Judgement

This Appeal (No. 5 of 1944), by special leave in forma pauperis, was a re-hearing of an appeal by the appellants from a decree of the High Court in its appellate civil jurisdiction (November 15, 1938) dismissing the appellants appeal from a decree of that High Court in its original civil jurisdiction (December 1, 1936).

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 reheard, 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.

In the suit out of which the appeal arose 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 dis missed. 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.

Vasavambal was the widow of Calve Sadasiva Chettiar (hereinafter called "the deceased"), to whom the property in suit, which was 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 was the respondents case that that 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 connexion therewith, the respondent no longer claimed title as the adopted son of the deceased. He based 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 was now not necessary to explain. The adoption, he claimed, was effective under the law applicable, namely, French law in force in Pondicherry, and it had moreover been held to be effective by the French courts.

Both the trial court (Wadsworth J.) and the High Court of Madras in appeal (Leach C.J. and Madhavan Nair J.) held that the adoption was effective and that the respondent was entitled to the property in suit.

Law Rep. 77 Ind. App. 33 ( 1949- 1950)

C . S. Nataraja Pillai V. C . S. Subbaraya Chettiar 185

1949. Oct. 17, 18. Rewcastle K. C. and Ralph Parikh for the appellants. No adoption in fact took place for the respondent was at the time of his alleged adoption in Pondicherry and not in Madras, where his adoption is alleged to have taken place. The father of Calve Sadasiva Chetti