S S S V KASIVISWANATHAN CHETTIAR SINCE DECEASED NOW REPRESENTED BY LAKSHMI ACHI Vs. S S S SV SOMASUNDARAM CHETTIARAND

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Madras dated 10 December 1942, which affirmed with a slight modification the decree of the Subordinate Judge of Sivaganga dated 21st November 1940, in O. S. NO. 11 of 1939.

(2.) The appeal arises out of a suit instituted by the plaintiff (the first respondent) for partition and recovery of a half share of the properties in the possession of defendant 1, the appellant before the Board, now dead, who is represented by Lakshmi Achi. Defendant 1 was the contesting defendant and will be referred to hereafter as "the defendant".

(3.) The plaintiff claimed the properties as the duly adopted son of the elder brother of the defendant. At the time of the adoption the adoptive parents of the plaintiff, that is, the elder brother of the defendant and his wife, were dead, and the adoption was brought about by the adoptive grandfather. It appears that it was done with the consent of the defendant also. Under the ordinary Hindu law which governs the parties such an adoption would be invalid, as the only person who can make an adoption is the adoptive father, if he is alive, and after his death, his widow. But it is claimed that according to the special custom prevailing amongst the Nattukottai Chetti community to which the parties belong, an adoption can be validly made to a person after his death, and even after the death of his widow, by the father or other pangalis (agnates) of the adoptive father. It was pleaded in paragraph 3 of the plaint that: " .... after the death of defendant 1's elder brother, defendant 1's father had the plaintiff adopted on the .... 20 April 1923, in due form according to the caste custom prevalent amongst the Nattukottai Chettis for a long time. Defendant 1 accepted the adoption, had the adoption (ceremony) performed along with his father and he has himself written the said adoption deed .... " The defendant denied that there was a special custom and stated that even if the custom alleged should be proved it is not valid under the Hindu law as the adoption was made after the death of both the adoptive father and mother and should not be given effect to. Some other defects comparatively of a minor nature were also mentioned by him, but these have not been pressed before their Lordships.