G APPASWAMY CHETTIAR Vs. R SARANGAPANI CHETTIAR

JUDGEMENT

(1.) THIS is an application by the unsuccessful plaintiffs, Appasami Chettiar and gopalasami Chettiar, for leave to appeal to the Supreme Court under Art. 133 (1) (a), (b) and (c) of the Constitution against the judgment and decree of a Bench of this Court to which one of us was a party, dated, 21st September, 1962, reversing the judgment and decree of the Subordinate Judge, Kumbakonam by which he had decreed the plaintiff's suit.

(2.) THE dispute between the parties, in substance and effect, relates to the right to succeed to the estate of the deceased Gopalaswamy Chettiar. The plaintiffs filed a suit (1) for a declaration that the adoption of the second defendant by the first defendant in the suit was not true and valid; (2) for a declaration that, in any event, the second defendant, as such adopted son, could not take the estate of gopalaswamy Chettiar either under the will of Gopalaswamy Chettiar or by way of succession as an intestacy after the lifetime of the first defendant; and (3) for declaring that the alienations made by defendants 1 and 2 on 16-2-1956 in favour of defendants 3 and 4 are not binding on them as reversioners of Gopalaswamy chettiar and will not enure beyond the lifetime of the first defendant.

(3.) THE facts and materials for the petitioners may be briefly stated as follows: gopalaswamy Chettiar was carrying on a prosperous trade in brass vessels in kumbakonam and he died on 19-9-1908 leaving his widow Seshammal and his daughter Ramathilakam (1st defendant), but no son. The properties described in schedules B and C were left by him. The petitioners are his sister's sons' sons. The said Ramathilakam was married to Sethu Chettiar, the Junior paternal uncle of the respondents and a sister's son of Gopalaswamy Chettiar. She adopted the second defendant in the suit, the sister's grandson of her husband, on 10-9-1953. Gopalaswamy Chettiar left a will, Ex. A-1 dated, 8-10-1908 by which he left some of his properties to charity founded by his family and the residue of his estate he gave to his widow Seshammal for life. After her death, he gave the estate to his daughter Ramathilakam, After her death, viz. , Ramathilakam, the properties would go to her puthra pouthrathi santhathies and in default of such heirs to her female descendants, and in default of such heirs also to her husband Sethu Chettiar and his descendants. Sethu chettiar died on 28-10-1919. He left no issue. Seshammal, the widow of gopalaswamy Chettiar, died in 1938. Ramathilakam adopted Sarangapani chettiar, the 1st respondent in this petition, on 10th September, 1953. The petitioners attack this adoption on the ground that the consent of all the available agnates of Sethu Chettiar had not been obtained and that the adoption was made out of corrupt motives and not for the purposes of conferring any spiritual benefit on Sethu Chettiar. In the trial Court, the learned Judge found in favour of the factum of adoption, but he held that it was not valid, since some agnates of ramathilakam's husband Sethu Chettiar had not been consulted and their consent was not obtained for the adoption. By reason of this finding, the learned trial judge left open the question of the construction of the will of Gopalaswamy chettiar and the rights claimed by the respondents viz. , Ramathilakam and her adopted son, the first two defendants in the suit, as heirs at law of Gopalaswamy chettiar on the contention that intestacy occurred by reason of the bequest in favour of Ramathilakam and her husband failing. In the end, he passed a decree in favour of the plaintiffs for a declaration, that the adoption of the second defendant by the first defendant was not valid and that the alienations made by defendants 1 and 2 in favour of defendants 3 and 4 were not binding on the reversioners of the late Gopalaswamy Chettiar and that they will not enure beyond the lifetime of the first defendant. In other respects, he dismissed the suit. It is against this finding and decree in favour of the plaintiffs, defendants 1 and 2 preferred the appeal in this court. In the appeal it was held that the adoption was valid, but that he occupied a two-fold position with reference to Gopalaswamy Chettiar, one as adopted son of the daughter of Gopalaswami Chettiar and the other as the adopted son of Sethu chettiar. Under the will the estate was directed to the taken after the lifetime of ramathilakam by her puthra pouthra santhathies. Failing that line, the testator directed that the estate should be taken by the female children of Ramathilakam. Failing that also the will directed that the estate should go to Sethu Chettiar and his descendants. Ordinarily the word "santhathies" occurring in the gift over to the descendants of Ramathilakam would include an adopted son. But this court held that the santhathies of Ramathilakam mentioned in the will would not include the adopted son, but the santhati of Sethu Chettiar could take the bequest under the will. This Bench also further held that even though Sethu Chettiar died during the lifetime of his wife, Ramathilakam, be took a vested interest in the bequest which would descend by the law of inheritance as also by reason of the words in the will, giving the estate to Sethu Chettiar and his santhathies. In the end the appeal was allowed with the result the plaintiff's suit was dismissed with costs of the appellants (Respondents) both in the High Court and in the trial Court.