Judgment

R. S. PATHAK, J. - This is a plaintiffs appeal on a certificate granted under sub. clause (a) of Clause (1) of Article 133 of the Constitution by the High Court of Madhya Pradesh.

2. The appellant, who belongs to a prominent family of Jabalpur, instituted a suit, out of which the present appeal arises, for partition and separate possession and for rendition of accounts. The properties in suit comprise most of the estate falling to the Shari of one Seth Jagannathdas on a family partition of October 19, 1939.

3. The genealogy of the family may be set forth :

Jagannathdas and his wife Premwati had no children. Premwati suffered from tuberculosis for several years and died on Sept. 24, 1951. After her death Jagannathdas created a trust by a registered deed dated March 17, 1952 called the Seth Mannoolal Jagannathdas Hospital Trust in respect of most of his estate. He reserved the right to revoke the trust, but subsequently by a further document dated July 14, 1952 he relinquished that right. Ever since the inception of the trust the trustees have remained in possession of the estate.

4. The appellant filed the present suit on Sept. 24, 1957 against Jagannathdas and the other trustees claiming that he bad been adopted by Jagannathdas and Premwati as their son on Sept. 24, 1951, that the trust was void and that he was entitled to half the estate. Jagannathdas died on Oct. 7, 1957 during the pendency of the suit, and in consequence the appellant claimed a 3/4th share of the estate, with the remaining 1/4th being conceded to Narayanibai the mother of Jagannathdas.

5. The suit was decreed by the trial Court on Sept. 27, 1961 and a preliminary decree was passed declaring the appellant entitled to the share claimed by him and to partition and separate possession of the properties. The trust was declared invalid and the trustees, in consequence, were declared trespassers and liable to render accounts to the appellant.

6. An appeal by the trustees was allowed by the High Court by its judgment and decree dated Sept. 30, 1967 and the suit has been dismissed.

7. Several issues were tried by the trial Court and considered on appeal by the High Court, but the most crucial and decisive issue, and which constitutes the core of the controversy between the parties, is whether the appellant can be said to be adopted son of Jagannathdas. The trial Court found that the appellant was in fact adopted by Jagannathdas and Premwati on Sept. 24, 1951 and that the adoption was valid. The High Court has reversed the finding, taking a different view altogether of the evidence on the record.

8. The question whether the appellant was in fact adopted by Jagannathdas and Premwati has been determined essentially on the basis of oral testimony, and reference has been made to a few documents only in supplementation of the oral evidence. At this stage, it would be right to refer to the general principle that, in an appeal against a trial Court decree, when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence 6n any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. In this connection, reference may usefully be made to W. C. Macdonald v. Fred Latimer, AIR 1929 PC 15, 18 where the Privy Council laid down that when there is a direct conflict between the oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or cont