
193. The texts of Vasishta, Baudhayana and Saunaka already referred to outline the ritual in connection with adoption. The Dattaka Mimamsa and the Dattaka Chandrika give an enlarged account of it. In all these, stress is laid upon the gift and acceptance of the boy taken in adoption. Baudhayana says ‘One should go to the giver of the child, and ask him, saying Give me thy son’. The other answers ‘I give him’. He receives him with these words ‘I take thee for the fulfilment of my religious duties. I take thee to continue the line of my ancestors.” The giving and receiving 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 into another Mahashaya Shasinath v. Sermathi Krishna (1881) : I.A. 250 : I.L.R. 6. Cal. 381. The physical act of giving and taking must be proved even if there is expression of consent and a deed of adoption. The evidence must be free of suspicion and fraud. Madhusudan Das v. Narayanibai . But the Hindu Law does not require that there shall be any particular form so far 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. Muthuvayyangar v. Thiruvengadammal (1942) 1 M.L.J. 285 : 55 L.W. 132 : I.L.R. (1942) Mad. 682. A.I.R. 1942 Mad. 395. Where this part was performed by the widow, a girl of fifteen who had just lost her husband, it was held to be no objection to the adoption that she remained in an inner room, and deputed a relation to perform the homam and other parts of the religious ceremony, Lakshmibai v. Ramachandra I.L.R. (1898) 22 Bom. 590, and even the physical act of giving away or of accepting the boy in adoption, may be similarly delegated by a person who would be entitled to perform the act himself Shamsingh v. Santebai I.L.R. (1901) 25 Bom. 551. Even in cases where giving and receiving is sufficient, there must be an actual gift and acceptance of the boy in adoption Ramnath Kishanlal v. Ramgopal Bhanlal A.I.R. 951 Nag. 434. A mere execution of a will or deed of adoption or oral declaration of intention will not be sufficient to constitute’ a valid adoption Sreenarain Mitter v. Sreemutty Kishen (1869) 2 V.L.R. (ACJ) 279).
231. There is no particular kind of evidence required to prove an adoption. Those who rely on it must establish it like any other fact, whether they are plaintiffs or defendants Muthusami v. Chidambaram (1949) 75 I.A. 293 : (1948) 2 M.L.J. 468. 61 L.W.749 : I.L.R. (1949) Mad. 604 : A.I.R. 1949 P.C. 18. Any person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and the performance of any necessary ceremonies as well as all such facts as are necessary to constitute a valid adoption. Haribhav v. Ajabrao Ramji Ingale Kumbi I.L.R. (1946) Nag. 9 78. Failure to produce account books in the families belonging to commercial communities would be a very suspicious circumstance against the truth of the adoption Kishorilal v. Chalitraj . Though normally the burden is on the person who asserts that he is the adopted son an admission of the widow that she adopted the plaintiff shifts the onus on to her on the principle that what a party himself admits to be true may reasonably be presumed to be So.. Until this presumption is rebutted the fact admitted be taken to be true Veeraraghava Reddy v. Kamalammal . Where the adoption is by a widow her authority to adopt must also be proved, Devi Bahadur Singh v. Bijai Bahadur Singh (1930) 57 I.A. 14 : 58 M.L.J. 446. No writing is necessary; though, of course, in case of large properties, or of. a person of high position, the absence of a writing would be a circumstance which would call for strict scrutiny and for strong evidence of the actual fact Diwakar Rao v. Chadalal Rao L.R. (1917) 44 Cal. 301 (P.C). Though the widow went through the ceremonies and made a recital in the adoption that her husband expressed a desire that she should adopt, it was held that these circumstances were not sufficient to establish the giving of authority to her by her husband Shanti Bai v. Migger Devi . Though there was a deed of adoption containing a bald statement that the adaptor had taken the adoptee in adoption without the names of the persons present at the time of adoption, where it took place, whether necessary ceremonies were performed, the adoption was held to be invalid as the adopter could not be said to be in a fit state of mind to execute the adoption deed and doctor’s evidence also cast a cloud on the adopter’s state of mind Madhanlal v. Gopi . A statement in a will that the first defendant was his adopted son need not be regarded as conclusive proof though it may be considered as a piece of evidence, Bangerilal v. Trilokchand . It is not necessary in all these cases to produce direct evidence of the fact of the adoption; where it took place long ago and where the adopted son has been treated as such by the members of the family and in public transactions, every presumption will be made that every circumstance has taken place which is necessary to account for such a state of things as is proved, or admittedly exists. Devi Prasad v. Triveni Devi . Where an adoptive father signed the declaration in the admission form in the school that the boy was his adopted son, it is sufficient proof of adoption and it is binding on the persons claiming through the adopter if the adoption is challenged after a long time Umesh Bhagat v. Ramkumari Devi A.I.R. 1963 Patna 362. Where there is a recital of an adoption in a sale deed of less than Rs. 100 in value, but more than 30 years old, the presumption of a valid adoption may be drawn Bodda Veeriah v. Aripirala Venkata . To insist upon proof of factum of adoption in such cases would lead to the anomaly that the older the adoption set up the more vulnerable becomes the occupant’s position Ramakrishan Pillai v. Thirunarayana Pillai (1932) 35 L.W. 73 : 55 Madras 40 : A.I.R. 1932 Mad. 198 : 62 M.L.J. 116.
17. Learned Counsel also relies upon Shri Kishorilal v. Mst. Chaltibai ; and Lakshman Singh v.Smt. Rup Manwar (1962) 2 S.C.J. 472 : A.I.R. 1961 1 S.C. 1378 : (1962) 2 A.W.R. (S.C.) 112 : (1962) 2 M.L.J (S.C.) 112 : (1962) 2 S.C.R. 477. It is unnecessary for me to refer to the said cases in detail. The passages in Mayne’s Hindu Law extracted above would themselves show that where the adoption had taken place long prior to the disputes, strict proof of every part of the ceremony would not be insisted upon.
18. In the present case, we have not only the deed of adoption but also the power of attorney wherein the status of the defendant as the adopted son was acknowledged by Kamalammal, widow of Markandeyalu Chetti. In fact, there is one other document in which the plaintiff has herself admitted the defendant to be the adopted son of Markandeyalu. That is a deed of settlement executed by the plaintiff on 9.11.196 7 in favour of the defendant’s wife Adhilakshmiammal. There is a clear recital in the said document that the defendant was adopted by Bysani Markandeyalu Chetti. It is significant to note that this document was executed during the lifetime of Kamalammal. Five years later, the plaintiff executes deed of revocation cancelling the aforesaid settlement deed on 14.11.1972. The said deed of revocation is marked as Ex A1. Of course, it is stated in Ex. A11 that the recitals found in Ex. A10 were false recitals, inserted without the knowledge of the plaintiff herself. This deed of revocation came into existence long after the filing of the present suit. Both the documents Exs. A10 and All were marked by the plaintiff herself during her chief examination. It is admitted by the plaintiff in the witness box that she can read English. The purpose for which these two documents were marked by the plaintiff herself is not known. But, the plaintiff has not even whispered that the recitals in Ex. A10 were surreptitiously introduced by the defendant or at his instance. Having made an admission in Ex. A10 that the. defendant is the adopted son of Markandeyalu it is for the plaintiff to explain the same if there is any explanation. The self-serving recitals in Ex. A11 made after the filing of the present suit would not serve as an explanation of the admission made in Ex. A10.
19. Having regard to the evidence on record, I am of this view that the adoption of the defendant by Markandeyalu has been proved. I hold that the defendant is the adopted son of Bysani Markandey(sic) Chetti and as such entitled to the suit properties on the death of Kamalammal. As the defendant is the true owner of the properties the plaintiff will not be entitled to get any relief on the basis of her mere’ possession. Her claim that she has perfected title by long possession and enjoyment cannot stand a moment’s scrutiny as Kamalammal died only in 1969 and the present suit has been filed within a year thereafter.
20. In view of my finding that the defendant is the adopted son of Markandeyalu, it is unnecessary to consider the alternative submission of the respondent’s counsel that even if the adoption is not proved, the plaintiff has to fail, as the defendant is the son of Markandeyalu’s brother and as the plaintiff has failed to prove her title.
21. In the result, the second appeal has to fail and it is dismissed. In the circumstances of the case, there will be no Order as to costs.