DEIVASENATHIPATHI PILLAI Vs. VISALAKSHI ACHI

JUDGEMENT

(1.) THIS appeal from the judgment of Anantnarayanan J. relates to a claim to the estate left by one Balakrishna Pillai, a successful lawyer who was practising at ariyalur in Tiruchirapalli Dt. He died on 6-4-1893, leaving behind him his two windows, Meenakshi Achi and Sornathachi. By the latter, he had a daughter visalakshi Achi who was a child aged 3 years at the time of his death. Visalakshi came of age and was married but no issue resulted from that marriage. Meenakshi, of the windows, died about the year 1917. Visalakshi, the first respondent became insane and in O. P. 69 of 1944, on the file of the District court, Tiruchirapalli, the second respondent to this appeal was appointed as her guardian. The appellant claims that he had been adopted by Swarnathachi on 149-42, in pursuance of an authority given to her by her husband. The adoption is evidenced by a document, Ex A. l, which bears the same date as the adoption. Within a period of four months thereform, on 29-12-1942, Swarnathachi executed a deed, Ex. B. 1, cancelling the adoption. An adoption once lawfully made effects a change of status and it will not thereafter be open to adoptive parent to cancel it. But the deed of cancellation, Ex B. 1, is valuable in the instant case, to show the circumstances under which the adoption was made and is also a pointer to the subsequent conduct of the parties. While the adoption deed states that balakrishna Pillai had given each one of his two windows permission to adopt a son if Visalakshi were not to be blessed with a male heir, the deed of cancellation recites that the adoption and presumably this recital as well were brought about by the scheming father of the appellant, a village Munsif, who was in a position of confidence to Swarnathachi, Swarnathachi further declared in Ex. B. 1 that she herself had no legal right to take a boy in addition.

(2.) IT is not now disputed that notwithstanding the adoption, possession of the properties remained with Swarnathachi and after her lifetime it was with her daughter Visalakshi. Subsequently, when a guardian was appointed to her, on her becoming insane, the properties were taken possession of by that guardian. It is somewhat significant that the appellant, who was nearly 17 years of age at the time of his adoption, did not take any steps to recover possession of the properties till 5-8-1953, when he brought the suit out of which this appeal arises.

(3.) THE claim of the appellant that he was lawfully adopted to Balakrishna Pillai was resisted on behalf of Visalakshi by her guardian, both on the g4round of its facts as well as its validity. The learned subordinate Judge accepted the case of the appellant and decreed the suit. On appeal, Anantanarayanan J. while holding that the ceremony of adoption must have been made by Swarnathachi on 14-91942, was not prepared to accept that there was any authority to the window from her husband to make the adoption. Upon the evidence in the case, the learned judge found that the utmost that could be said was that there was a joint authority to the two surviving windows of Balakrishna Pillai which lapsed on the death of Meenakshi. On this finding, the learned judge set aside the decree of the lower court and dismissed the suit of the appellant.