MUTHUKRISHNA MUDALIAR Vs. HARINARAYA MUDALIAR

JUDGEMENT

(1.) The only point for determination in this appeal (except an application for an amendment of the pleadings which will be dealt with later) is whether, supposing that the widowed daughter of the propositus professes to adopt a son, the nearest reversioner in the family of the propositus has a right of suit within the terms of S. 42, Act I of 1877, to set aside such, adoption. The point was not raised in the lower Courts where the parties were content to fight out the issues on the facts, so it is not a question whether the lower Courts erred in discretion in allowing the suit--the time has long gone by to discuss discretion--but whether in law such a suit can possibly lie. The plaintiff is the reversioner, defendant 2 is the widowed daughter, and defendant 3 is the person alleged to have been adopted by her though, as now found, the adoption was invalid.

(2.) It is conceded by the learned Advocate-General that if defendant 2 had alienated the estate, a suit would undoubtedly lie. Would a suit lie if instead of actual--alienation defendant 2 designates a stranger as heir to The property.

(3.) The language of Section 42 is very wide and the appellants argument has proceeded rather upon its interpretation by the Privy Council in Januki Ammal V/s. Narayanswami A. I. R. 1916 P. O. 117 than upon a direct consideration of its actual wording. In that case the plaintiff claiming to be reversioner sued a widow for alleged acts of waste. It was found that no waste had been committed, but the plaintiff was entitled to a declaration that he was reversioner. The Judicial Committee held that at the time of the declaration it was impossible to predicate who would be the ultimate reversioner and therefore such declaration was rather futile. But a reversionary heir with no more than a hope to the succession could demand that the estate should be kept free from danger. That part of the suit which related to the alleged waste had failed and the case must accordingly be treated as if the suit had been simply one for a declaration of the plaintiff's individual right.