Documentary proof not submitted by defendant claiming to be an adopted son.

The appellant and the first respondent are brother and sister. The first respondent claims to have been given in adoption to his maternal aunt. The appellant's case is that there was no such adoption. This in brief is the crux of the dispute.

2. The history of the case starts with one Seenia Pillai who had two daughters, Kanneyee Ammal and Pechi Ammal. Kanneyee Ammal was married to Karuppiah Pillai and Pechi Ammal was married to Subba Pillai alias Palaniya Pillai. Pechi Ammal had no issues. Kanneyee Ammal had two children who are the appellant and the first respondent. Karuppiah Pillai died in 1936; Kanneyee Ammal died in 1937. The first respondent claims that the adoption took place sometime in 1935 or 1936. Subba Pillai died in 1952 and Pechi Ammal died on 09-02-1977. It is clear from the materials on record that the first respondent was brought up by the aunt Pechi Ammal and naturally so, since he was about 7 years old when his parents died and the appellant was about one or two years old at that time. But the fact that they brought them up will not be a proof of adoption. In 1978, the appellant filed this suit claiming partition of the property belonging to Seenia Pillai which had devolved on his two daughters.

3. In the written statement, the first respondent claimed to have been given in adoption in or about 1935 by his natural parents to Subba Pillai @ Palania Pillai and Pechi Ammal. According to him, Pechi Ammal also brought up the appellant since she was an orphan and had met her marriage expenses by selling certain properties.

4. The suit properties are five in number. According to the first respondent item No.1 of the suit property was incorrectly described in the plaint and out of the entire extent of six acres and six cents, a portion had been sold to the second respondent(now deceased) and his wife and the remaining two acres is in the possession of the second respondent as a cultivating tenant and that the patta for the said lands are in the name of the first respondent. Item No.2 of the suit property was said to have been taken over by the Government and therefore, not liable to partition. Item No.3 of the suit property was alleged to have been sold by the first respondent and the adoptive mother Pechi Ammal to one Mani, years ago. Item No.4 had been sold to meet the marriage expenses of the first respondent's daughters. Finally, item No.5 did not belong to the family of Seenia Pillai, but only belong to Subba Pillai. Therefore, the appellant was not entitled to claim any right. The defendants 6 to 10 are the purchasers pending litigation.

5. A reply statement was filed by the appellant where the adoption was denied as also the exclusive claim made by the first respondent to the property. The Trial Court dismissed the suit and held that the adoption was valid.

6. Mr. M.Sathyanarayanan, learned counsel for the appellant would submit that the adoption has not been proved in accordance with law. He pointed out to the discrepancies in the oral evidence of D.W.1, the first respondent and D.W.2, the second respondent, who claims to have been the witnesses to the adoption. According to D.W.2, the adoption took place in 1935 at Item No.4 of the suit property and according to D.W.1 the adoption took place in 1935 in item No.5 of the suit property. It was submitted that when the pleadings are silent regarding the attendant circumstances of adoption and when no mention is made of the persons who witnessed the adoption,it is not open to the respondent to set up a case as though the second respondent was present at the time of adoption. In any event, the second respondent and his wife had been given valuable property i.e. item No.1 of the suit schedule property, and hence it was submitted that he was an interested witness and no weightage can be attached to his evidence. Exs-B34 and B35 are sale deeds executed by Kanneyee Ammal in which the first respondent is described as her son. In fact one of the sale deeds