U MUTHUKRISHNAN Vs. PALANI

JUDGEMENT

(1.) The defendant is the appellant. The plaintiffs laid the suit for recovery of the suit properties or in the alternative for joint possession along with the defendant. The properties belonged originally to one Swarnathammal who created a trust on 30th July, 1925, under Exhibit A-l by which she appointed Srinivasa Pillai and his, heirs as trustees. Srinivasa Pillai died in July, 1930. He had three sons, Sabarathnam, who died on 16th November, 1949, Manickavachagam and the present defendant. The plaintiffs are the sons of Sabarathnam; The defendant was adopted to his aunt's husband Vasudeva, on 20th February, 1950, under Exhibit B-2, The other brother of the defendant, i.e., Manickavachagam, became adopted to his paternal grand-uncle even in 1936 during the lifetime of Srinivasa Pillai. Defendant filed a suit for partition in O.S. No. 13 of 1942 of the properties and in it included the suit properties. Exhibit B-19 is the plaint in that suit and Exhibit B-21 is the preliminary decree. Against the preliminary decree in O.S. No. 13 of 1942, there was an appeal in A.S.' No. 56 of 1943 and Exhibit A-30 is the appellate judgment. In the appeal, the suit properties were excluded by consent of parties with liberty to the present defendant to file a fresh suit. Exhibit A-31 is the judgment of the High Court in A.S. No. 512 of 1944 in the same suit against the final decree and this was disposed of on 27th March, 1946.

(2.) The defendant put forward a plea of family arrangement in pursuance of which he alleged, he was made the trustee in respect of the suit properties, as his brother Sabarathnam continued to be the trustee of the other properties, and for this purpose he depended upon Exhibit A-2, the will dated 12th November, 1949 executed by Sabarathnam in which it is mentioned that the present defendant was to conduct the charities from out of the suit properties. Sabarathnam died on 16th November 1949. It was thereafter that the defendant was adopted on 20th February 1950, by his aunt's husband, Vasudeva. The plaintiffs filed the suit claiming that as the defendant had been adopted into another family, he ceased to be entitled to be a trustee in respect of the suit properties. The suit was dismissed by the trial Court. But the appellate Court allowed the appeal and decreed the plaintiff's suit.

(3.) As far as the other family properties are concerned, the defendant had became a divided member even before he was adopted and therefore there is no doubt that in respect of these properties, he would not become divested as a result of his having been adopted by the other family. That is the effect of the decision of this Court in Sri Raja Venkata Narasimha Appa Rao v. Sri Raja Rangayya Appa Rao, 1906 16 MadLJ 178 . Though the Bombay High Court has taken a different view in Dattatraya Sakharam v. Govind Sambaji,1916 ILR 429, that need not deter us because as far as this Court is concerned, the decision of the Bench of this Court Raja Venkata Narasimha Appa Rao v. Sri Raja Rangayya Appa Rao, 1906 16 MadLJ 178 is binding. Even the Bombay High Court has subsequently taken a view in Mahabaleswara Narayan v. Subramania Shivaram,1923 ILR 542, a view which is in consonance with the view taken by this Court in Sri Raja Venkata Narasimha Appa Rao v. Sri Raja Rangayya Appa Rao, 1906 16 MadLJ 178 . The Calcutta High Court has always taken the same view though the Calcutta decisions are based on the Dayabagha system of law (See the decisions in Beharilal Laha v. Kailas Chander Laha,1903 7 CWN 121. In fact the Calcutta High Court in the decision reported in Shyamcharan Chattopadhyaya v. Sricharan Chattopadhyaya,1929 ILR 1135, has referred to the decision of the Bombay High Court in Dattatraya Sakharam v. Govind Sambaji,1916 ILR 429, and has dealt with the contention raised before it on the decisions of the Privy Council in T. Raghuraj Chandra v. Rani Subhadra Kunwar,1928 55 MadLJ 778 and Dattatraya Sakharam Devi v. Govind Sambaji Kulkami,1916 ILR 429. It has been explained there that the decision of the Privy Council above referred to cannot be said to have approved of the decision of the Bombay High Court in Dattatraya Sakharam Devi v. Govind Sambaji Kulkarni,1916 ILR 429. The Calcutta High Court also referred to the decision in Moneram Kolita v. Kori Kolitar,1880 ILR 776, and came to the conclusion that an estate once vested under the Hindu Law cannot be divested and therefore an heir, who has inherited any property from the family of his birth, is not subsequently divested of it on his being adopted by another person. The Supreme Court in its decision in Srinivas Krishnarao Kango v. Narayanan Devji Kongo, 1955 1 SCR 1 , has pointed out that the principle of an adopted son divesting an estate already vested in a widow is based on special considerations and that it could not be extended so as to divest collaterals who have succeeded to an estate. The discussion there would show that the Supreme Court is disposed to take the view taken by this Court rather than the view taken by the Bombay High Court. It is therefore clear that in respect of the family properties which the defendant got under the partition, he cannot be divested of them.