Decided on November 26,1952

Dana Lakshmi Ammal And Ors. Appellant
Pichayya Naidu And Anr. Respondents


Subba Rao, J. - (1.) THIS is an appeal against the decree and judgment of the Court of the Subordinate Judge, Tinnevelly, in a suit filed by the first respondent for a declaration that the second defendant is not the adopted son of the first defendant and the alleged adoption is neither true in fact nor valid in law. For convenience of reference the following genealogy may usefully be read:
(2.) MUTHUKRIS /prehna Naidu died on 22 -6 -1941. The first defendant is his widow. Danalakslimi Ammal. He died possessed of the plaint schedule properties. He is alleged to have executed a document styled will dated 21 -6 -1941. Pursuant to the power to adopt conferred on her under the said document the first defendant took the second defendant in adoption. The second defendant is the sister's son of the first defendant. The plaintiff's case is that the document dated 21 -6 -1941 was not executed by Muthukrishna Naidu in a sound disposing state of mind and that even if he did, the said document conferred only a bare power to adopt on the first defendant, and not having been registered, invalid and inadmissible in evidence. He also denied that the adoption, in fact, had taken place. The third defendant is the daughter of Muthukrishna Naidu by his first wife. Defendants 4 and 5 are Muthukrishna Naidu's paternal uncle's sons. Plaintiff is a brother of defendants 4 and 5 but taken in adoption by Muthukrishna's father's father's brother's son. The sixth defendant is Muthukrishna's mother. Defendants 1, 2, 3 and 6 denied the allegations in the plaint and contended that the document dated 21 -6 -1941 was a Will and that the adoption was true in fact and valid in law. The 5th defendant was 'ex parte;' the 4th defendant appeared in person and stated that he had no contest. On the pleadings the following issues were framed: 1. Whether the plaint has not been properly valued and proper court -fee paid? 2. Whether the suit is barred by res judicata? Whether defendants 3 and 4 have colluded with the other defendants? 3. WHETHER the suit as brought is maintainable? 4.WHETHER the Will set up by the defendants is true and valid? 5 -a. Whether the will merely amounts to a power to adopt and so invalid for want of registration? Whether the adoption is not valid. 6.WHETHER the family members consented to the adoption? 7.WHETHER , the preferential claim of the plaintiff to the village Munsifs office is correct? To what relief, if any, is the plaintiff entitled? The learned Subordinate Judge held that the document, dated 21 -6 -1941 was executed by Muthukrishna in a sound disposing state of mind and that the adoption was true. But he held that the document was not a Will but one conferring a power to adopt and, therefore, was invalid for want of registration. He further held that the consent of the next reversioners on the basis of the alleged power would not validate the adoption as the conferment of the power itself was held to be invalid. In the result he decreed the suit. Defendants 1, 2, 3 and 6 prefer the above appeal.
(3.) The factum of adoption was not disputed before us. The learned counsel for the appellants argued that the learned Subordinate Judge was wrong in holding that the aforesaid document was not a will. The learned counsel for the respondent, while supporting the construction of the Subordinate Judge put upon the said document, contended that the finding of the learned Subordinate Judge that the document was executed by Muthukrishna in a sound disposing state of mind was wrong. The other findings of the learned Subordinate Judge were accepted by the parties We shall first take the question whether the document dated 21 -6 -1941 was executed by Muthukrishna in a sound disposing state of mind. (After discussing the evidence in the case His Lordship proceeded). We therefore accept the finding of the court below that Muthukrishna executed Ex. B. 2 in a sound disposing state of mind.;

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