Decided on December 14,1953

Shanmugavadivelu, Minor Appellant
Kuppuswamy Pillai And Ors. Respondents


P.V.Rajamannar, J. - (1.) THOUGH several points were raised in the second appeal, points which had been dealt with by the Courts below, in the view we have decided to take on one of the points as regards the maintainability of the suit, it is not necessary for us to deal with all those points. The suit was. brought by the Appellant in the Court of the District Munsif of Tirutturaipundi for the recovery of properties described in the schedule from three Defendants. These properties admittedly belbnged originally to one Swaminatha Pillai. He died sometime in February 1916 leaving behind him his last will, dated 11th February 1916. He had no male issue. He left behind him a minor daughter, Meenakshisundaram, by the first wife, and his second wife, Bagyathachi. In and by the will, he bequeathed the suit properties to Meenakshi sundaram and provided that if she died without leaving any heirs, the properties should go to a mutt called Kannupillai alias Kannappasami Matam. The Defendants in the suit represent the interests of this mutt. Meenakshisundaram died in 1923 unmarried. The Plaintiff was adopted by Bagyathachi to her husband on 25th March 1946. The Plaintiff's case was that when Meenakshisundaram died in 1923, the properties devolved upon Bagyathachi, who had only a woman's estate, and when the Plaintiff was adopted, he became entitled to the properties. The Defendants denied the factum and the validity of the Plaintiff's adoption. They claimed that on the death of Meenakshisundaram, the defeasance clause in the will came into operation and the properties vested in the matam. They also set up a prescriptive title in the matam by reason of the possession of the properties from the time when Meenakshisundaram died. The learned District Munsif found that the adoption was true, but that the adoption was not valid because there was an implied prohibition of adoption which could be gathered from the terms of the will. He also held that the matam had obtained title to the properties both on the terms of the will and also by adverse possession. He therefore dismissed the suit. On appeal, the learned District Judge confirmed the decision of the District Munsif on all the points. Hence this second appeal by the Plaintiff.
(2.) WE shall first deal with the truth and validity of the Plaintiff's adoption. So far as the factum goes, it is concluded by the finding of fact of the Courts below that the adoption of the Plaintiff did take place. The only question is whether it was invalid because of an implied prohibition to be gathered from the terms of the will of Swaminatha. We have carefully gone through the entire will, but we are unable to find any intention on the part of the testator to prohibit an adoption. It may be that the testator did not contemplate an adoption when he made the will. But that is not tantamount to a prohibition of adoption. Having regard to the underlying doctrine of adoption and its purpose, namely, that it is intended for the continuation of the line of the deceased and for conferring spiritual benefit on him, the Courts should not easily draw the inference of a prohibition against adoption, unless there are facts and circumstances which compel the Court to come to that conclusion. For it must be remembered that, in effect, the Court should hold that the deceased prohibited his widow from continuing his line and from conferring spiritual benefit, on him. It may be that the terms of a particular will may leave the impression on the Court that the testator for some reason or other entirely disliked the idea of an adoption. In such a case, the Court might draw an inference of prohibition against an adoption. Considerable reliance was placed by the Courts below on a decision of this Court in Panchapakesa Iyer v. Gopalan, (1938) 48 L.W. 887. In the first place, it is very unsafe to decide a question like this by relying on a precedent which dealt with a will in different terms. Apart from this, it appears from the judgment of the learned Judge in that case that he was greatly influenced by the injunction of the testator contained in the will that his funeral ceremonies and obsequies should be performed only by his daughter's son. We do not find any such injunction in the will in the present case. In our opinion, the decision in Panchapakesa Iyer v. Gopalan, (1938) 48 L.W. 887 does not apply to the facts of this case. As there is no other evidence of prohibition on the part of the deceased, the adoption of the Plaintiff must be held to be valid. Even so, we are of opinion that the suit of the Plaintiff must fail. Meenakshisundaram took under the will an absolute estate. When she died, Bagyathachi was entitled to succeed as her heir. Bagyathachi cannot be deemed to have inherited to her husband. When in 1946 she adopted the Plaintiff to her husband, the Plaintiff did not become entitled to the properties which Bagyathachi had obtained, because she obtained them only as the heir of her step -daughter Meenakshisundaram and not as the heir of the deceased Swaminatha. It was contended on behalf of the Plaintiff that the Plaintiff's adoption must relate back to the date of the death of Swaminatha, and therefore the Plaintiff must be deemed to be the nearer heir than Bagyathachi to Meenakshisundara and the Plaintiff could divest Bagyathachi of the estate which had vested in her in 1923 on Meenakshisundara's death, by which date the Plaintiff had not been adopted. We have no hesitation in holding that the Plaintiff's adoption cannot have this effect in law. The question how far an adopted son's rights date back to the death of the adoptive father in the case of collateral succession has been fully discussed after an exhaustive consideration of the entire case law in Raju v. Lakshmi Ammal, (1954) I.M.L.J. 654 by Satyanarayana Rao and Rajagopalan JJ. The learned Judges held that in the case of collateral succession, the adopted son would not be entitled to divest the title of persons who took the estate at a time when his adoption had not been made. The principle of provisional vesting was confined only to lineal succession and there was no reason or justification to extend that principle. We entirely agree with this decision, and following it, we hold that the Plaintiff, by reason of his adoption, did not divest Bagyathachi of the estate which vested in her on the death of Meenakshisundara. As Bagyathachi is still alive, the Plaintiff has no right or title to the suit properties. The suit must, therefore, fail. The second appeal is, therefore, dismissed on this ground.
(3.) IN this view, we do not express any opinion on the other points raised in the case and we should not be understood to have accepted the correctness of the decision of the Courts below on the points not dealt with in this judgment. The Appellant will pay the costs of this appeal to the Respondents.;

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