A rejoinder cannot make a departure from the plea put forward in the plaint. The plaintiff cannot set up facts in the rejoinder which are inconsistent with those in the plaint.

( 1 ) THIS is an appeal under Clause 15 of the Letters Patent against the judgment of Sanjeeva Row Nayudu, J. in Appeal Suit No. 184 of 1957.

( 2 ) THE facts of the case lie in a very narrow compass and are not in dispute. O. S. No. 25 of 1956 on file of the Subordinate Judges Court, Tenali was instituted by one Kuppa Venkata Krishna Sastri claiming to be the reversioner to the estate of one Kuppa Lakshminarayna, who died in or about the year 1926, leaving behind him his widow, Lakshmi Narasamma, questioning the factum and validity of the adoption of Viswapathi, the appellant herein, made by Lakshmi Narasamma on 27-8-1953.

( 3 ) TO this suit were impleaded the adopted son as the first defendant and the adoptive mother as the second defendant.

( 4 ) PENDING the suit, the Hindu Succession Act (XXX of 1956) came into force (17-6-1956 ). By virtue of Section 14 of that Act, the property possessed by a female Hindu, whether acquired before or after the commencement of the Act, became her absolute property.

( 5 ) TAKING advantage of this provision, the defendants inter alia raised the defence that the suit was not maintainable, as a reversioner could not challenge the adoption on any ground since the adoptive mother had become a full owner of the property by operation of the Hindu Succession Act.

( 6 ) AS a sequel to this defence, the plaintiff filed a rejoinder pleading that as the widow Lakshmi Narasamma, had made a gift of her property sometime in December, 1953 and before the Hindu Succession Act came into force, the widow could not derive any benefit from the Act and as such it was competent for the plaintiff to question the adoption.

( 7 ) THE trial Court agreeing with the contention urged on behalf of the defendants, dismissed the suit, as, in its opinion, no flew plea could be raised in the rejoinder and since no attempt was made to have the plaint amended introducing the allegation that the alienation made by the widow before the passing of the Hindu Succession Act was not relevant. The Subordinate Judge did not go into the question of the factum and validity of adoption or the alienation alleged to have been made by the second defendant.

( 8 ) ON appeal filed by the aggrieved plaintiff to this Court, Sanjeeva Row Nayudu, J. , reversed the decision of the trial Court in the view that if the gift was made prior to the inauguration of the Hindu Succession Act, the Act would not be of any avail to the defendants, and, consequently, the declaration that there was no adoption either in fact or in law was sustainable. In that view, he remanded the case to the lower Court for fresh disposal. It is this decision of the learned Judge that is now under appeal at the instance of the first defendant.

( 9 ) A preliminary objection was raised by Sri Rajeswara Rao, learned counsel for the respondent, that no appeal would lie against the order in question, as it did not amount to a judgment within the sweep and range of Clause 15 of the Letters Patent. The chief ground urged by the learned counsel for the respondent is that an order of remand could not be invested with the character of judgment as it had not put an end to the litigation. We do not think that we could accede to this proposition. It is now a generally accepted concept that any adjudication, which puts an end to a suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or the order which affects the merits of the controversy between the parties, is a judgment.

( 10 ) THE test propounded by the Full Bench of the Madras High Court in Tuljaram Row v. Alagappa Chettiar, 21 Mad LJ 1 (FB) which has been adopted by several of the High Courts as the correct one, is as follows : "if its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if its effect,