K R SANKARALINGAM PILLAI Vs. VELUCHAMI PILLAI, MINOR BY ADOPTIVE MOTHER AND NEXT FRIEND, CHELLA THAYI ALIAS MEENAKSHI AMMAL

JUDGEMENT

(1.) This appeal raises the important question whether a son adopted to a deceased coparcener is entitled to reopen a partition of family property effected by the surviving coparceners before the adoption took place.

(2.) One K. Ramaswami Pillai had four sons, two of whom survived him. They are the 1 and 2nd defendants in this suit. The other two sons were K. R. Karuppanna Pillai, the deceased husband of the 6 defendant, and K. R. Ramaswami Pillai, the deceased husband of Chellathayi, the adoptive mother of the plaintiff, who is a minor. The father and his sons were joint in estate. Both Karuppanna and Ramaswami died without issue in 1924. The father died in 1929 and in 1936 the 1 and 2nd defendants partitioned the family estate between themselves. Admittedly each is still in possession of a moiety of the estate. On the 25th January, 1937, Chellathayi adopted the plaintiff and a week later Karuppanna's widow adopted the 3 defendant.

(3.) The suit out of which this appeal arises was filed by the adopted son of Ramaswami, suing through his mother as his next friend, He claimed to be entitled to recover one-fourth of the family estate. The 1 and 2nd defendants resisted the claim. Their main contentions were that the widow had no power to adopt after the partition of the family property and that in any event the plaintiff could not claim a re-partition. The suit was tried by the Additional Subordinate Judge of Madura, who granted the plaintiff the decree which he sought. This decision was concurred in by the District Judge on appeal. Both Courts were of the opinion that the plain-, tiff had been lawfully adopted and that the partition did not debar him from recovering a one-fourth share as the son of his father. The 1 defendant then appealed to this Court. The appeal was heard by Venkataramana Rao, J., who agreed with the Courts below that the partition of the estate by the 1 and 2nd defendants did not prevent the plaintiff from recovering his one-fourth share in the estate. The validity of the adoption was not challenged before Venkataramana Rao, J. The present appeal is from the judgment of the learned Judge and the sole question is whether the plaintiff has the right to demand a re- partition.