LAWS(PVC)-1912-5-70

VAITHILINGA MUDALI Vs. MURUGIAN ALIAS NATESA MUDALI

Decided On May 03, 1912
VAITHILINGA MUDALI Appellant
V/S
MURUGIAN ALIAS NATESA MUDALI Respondents

JUDGEMENT

(1.) The facts out of which this Second Appeal arises may be stated as follows:

(2.) There were four divided brothers in a Hindu family. The plaintiffs are two of these. Another was Akshayalinga, who was apparently adopted by one Subba Mudaliar in 1873. But in the course of the suit it was found that the adoption was invalid because both the father and mother of Akshayalinga were dead at the time of his apparent adoption. The fourth brother was Viswa-linga, who died in 1892. The dispute is in regard to his property. The Plaintiffs claimed it as his reversionery heirs and their suit was to recover it from the defendant, who is the son of Akshayalinga and who is said to have trespassed upon it in 1910. The defendant originally claimed the property as the self-acquisition of Akshayalinga purchased benami in the name of Viswalinga, but both the Courts below found against that plea. In the alternative defendant resisted the plaintiffs suit on the ground that, as the adoption of Akshayalinga was invalid, he (defendant) had not lost his rights in his natural family and was therefore entitled to one-third of the property and plaintiff could not recover even the remaining two-thirds in this suit as it is framed as a suit in ejectment against a trespasser and cannot be converted into a suit for partition. The District Judge accepted this alternative defence and dismissed the plaintiff s suit.

(3.) The plaintiff s appeal. They contend that the adoption of Akshayalinga having been made so long ago as 1873 and having been treated as a valid adoption by Akshayalinga himself (Exhibit J in 1878) and by Subba Mudaliar (see his will, Exhibit II in 1878) and generally by the family, the defendant cannot now deny the validity of the adoption. It is not, however, shown how any estoppel arises against the defendant s plea. The four brothers were divided before Akshayalinga s apparent adoption and it is not shown that in consequence of the adoption, the plaintiff s position has been in any way changed to their disadvantage, so as to render it inequitable that the defendant should be restored to his place in his natural family. This appears to be the test which should be applied in accordance with the principle underlying the decisions in Gopalayyan v. Raghupathi Ayyan (1873) 7 M.H.C.R. 250 and Parvatibayamma v. Ramakrishna Rau (1895) I.L.R. 18 M. 115. It is hardly necessary to quote authority for the proposition that an invalid adoption does not per se destroy the adoptee s rights in his natural family. Bawani Sankara Pandit v. Ambabay Ammai (1863) 1 M.H.C.R. 363 approved in Lakshmiappa v. Ratnaka and Ors. (1878) 12 Bora. H.C.R. 364 at 397.