MAHALINGAM Vs. KANNAYYAN

JUDGEMENT

(1.) In this Second Appeal, the scramble is for the property which originally belonged to one Lakshmana Pillai. Lakshmana Pillai had a first wife by name Parvathammal. He also had a second wife by name Marudambal Achi. We are not concerned with the second wife Lakshmana Pillai had no male issues. He had two daughters. Sampoornam and Amirthavalli. The plaintiff in the suit is the son of Sampooranam. The first defendant in the suit is the son of Amirthavalli. The second defendant is the father of the first-defendant. On 11-6-1934 Lakshmana Pillai executed a deed of settlement as per the original of Ex. A.1. giving the suit property to his first wife Parvathammal for her life and delineating the devolution to his heirs after the lifetime of Pravathammal. On 8-6-1964 Lakshmana Pillai took in adoption the plaintiff, as we could see from Ex.A.2. Lakshmana Pillai diedqhereafter. On 18-6-1976, as per EX.B.1, Parvathammal executed a Will giving the suit-property to the first-defendant. Parvathammal died in July, 1976. The second-defendant would claim that he is a cultivating tenant of the suit-property. The plaintiff laid the suit for recovery of possession and for mesne profits. The defendants would contest the suit stating that the adoption was not true and even otherwise it was not valid and as per the Will of Parvathammal the first-defendant must get at the suit-property absolutely.

(2.) The first Court, finding that the plaintiff at the time of the adoption as per Ex. A.2 was 21 years old, discountenanced the validity of the said adoption. The first Court also discredited the Will relied on by the firstdefendant as not valid in the eye of law for the reason that Parvathammal had only a life estate and that came to an end with her life and that no right devolved on the firstdefendant as per the Will Ex.B.1. The first Court repelled the case of the second-defendant that he is a cultivating tenant of the suit property. The suit of the plaintiff was dismissed. The plaintiff preferred an appeal to the lower Appellate Court. It must be noted here that the defendants did not canvass any of the findings rendered by the first Court against them by way of any cross-objection. The lower Appellate Court upheld the validity of' the adoption on the ground there ought to have been a custom in the community to which the parties belong, permitting adoption of the person, who has completed the age of fifteen years. However, on the basis of the finding rendered by the first Court that as per the terms of the original of EX.A.1. Parvathammal had only a life-estate and after her lifetime all the heirs of Lakshmana Pillai are entitled to get the suit-property and since all the heirs of Lakshman Pillai are not before Court, the suit must, fail on the ground of non joinder of parties, dismissed the appeal and thereby maintaining the dismissal of the suit by the first Court. This Second Appeal is directed against the judgment and decree of the lower Appellate Court.

(3.) It is true that at the time of the admission of the Second Appeal, questions were formulated by this Court with regard to the propriety of the lower Appellate Court in non-suiting the plaintiff on the simple ground of non-joinder of parties. The defendants/respondents herein have preferred a Memorandum of Cross-Objection, questioning the finding of the lower Appellate Court, advancing a case of custom and usage in the community, permitting adoption of a person, who has completed the age of fifteen years.