DORAISAMI PILLAI Vs. CHINNIA GOUNDAN

JUDGEMENT

(1.) This is an appeal from a decision of the Subordinate Judge of North Arcot, dismissing a suit by the plaintiff for redemption of the mortgage Ex. VII executed by the senior widow of the last male owner on the 27th February 1875, and also for a declaration that a lease executed by her previously on the 28th October 1874 (Ex. XIII) is not binding on the plaintiff. The plaintiff s suit was based on the alleged adoption of his father by the junior widow of the last male owner in the year 1879. The last male owner died about the year 1850 and there is really no evidence of any authority given by him to his widow to make the adoption. Another question which arises is whether one widow could adopt without the consent of the other widow and then there is the question whether the adoption was made with the consent of the sapindas. On the latter question the Subordinate Judge has found that it is not shown that the adoption was made either with the consent of the senior widow or the sapindas. The next reversioner comes forward now as plaintiff s 1st witness and says that he was present and consented. But in 1890 he filed a suit to declare the adoption invalid and little weight attaches either to his testimony or to the testimony of the 3rd witness of the plaintiff whom the Subordinate Judge has not believed. We are therefore not prepared to interfere with the finding of the Subordinate Judge that the consent of the sapindas at the time of the adoption has not been proved. There is considerable evidence that many years later, the reversioners gave their consent to the transaction. But we are not prepared in the absence of authority to hold that such subsequent assent of the sapindas would validate the adoption. The doctrine of the consent of the sapindas validating an adoption which was laid down by the Privy Council in the Ramnad Case was based largely upon the custom prevailing in this part of India, rather than upon cited texts. A different custom prevails in Bombay and Bengal. We are not prepared in the absence of any evidence or authority to hold that the custom under which the consent of the sapindas is held to validate adoption can be extended to consent given long after the date of the adoption and we think that considerable inconvenience and uncertainty would result from giving the doctrine any such further development. It is therefore unnecessary to consider the question of the alleged failure of the senior widow to give her consent or the effect of her having subsequently given it. On this finding the plaintiff s case as originally laid in the plaint must fail.

(2.) The adoption was not proved. But in a supplemental written statement which he put in, he relied on a release (Ex. R) which was executed in his favour after the filing of the plaint by the person who was the right heir of the last male owner on the death of the junior widow in 1902, if there was no adoption of the plaintiff s father. That document was entered into between the plaintiff who with his father before him had been in possession of the estate for a great many years on the footing of the adoption and the person who was entitled to succeed in 1902 if there was no adoption. By that document the heir released all his rights in favour of the plaintiff. We cannot agree with the Subordinate Judge that Ex. R, does not purport to be and is not a conveyance. The word used is release but the intention to transfer any rights which the executant of the document has is clear and we see no sufficient reason why it should not be treated as a conveyance. The question next arises how far the plaintiff should be allowed to rely upon this title in the present suit. The matter was made the subject of an issue which was clearly in our opinion intended not only to raise the question whether he was entitled to put forward such a claim in this suit but also whether such a claim if put forward would be a good one. The Subordinate Judge held that Ex. R which was executed after the institution of the suit could not supply the plaintiff s want of title and it has been strenuously contended before us that a cause of action which arises subsequently to the institution of the suit cannot properly be included in the suit by amending the pleadings and must form the matter of a fresh suit. A.G. v. Corporation of Avon (1868) 3 De. G & Section 637, Evans v. Bagshaw (1870) 5 Ch. 340. Creed v. Creed (1918) Ir. Rep. 1 Ch. 48. Prannath Sahah v. Madhu Khulu (1886) I.L.R. 13 Cal. 96. Sarat Chandra Banerjee v. Apurpa Krishna Roy (1911) 14 C.L.J. 55. Mathura Mohan Saha v. Ram Kumara Saha and Chittagong District Board (1915) I.L.R. 43 C. 790 at 817. Rangayya Reddy v. Subramania Aiyar (1917) I.L.R. 40 M. 355. The English decision relied on by the other side, Bourke v. Davis (1889) 44 Ch. D. 110 is not strictly in point as what happened was that the plaintiff who discovered after the institution of the suit that he was not the owner of the bed of the river as he had supposed and obtained a conveyance of it was allowed to issue a fresh writ as to the infringement of his right as to the bed of the river and both suits were ordered to be tried together. There are no English decisions since the Judicature Act that such a course is absolutely incompetent and on the other band as observed in Kishandas Rupchand v. Rachappa Vithoba (1909) I.L.R. 33 B. 644 the discretion conferred under Order VI Rule 17 (of the C.P. Code) and Order XXVIII Rule 1 of the English Rules is very wide. In the present case the plaintiff s father had been in possession of the estate as adopted son of the last male owner until his death with the consent of all the reversioners and the plaintiff had succeeded him and instituted the present suit on the footing that his title was unquestionable, as indeed it was, so far as his family is concerned. When it was questioned by the defendant he at once put himself right as far as he could by obtaining Ek, R, from the next reversioner and put in an additional written statement on which an issue was raised apparently without objection. In this state of things I do not think that we are compelled in appeal to say that the amendment was wrongly allowed and that the issue as to the plaintiff s rights under Ex. R, was wrongly raised. To say that a plaintiff cannot be allowed to cure a formal defect in his title to sue at an early stage of the suit as soon as it is challenged and must be driven in every such case to a fresh suit appears to me to impose an undue hardship on litigants in India having regard to the state of the law as to court-fees and cost of litigation, and I do not think we are compelled by authority to adopt such a view as to interfere in appeal in any case where such an amendment has been allowed in the Lower Court. I am of course assuming that the amendment is otherwise proper and does not prejudice the other side. As regards the plaintiff s claim to redeem the mortgage, the mortgage had not yet become barred and will not be barred for a great many years more and in these circumstances we think that having regard to the issue which has been framed he should be given relief so far as regards the redemption of the mortgage. As regards his claim for a declaration that the prior lease is not binding upon him, that stands in a very different position because assuming there was no adoption the right of his assignor the next heir arose on the death of the last widow in 1902 and is alleged to have become barred even before the date of the assignment. We think it would be wrong to allow the plaintiff to question that lease in this suit. The position is a somewhat curious one. The lease (Ex. XIII) of the 29th October 1874 was a permanent lease of 3 villages executed by the senior widow in favour of one Papi Reddy, the ancestor of these defendants and the usufructuary mortgage (Ex. VII) of the 27th February 1875 was a mortgage by the same senior widow to a third party, of one of these 3 villages in which it was recited that she had arranged with Papi Reddy that the mortgagee s possession should not be interfered with, and by Ex. N, executed shortly afterwards on the 1st March 1875 in favour of the mortgagee, Narayanaswami Reddi, she affirmed the lease for the period of the usufructuary mortgage till the mortgage is redeemed. Then by Ex. IX of the 14th March 1876 Narayanaswami Reddi, the mortgagee, assigned to Papi Reddy his rights under Ex. VII and Ex. N which was a supplemental lease in which it was recited that Papi Reddi has attested it to show that he had suspended his rights under the lease as regards this one village until the mortgage should be redeemed. Thus by Ex. IX of the 14th March 1876 the mortgagee assigned all his rights to Papi Reddy who thus united in his own original lease Ex. XIII, the mortgage Ex. VII and the lease supplemental to the mortgage, Ex. N. The result of these transactions is that on redemption the defendant will be entitled to remain in possession under the lease, Ex. XIII and subject to the terms of the lease which as we have already held cannot be questioned in the present suit, and there will be a declaration to that effect. The plaintiff is desirous of being allowed to redeem even on these terms. In the result we reverse the decree of the Lower Court and direct the Subordinate Judge to take the necessary accounts and pass a preliminary decree for redemption, The plaintiff must pay the costs of this appeal. The other costs to be dealt with in the decree. Kumaraswami Sastri, J.

(3.) I agree.