KASIVISWANATHAN CHETTIAR Vs. SOMASUNDARAM CHETTIAR
HIGH COURT OF BOMBAY
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Madhavan Nair, J. -
(1.)THIS is an appeal from a decree of the High Court of Judicature at Madras dated December 10, 1942, which affirmed with a slight modification the decree of the Subordinate Judge of Sivaganga dated November 21, 1940, in O. S. II of 1939.
(2.)THE appeal arises out of a suit instituted by the plaintiff (the first respondent) for partition and recovery of a half share of the properties in the possession of the first defendant, the appellant before the Board, now dead, who is represented by Lakshmi Achi. THE first defendant was the contesting defendant and will be referred to hereafter as "the defendant".
The plaintiff claimed the properties as the duly adopted son of the elder brother of the defendant. At the time of the adoption the adoptive parents of the plaintiff, that is, the elder brother of the defendant and his wife, were dead, and the adoption was brought about by the adoptive grandfather. It appears that it was done with the consent of the defendant also. Under the ordinary Hindu law which governs the parties such an adoption would be invalid, as the only person who can make an adoption is the adoptive father, if he is alive, and after his death, his widow. But it is claimed that according to the special custom prevailing amongst the Nattukottai Chettti community to which the parties belong, an adoption can be validly made to a person after his death, and even after the death of his widow, by the father or other pangalis (agnates) of the adoptive father. It was pleaded in para. 3 of the plaint that ". . . after the death of the first defendant's elder brother, the first defendant's father had the plaintiff adopted on the. . . 20th April, 1923, in due form according to the caste custom prevalent amongst the Nattukottai Chettis for a long time. The first defendant accepted the adoption, had the adoption (ceremony) performed along with his father and he has himself written the said adoption deed. . . . " The defendant denied that there was a special custom and stated that even if the custom alleged should be proved it is not valid under the Hindu law as the adoption was made after the death of both the adoptive father and mother and should not be given effect to. Some other defects comparatively of a minor nature were also mentioned by him, but these have not been pressed before their Lordships.
The question for the Board to decide is whether the custom set up by the plaintiff has been made out by the evidence.
(3.)AFTER full consideration of the evidence the Subordinate Judge found in favour of the custom, and his finding has been upheld by the learned Judges of the High Court.
It was argued before the Board that the custom set up by the plaintiff has not been sufficiently defined and set out in his pleadings; but it should be noticed that the question arose in the course of a suit for partition and not for declaration and establishment of a special custom as such, and the plaintiff was expected to state succinctly no more than what was necessary to justify his claim for a share of the properties, and this he has done in para. 3 of the plaint by saying that after the death of the elder brother of the defendant he was adopted to him as his son by the adoptive grandfather, according to the custom prevailing-amongst the Nattukottai Chettis. It is clear from paras. 3 and 4 of the written statement that the defendant well understood in reference to the facts of the case why the adoption should be held invalid according to the strict rules of the Hindu law. Issues 3 and 4 raised in the case relate to the existence and binding nature of the custom, and a perusal of the evidence shows that both the parties adduced whatever evidence they had with reference to those issues. In the circumstances, it appears to their Lordships that there is no substance in the argument that the custom set up has not been sufficiently defined in the pleadings and that the defendant has been prejudiced thereby.
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