KILLI LATCHAMMA Vs. KILLI APPANNA

JUDGEMENT

(1.) The plaintiffs in this suit are the sons of two brothers and the defendants 1 and 2 are widow and daughter respectively of another brother named Musalayya. These brothers were divided and Musalayya after adopting one Poluvadu died. Poluvadu also died and his widow remarried. The 1 defendant his adoptive mother obtained possession of the estate of her son. The plaintiffs sue as the reversioners of the deceased Poluvadu and ask for a declaration that Poluvadu's adoption was valid, that they are the reversionary heirs and that an alienation made by the 1 defendant is not binding upon them. The lower courts have found that the alienation was valid because it was an alienation of property forming the 1 defendant's stridhanam but they have granted the declarations as prayed for.

(2.) It is now contended for the defendants (appellants) that, inasmuch as the substantial relief asked for, namely, the declaration that the alienation is invalid, cannot be granted, the plaintiffs are not entitled to the other declarations. It may here be stated that the plaintiffs really base their suit on an alleged denial by the 1 defendant in collusion with the 2nd defendant that Poluvadu had been adopted and the declaration as to the validity of the adoption is the main prayer in their pLalnt. It is however argued in appeal that this question of adoption is merely subsidiary to the question of plaintiffs right to be considered reversionary heirs and that their right as reversioners has to be proved through the adoption. No doubt if this were so and the chief relief asked for were the declaration as to the reversionary right the decree could not be upheld. The question has been considered recently by the Judicial Committee in Venkatanarayana Pillai V/s. Subbammal (1915) I.L.R. 38 Mad. 406, Janaki Ammal V/s. Narayanaswamy Iyer (1916) I.L.R. 39 Mad. 634 and Sandagar Singh V/s. Pardip Narayan Singh (1917) I.L.R. 45 Cal. 510. The effect of these decisions appears to me to be that when reversioners sue for a declaration of their reversionary right such a suit will not lie except when such declaration is incidental to some other relief which they can claim and this is the view of those decisions which has been taken by another Bench of this Court in Navaneetha Krishna Thevan V/s. Ramasami Pandia Thalavar (1916) I.L.R. 40 Mad. 871.

(3.) We have, therefore, in this case to see whether the declaration as to the reversionary right is the main praye r in the plaintiffs suit or whether it is merely incidental to the declaration as to adoption. Under Section 42 of the Specific Relief Act the Court is empowered in its discretion to make a declaration in favour of any person entitled toany legal character, or to any right as to any property. It is I think clearly established now that reversioners can bring a suit for a declaration in certain circumstances and for that purpose they must be deemed to be persons having a right to property within the meaning of Section 42 viz,, to the estate to which they are the reversioners and in Venkatanarayana Pillai V/s. Subbammal (1915) I.L.R. 38 Mad. 406 two kinds of suits which can be brought by them are specified, namely, suits to set aside an adoption by a widow and suits to set aside an improper alienation of the estate, and the Judicial Committee remarked that in both these cases the right to sue is based on a danger to the inheritance common to all the reversioners. Under illustration (f) to Section 42 a suit can be brought by a reversioner to declare an adoption by a widow invalid. The present suit is merely the converse of that but it is contended for the appellants that the converse suit is not of the same nature as a suit to set aside an adoption the argument being that an adoption, by a widow devolves the property immediately on the adopted son and that gives a right to the reversioners to sue; but it may be pointed out that when there-has been an adoption as has been found to be t he case heie, a denial by the widow of the truth and validity of such adoption is a danger to the inheritance. If that denial is persisted in possibly for a long series of years until the widow finally dies, it may then be impossible for the reversioners to prove that an adoption actually took place and the effect of the adoption being declared invalid would be to alter the succession to the estate, for the last male holder would then be the father instead of the adopted son and if the father is the last male holder his daughter would be in the line of inheritance and if she had a son the estate would devolve on him to the exclusion of the father's own brothers or nephews--in this case, the plaintiffs. The result, therefore, of the denial by the 1 defendant of the validity of the adoption might be that the estate would on her death devolve on her daughter and daughter's son thus excluding the plaintiffs who would be entitled to come in after the first defendant if Poluvadu had really been adopted. To allow this denial of the 1 defendant to pass unnoticed would undoubtedly be a danger to the estate, for in cases like adoption and so on it is advisable that the factum should be determined as near the date of the adoption possible and therefore, the plaintiffs are justified in i bringing the suit now to declare the adoption valid one of the reasons being that the suit is valuable as prepetua-tion of evidence as otherwise it might not be available when the reversion falls in. This suit isnot really a conflict as suggested by the appellants between two sets of reversioners as in Rama Rao V/s. The Rajah of Pittapur, I.L.R. 42 Mad. 219 but it is really a suit to establish finally the identity of the last male holder and thereby to ascertain in which family are to be found the general body of reversioners. It is of course possible that the 2nd defendant might die without a son in which case the plaintiffs would be the reversioners after her death but in view of the possibility of her having a son there is undoubtedly a danger of the estate being diverted from its proper course. By establishing the validity of adoption the estate devolves in one way, whereas if there had not been an adoption the estate might devolve in another and might be diverted from the proper heirs. The Subordinate fudge has actually found that this suit was brought by the plaintiffs in consequence of the denial of the adoption by the 1 defendant and a perusal of the pLalnt shows that this is so. The alienation compLalned of Was of property the value of which bears a very small proportion to the whole estate and the alienation took place many years before the suit was brought. I think here the plaintiffs have brought this suit primarily to establish the factum of adoption and secondarily to set aside the alienation. I therefore can see no reason why this suit to establish the adoption should not lie under Section 42 of the Specific Relief Act, and if it does lie, the declaration that the plaintiffs are the presumptive reversioners is merely an incidental declaration following on the factum of adoption.