Decided on October 21,1953

Raju Alias Srinivasan Chettiar Appellant
Lakshmi Ammal And Anr. Respondents


- (1.) THIS appeal was referred to a Bench by Rajagopalan J. as it raises an interesting but difficult Question in the Hindu law of adoption. The following pedigree will make the appreciation of facts and relationship of parties easy:
(2.) VENKATABALU and Nagalingam became divided In 1917, Exhibit A -1 dated 1 -7 -1917 is the registration copy of the partition deed between them. Venkatabalu died on 27 -11 -1023 leaving no male issue but a widow, venkatalakshmi, who was then 'enceinte'. A daughter was born, but she died on 1 -7 -1924, the mother having predeceased her in June 1924. After the death of the widow and the daughter, the inheritance of Venkatabalu devolve on Narasammal, his mother who held the estate till her death in 1942. Under the Hindu Law of Inheritance Amendment Act No. 2 of 1929 the sisters, the third defendant and the plaintiff, succeeded to the estate, as Nagalingam the divided brother of Venkatabalu died even in 1930. Nagalingam's widow, Gowri Ammal, adopted the second defendant in 1945. The estate of Venkatabalu continued in the possession of Gowri Ammal as Narasammal was living at the time of her death as a member of Nagalingani's family. The plaintiff, one of the sisters of Venkatabalu Instituted the present suit out of which this appeal arises, in 'forma pauperis', to recover possession of the estate of Venkatabalu for herself and the third defendant from defendants 1 and 2, the first defendants being Gowri Animal. The first defendant died in 1948 after the institution of the present suit. The second defendant's adoption by Gowri Animal was established in O. S. No. 4 of 1946, Sub Court, Mathurai, and the second defendant resisted the present suit, claiming that he was the preferential heir to the estate of Venkatabalu by virtue of his adoption in 1945, that his rights dated back to 1942 when the succession to Nenkatabalu's estate opened after the death of Narasammal , and that by the retrospective operation of his adoption he was entitled to displace the title of the plaintiff and the third defendant, notwithstanding the fact that the estate had vested in them immediately after the death of Narasammal . This contention was not accepted by the learned Subordinate Judge, and the suit was decreed, in favour of the plaintiff and tho third defendant, subject to the condition of a payment of Rs. 500 to the second defendant in accordance with the terms of the partition deed of 1917. The second defendant who was unsuccessful in the lower court has preferred this appeal.
(3.) MR . Rajagopala Aiyangar, learned advocate for the appellant, wanted to raise a new point which was not raised in the court below, namely, that there was an oral surrender by Narasammal to Nagalingam who continued in possession of the estate till his death in 1930, and that thereafter the possession remained with his widow, Gowri Ammal. On a perusal of the pleadings and issues in the suit, we are unable to find any semblance of a plea of this nature either in para.2 of the written statement of the second defendant or elsewhere. The question of oral surrender is one essentially of fact, and cannot be permitted to be raided for the first time in appeal, when there was no pleading, no issue and no trial on that question in the lower court. We therefore de -dined to entertain the plea for the first time in this appeal. The main question that falls for determination is whether tho second defendant is entitled by virtue of his adoption to divest the title to the estate of Venkatabalu from the heirs -at -law in whom it had vested in 1912 and retain possession, of the property. Had the adoption been made before the death of Narasammal, the second defendant would have taken the estate of Venkatabalu in preference to the sisters who come in later in the order of succession. But could he do so by dating back his rights to the date of death of his adoptive father by the adoption made in 1945? The point raised, however, presents some difficulty in view of the decisions of the Judicial Committee and of the High Courts in India in which seemingly conflicting views were expressed.;

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