Greene, J. - (1.)THIS is a re-hearing of an appeal by the appellants from a. decree dated November 15, 1938, of the High Court of Madras in its appellate civil jurisdiction dismissing the appellants' appeal from a decree dated December 1, 1936, of the High Court in its original civil jurisdiction. The present appeal was dismissed by Order in Council dated June 22, 1948, which gave effect to the humble advice given in the judgment of the Board delivered on June 17, 1948. The appellants subsequently presented a petition asking that the Order in Council should be recalled and leave be granted for the appeal to be re-heard, alleging in support of the petition that their Lordships in coming to their conclusions had been misled with regard to a certain matter to which reference will presently be made. The prayer of the petition was granted and this re-hearing was ordered.
(2.)IN the suit out of which the appeal arises the respondent (plaintiff) obtained a declaration that he was entitled to the property in suit as the adopted son of a Hindu widow named Vasavambal with consequential relief. The claim had been opposed by the appellants (defendants) on the ground that they were entitled to the property either by a gift inter vivos or by a gift by will. On the original hearing of this appeal the Board was of opinion that the claim of title put forward by the appellants could not be maintained and no attempt to support it was made on the present re-hearing. But counsel for the appellants then argued that the appellants were in possession and could only be displaced if the respondent could make out a title, which they claimed he had failed to do. The Board rejected the argument that the defendants were in possession, and as their claim of title failed, their appeal necessarily failed with it. The appeal was accordingly dismissed. The reasons given in support of the petition for a re-hearing were that their Lordships were misled by certain statements appearing in the record from which it appeared to them that a receiver and not the appellants was in possession at the date of the commencement of the suit; and that on a true view of the facts the appellants were entitled to set up the plea of possession.
Their Lordships do not propose to examine farther the question who was in truth in possession at the date when the suit was instituted. Clearly if the appellants were not in possession, they could have no locus standi to appeal, their claim based on title having admittedly failed. Their Lordships will assume (as was held by the trial Judge-Record, p. 40, 1. 4), that the appellants were in possession and were therefore competent to maintain an appeal. On this footing it becomes necessary for the Board to examine again in this appeal the title by adoption which formed the basis of the respondent's claim. The Board on the original hearing stated, "no doubt it is true that it was for the respondent to make out to the satisfaction of the Court that he had a title which would warrant an order for delivery of possession to him. That he succeeded in doing. " The effect of the failure of the appellants to make good their claim based on title and the Board's decision that the appellants were not in possession made it unnecessary for the Board to examine what was the fundamental question in the case, namely, the validity of the adoption relied on by the respondent which had been established in the lower Courts. It is now necessary for the Board to consider whether the Courts in India were correct in holding that the adoption was valid.

Vasavambal was the widow of Calve Sadasiva Chettiar (hereinafter called "the deceased"), to whom the property in suit, which is situated in British India, had belonged. He and after his death his widow were admittedly domiciled in Pondicherry in French India and their personal law was governed by the law there in force. He died in the year 1891 without issue, and in the year 1906 Vasavambal made an adoption of the respondent, then aged three years. It is the respondent's case that this adoption was an adoption of himself both to the deceased and to Vasavambal herself. Having regard to what took place in relation to certain earlier litigation and a compromise made in connection therewith, the respondent no longer claims title as the adopted son of the deceased. He bases his case entirely on his alleged position as the adopted son of Vasavambal herself, who had become the owner of the property in suit in circumstances which it is now not necessary to explain. The adoption, he claims, was effective under the law applicable, viz? French law in force in Pondicherry and it had moreover been held to be effective by the French Courts.

(3.)BOTH divisions of the High Court of Madras held that the adoption was effective and that the respondent was entitled to the property in suit.
Before their Lordships it was argued that the view taken by the High Court on the appeal was erroneous on three main grounds, viz. (1) that the Court accepted the deed of adoption executed by Vasavambal as proving the fact of adoption, whereas evidence should have been given that the acts necessary for a valid adoption, in particular the physical giving and acceptance of the adoptive child, were performed; (2) that on its true construction the deed of adoption was only dealing with an adoption to the deceased and not with an adoption to Vasavambal as well; (8) that under the law of British India it was not competent to a widow to adopt to herself; (4) that the Judges of the High Court erred in treating themselves as bound to accept a declaration of the French Courts that the respondent had been validly adopted by Vasavambal.