VENKALAKSHMI AMMAL Vs. JAGANNATHAN

JUDGEMENT

(1.) THE main appeal (A. S. No. 93 of 1957) is by defendants 1, 2, 3, 4 and 5 in the Court below in a suit by a minor represented by his next friend adoptive mother, instituted in forma pauperis for possession, and, alternatively, for partition of the suit properties. This appeal involves a question of considerable interest and significance, with reference to the Hindu Law of adoption as it stood prior to the recent enactments which have attempted a partial codification of the Hindu Law. That question, broadly stated, is whether, upon the theory of spiritual benefit, which is now the guiding principle in determining the validity of an adoption, the widow of a predeceased son (the daughter -in -law) could validly adopt to her husband, after the death of the father -in -law, who had himself left a widow alive on the date of the adoption. There is a related question whether, assuming such an adoption to be valid, the adopted heir (the minor plaintiff in this case) could upon the doctrine of dating back of the rights of an adopted heir to the date of death of his adoptive father divest the widow of the father -in -law, who had succeeded to an undivided coparcenary estate (namely, the widow of the adoptive grandfather), not merely of the share of the adoptive father, but of the entire interest in the property. The first question which I have earlier formulated, is one that is res integra in a substantial, if not a formal, sense; though there are several decisions propounding the principles applicable to closely analogous situations, they have to be distinguished for important reasons, and there is no decision which settles the issue, strictly upon the theory of spiritual benefit. For this reason, the facts have to be stated somewhat extensively, for an appreciation of the manner in which the conflict has arisen in the present case, and both the decisions which have an indirect relevance to the main issue, and the actual Hindu Law texts have to be carefully examined.

(2.) THE memorandum of cross -objections in the appeal is by the minor plaintiff represented by his adoptive mother (first respondent), and is limited to a simple finding of fact concerning item 3 of the 'C' Schedule properties and property of the 'F' Schedule. C. M. A. No. 282 of 1957 is by the 28th and the 31st defendants in the Court below, who were alienees in respect of certain items from defendants 1 to 4, and ex parte in the suit. This appeal seeks to canvass the propriety of the order dismissing the application of these appellants to set aside the ex parte decree under Order IX, Rule 13, Code of Civil Procedure.

(3.) IT must be immediately stressed that this genealogical table, relied on by plaintiff (first respondent,) has not been accepted by the appellants in A. S. No. 93 of 1957. Proof of the genealogy depends upon two factors. Firstly, we have the document Ex. A -18, purporting to have been executed by Chandrasekara of the collateral branch, father of P. Ws. 2 and 6 and K. C. Subramanian. P. Ws. 2 and 6 have both given evidence concerning the composition of the genealogy, and sworn that, though it was not signed by any one, it is in the handwriting of Chandrasekara, and was prepared some 10 or 15 years prior to suit. Apart from this, we have the oral evidence of P. W. 2 and P. W. 6 concerning the Sapinda relationships, and there is no alternative table of relationships set out by the appellants, or advanced by them. Hence, for the purposes of the appeal, the genealogy might be taken as established.