Judgement

WANCHOO, J. : This is an appeal by special leave against the judgment of the Madras High Court. The facts are not now in dispute and may be briefly narrated. A suit was brought by Nagappa Chettiar, respondent No. 1(hereinafter referred to as the respondent) against Villiammai Achi appellant and Nachiammai Achi now dead and represented by her legal representative. The respondent claimed two-thirds share of the properties left by his father, Pallaniappa and prayed for a decree for separate possession of that share after partition. The feels on which this claim was based are not now in dispute and are these. The respondent is the adopted Son of Pallaniappa having been adopted in 1941. The appellant is the widow of Pallaniappa and Machiammai Achi was Pallaniappa s mother. Pallaniappa s father also named Nagappa had considerable properties. This Nagappa made a will on June 10,1934 by which after making certain dispositions in favour of certain persons including his own wife he gave the residue of his property absolutely to Pallaniappa and appointed him as the executor of the will. In one place the will stated that all the property except a small part was the exclusive and self-acquired property of the testator while at the end the testator said that he had made the will with the full consent of his son Pallaniappa. After Nagappa s death in July 1934 Pallaniappa obtained probate of the will and after providing for the legacies to others as indicated therein came into possession of the residue of the property. In 1941 the respondent was adopted by Pallaniappa.

2. In the trial Court there was a dispute between the parties whether Pallaniappa and his father were members of a joint Hindu family and whether properties left by Pallaniappa s father were the joint family properties of both. But it has been found that all the properties left by Pallaniappa s father were joint family properties of Pallaniappa and his father which Pallaniappa could acquire by survivorship on his father s death. This finding was upheld by the High Court and is not now in dispute. We have to proceed on the basis that even though Pallaniappa s father said in the will that the properties, except a small part, were his self-acquired properties, in fact all the properties mentioned in the will of Pallaniappa s father were joint family properties of Pallaniappa and his father.

3. The cash of the appellant was that even though the properties left by Pallaniappa s father were joint family properties which Pallaniappa could acquire by survivorship, the conduct of Pallaniappa in obtaining probate of the will and carrying out its terms amounted to election and thereafter Pallaniappa became absolute owner of the residue of the properties bequeathed to him by the will. The consequence of this was that when Pallaniappa adopted the respondent in 1941 long after he had become the absolute owner of the properties, the respondent acquired no interest in the properties left by his grand-father by virtue of the adoption Pallaniappa died on September 16, 1956 after the Hindu Succession Act (No. 30 of 1956) came into force. As there was no joint family property of Pallaniappa and the respondent at the time of Pallaniappa s death, the respondent could not claim half the property on the ground that it was joint family property of himself and Pallaniappa, as Pallaniappa s election to take under the will of his father would bind the respondent also. Reliance in this connection was placed on S. .180 of the Indian Succession Act (No. 39 of 1925) also.

4. The reply on behalf of the respondent to this contention was two-fold. In the first place, it was urged that there was no question of election even by Pallaniappa in this case and S. 180 of the Indian Succession Act would not apply. It was further urged that even assuming that there could be election by Pallaniappa the respondent would not be bound by that election as the property left by his grand-father was joint Family property;