PATTU ACHI Vs. VRAJAGOPALA PILLAI (PLAINTIFF)

JUDGEMENT

(1.) This appeal raises a question of importance and also of difficulty relating to the Hindu law of adoption. Venkatachalam Pillai, the husband of the second respondent, died in 1890. No child had then been born to him, but two months after his death his widow was delivered of a still-born female child. Before his death Venkatachalam Pillai authorised his wife to make an adoption in case the child she was expecting should prove to be a female. Although Venkatachalam Pillai indicated a preference for a boy named Pichai Pillai should it become necessary to adopt a son to him it has been found as a fact that the power was of a general nature and conferred authority on the second respondent to make another adoption should the adopted boy die. On the 9 February, 1891, the second respondent adopted Pichai Pillai, who was murdered in the month of February, 1907. Pichai Pillai had attained majority, but was unmarried. On the death of Pichai Pillai the nearest male reversioner to the property which had formed Venkatachalam Pillai's estate was one Muthukumara Pillai. In 1922 the second respondent entered into an agreement of partition with Muthukumara Pillai under which the estate was divided between them, the intention being that each should have an absolute interest in the allotted portion. It is common ground that this transaction did not operate as a surrender of the estate to Muthukumara Pillai and did not bind the reversion.

(2.) In 1926 the second respondent adopted the first respondent in exercise of the power conferred upon her by her husband. She had also received the consent of the nearest sapinda. On attaining majority the first respondent filed a suit in the Court of the District Munsif of Mayavaram to recover the property which was delivered to Muthukumara Pillai as the result of the partition in 1922. This is the suit out of which the present appeal arises. The defendants were the second respondent, the appellant (the widow of Muthukumara Pillai) and the third, fourth and fifth respondents, who were joined as alienees of the property in suit. The District Munsif held that the adoption of the first respondent was valid, that the partition deed entered into by the second respondent with Muthukumara Pillai was invalid and that the first respondent was entitled to sue for the recovery of the property which had passed to Muthukumara Pillai without waiting for the death of the second respondent. There were other findings, but it is not necessary to refer to them. The appellant appealed to the Subordinate Judge of Mayavaram, who concurred in the findings of the District Munsif. The appellant then appealed to this Court, again without success, but the learned Judge who heard the second appeal (King, J.) gave a certificate under Clause 15 of the Letters Patent which has permitted of the present appeal.

(3.) Mr. Rajah Aiyar, on behalf of the appellant, desired to raise the question of the validity of the first respondent's adoption, but this was not open to him. Whether Venkatachalam Pillai gave his wife oral authority to make a second adoption in the event of the first adopted son dying is a question of fact and the judgment of the Subordinate Judge is conclusive on the point. But even if it were not, the right of the second respondent to make a second adoption cannot be challenged as the second respondent received the consent of the nearest sapinda before she adopted the first respondent. The only question which arises in this appeal is whether the adoption of the first respondent gave him an immediate right to sue to recover the property taken by Muthukumara Pillai under the partition deed, or whether his right of action is postponed until the death or re-marriage of the second respondent. There is no decision of this Court directly bearing on the question and the decisions of other High Courts in India which have bearing cannot be deemed to have settled the law. In these circumstances, it is necessary to consider what are the principles which apply.