A party cannot raise a new legal theory on appeal that is inconsistent with the case presented in lower courts, particularly when the new theory requires factual determinations, such as caste or personal status, that were not tried or adjudicated below.

Judgement

APPEAL from a decree of the High Court (April 16, 1888), affirming a decree of the District Judge of Ganjam (Aug. 16, 1886).

The facts are stated in their Lordships judgment.

The Appellant sued as widow of one brother to set aside an adoption by the widow of the other brother ; the suit being based on the assumption of her right to succeed on the death of the adopting widow as reversionary heiress to that widows husband. The first Court dismissed the suit, finding that the Appellants husband was not legitimate, and therefore not a sapinda of the adopting widows husband.

The High Court found that both brothers were illegitimate, and that even if they were legitimate the Appellant would not be reversionary heiress as claimed. The property in suit originally belonged to one Padmanubha Deo, the common ancestor of all parties, the right of succession to whose estate was adjudicated upon in Sri Gajapathi Radhika v. Sri Gajapathi Nilamoni (13 Moores Ind. Ap. Ca. 497.).

Mayne, for the Appellant, said that he accepted all the findings of the Courts below except those relating to the adoption. On those undisputed findings the High Court ought to have held that the Appellant was a sapinda, and the only reversionary heir of Krishna Chandra. They are both illegitimate, and it is quite clear that they were always treated as being on perfect equality with each other. The basis of certain family compromises, which had been put in evidence, was that they were undivided brothers. As illegitimate sons they could not inherit from their father, but they could inherit from one another, according to the view of the law which the Appellant desired to propound. That is a question of pure law which it is competent to raise in appeal upon the facts as found, although it was not presented for the consideration and judgment of the Courts below.

Doyne, for the Respondent, was not heard.

The judgment of their Lordships was delivered by

LORD HOBHOUSE—

The only question on which their Lordships have heard any argument is, whether the Appellant, who is the Plaintiff in the suit, shall be permitted to open a case which she did not bring before either the Court of First Instance or the Court of Appeal below. The material facts are as follows —

Padmanabha, talookdar of Tekkali, had two sons by different women. The Plaintiff is the widow of one of them named Gopinadha. The first Defendant Radhamani is the widow of Krishna, the other son, and the second Defendant is a boy whom Radhamani has purported to adopt. The Plaintiff alleges that the adoption is invalid, and that, as the widow of Gopinadha, she is the heir of Krishna, subject to his widows interest. She has brought this suit to set aside the adoption. It is plain, therefore, that she cannot obtain a decree unless, setting aside the adoption, she would stand next to Radhamani in the line of succession to Krishna.

For the defence it is alleged that Krishna and Gopinadha were not sapindas to one another. Krishna, as the Defendant has pleaded, was the son of a Kshatriya woman married to Padmanabha, who was himself a Kshatriya, whereas Gopinadha was born to Padmanabha by a woman of some inferior caste.

On these pleadings issues were settled, the first being whether Gopinadha was a sapinda of Krishna. The District Judge found that Gopinadha was of illegitimate birth, and therefore was not a sapinda, and on that ground he dismissed the suit. He did not come to any finding on the other issues in the suit; but he intimated an opinion adverse to the Plaintiff on the question whether she could claim to succeed to the collaterals of her husband.

The Plaintiff appealed to the High Court, insisting on the legitimacy of her husband; but the High Court agreed with the District Judge on this point. They also expressed an opinion that, by the law prevalent in Madras, a widow is not in the line of succession to her husbands male collaterals. The appeal, therefore, was dismissed.

Connected with this suit, both in the