CHIRUVOLU PUNNAMMA Vs. CHIRUVOLU PERRAZU

JUDGEMENT

(1.) The, question, in this case is wether the third defendant, the mother of one Krishna Brahmam, deceased, and his presumptive reversioner, in suing for and obtaining a decree declaring the adoption of the first defendant as son to Krishna Brahmam made by his widow the 2nd defendant, acted in a representative capacity with reference to the plaintiff the next reversioner and the other ulterior reversioners, assuming that the decree was obtained without fraud or collusion and after a fair trial.

(2.) The question was argued by Mr. Krisbnaswami Aiyar on behalf of the 1 defendant and Mr. Bangachariar on behalf of the plaintiff very fully and ably, and our attention was drawn to a number of decisions more or less bearing on the matter. It will be convenient first to collate such of these cases as are really pertinent, even if but to a limited extent, and then to examine the question with reference-to the principle involved. The cases relied on, speaking generally, fall under two main heads, (1) those relating to alienations of property forming part of the estate of a deceased full owner by a widow or other successor thereto who takes only a qualified interest, and, (2) those relating to adoption by widow.

(3.) Taking up the former, in Tekant Doorga Persad Singh V/s. Tekaitni Doorga Konwani (1878) L.R. 5 I.A. 149 one Doorga Konwari, mother of the late full owner had executed a deed of sale of a portion of the estate to a . person named Joy Mungal. The estate was impartible and the plaintiff Doorga Per shad as the eldest male heir in the eldest branch of the second degree in the family sued inter alia a declaration of the invalidity of the deed by the qualified owner alleging a Koolachar or family custom by which he claimed to be entitled to succeed Doorga Konwari. The High Court found against the Koolachar and dismissed the suit. This dismissal was upheld by the Judicial Committee but not on the grounds on which the High Court had proceeded. Their Lordships considered that even if the finding as to the Koolachar relied on by the plaintiff were in his favour, it would still be necessary to remit the case for a finding as to how far the alienation was justified by necessity, and as so to remit the case would lead to expense and delay, they confirmed the decree of the High Court but at the same time set aside the finding of that Court as to the Koolachar leaving it open to the plaintiff and others to litigate that matter in the future. As one of the reasons for their Lordships thus declining to grant a declaration in the exercise of their discretion they observe: And if the enquiry (as to the necessity for the deed) should result in a finding favourable to Joy Mungal, the decision might not be final in his favour because the present plaintiff might die in the life-time of the widow, and the estate might "never come to him.(p. 163)