SINNACHAMI ALIAS KUMARETTU SERVAIGAR, MINOR THROUGH HIS GUARDIAN, SIVAGNANAM SERVAIGAR Vs. NARRAMSAWMY CHETTIAR

JUDGEMENT

(1.) This is an appeal by the 2nd defendant against a decree on a mortgage, dated the 11th October 1892, executed by the father of defendants Nos. 1 and 2 on his own behalf and on behalf of the defendants in favour of the plaintiffs predecessor in title. For the purposes of the appeal the material dates are these. In January 1897 Kumarettu, No. 14 in the pedigree, died. In October 1892, the mortgage in question was executed by Sivathaiya, No. 18 in the pedigree. In 1896, No. 18 died and his estate devolved upon defendants Nos. 1 and 2. In December 1904, the present suit was instituted. In January 1905 the widows of No. 14 adopted the 1st defendant. It seems clear (in fact the appellant did not seriously contend otherwise) that the exercise of the power to adopt was the counter move on the part of the widows and the 2nd defendant to the suit on the mortgage. For the purpose of the appeal, I assume that a valid power to adopt was given and that this power was duly exercised by the widows of Kumarettu (No. 14 in the pedigree).

(2.) The questions for consideration are: (1) In whom was the estate in the property comprised in the mortgage vested at the date of the adoption ? (2) What was the nature of this estate ? (3) Did (sic) Exsercise of the power to adopt divest the estate? (4) If the, dose the adopted son take the property subject to the mortgage which had been executed by the holder of the estate before the power to adopt was exercised ?

(3.) As to (1), the appellant has contended that No. 18 took no estate at all (though he was entitled to possession during the lifetime of the widows by an arrangement with them), and that at the date of the adoption a widow s estate was vested in the widows of No. 14.