The meaning and scope of the expression "representative in interest" in the context of S. 33 of the Evidence Act.

BHIMASANKARAM, J. : -

The 1st defendant is the appellant. The appeal is directed against the decree granted by the trial Court in favour of the 1st respondent, the Sole plaintiff in O.S. No. 65 of 1949 on his file. The respondents 2 to 5 who were defendants 2 to 5 in the lower Court are tenants in possession of the property in dispute between the plaintiff and the 1st defendant.

2. The plaintiff is the widow of one Pathuri Bala Krishna Sastry who died on 1-3-1947. She sought in the suit possession of certain agricultural lands which had belonged to her husband, from the 1st defendant who claims to be the adopted son of the said Balakrishna Sastry. In his Written Statement, the 1st defendant averred that he was taken in adoption on 20-8-1943 by the husband of the plaintiff and that the adoption was immediately followed by the execution of a deed of adoption which was duly registered by the adoptive father himself on 27-8-1943.

It was further stated that the plaintiffs objection to the registration of the document on the ground that her husband was of unsound mind was over-ruled by the Registrar. Accordingly, the 1st defendant claimed that he was solely entitled to the lands. It is to be remembered that the Hindu Womens Rights to Property Act was held not to apply to agricultural lands. The State Legislation conferring rights upon widows in respect of agricultural lands similar to those they had in regard to other property has not yet been passed.

3. The learned Subordinate Judge held against the 1st defendants case of adoption. He took the view that Balakrishna Sastry was a person of weak intellect and unsteady mind and that advantage was therefore, taken of this circumstance by the father of the 1st defendant who is D.W. 1 in the case to make it appear that Balakrishna Sastry who is his first cousin on the paternal side, had adopted the 1st defendent. He therefore, decreed the suit. In order to appreciate the contentions of the parties in the appeal, the following facts must be remembered.

4. Balakrishna Sastry had a daughter by the plaintiff by name Suseela by whom he had a grandson, Bhavanarayana. Bhavanarayana claiming to have been adopted by his maternal grandfather brought a suit O.S. No. 25/44 on the file of the Sub-Court, Bapatla against the present 1st defendant for a declaration that the latter (the 1st defendant) was not the adopted son of Balakrishna Sastry, who was also impleaded as the 2nd defendant in that suit. The trial Court held in that suit that Bhavanarayana was not validly adopted by Balakrishna Sastry. On appeal to the High Court of Madras, however, the learned Judges agreed with the finding that plaintiff was not validly adopted and did not consider it necessary to record any finding relating to the adoption of the present appellant. Still, they made the following observations in their judgment :

"The evidence regarding the same (the adoption of the 1st defendant) is as unsatisfactory as the evidence regarding the adoption of the plaintiff, but in the view we are taking, viz., that the suit will not lie if the plaintiffs adoption is not made out, we do not think it necessary to go into the question whether the 1st defendant has been validly adopted or not.

The present plaintiff gave evidence in support of the adoption of her grandson while Balakrishna Sastry himself appeared as a witness on the side of the 1st defendant. A number of witnesses were examined in that suit in support of the 1st defendants case. Three of those witnesses have been examined again in the present suit. They are D.w.s 1, 5 and 6; D.W. 1 as already stated, being the 1st defendants father. D.W.s 2 and 10 are witnesses who have been examined for the first time in the suit. An attempt was made, however, by the 1st defendant to put in evidence in the present suit the depositions of three witnesses recorded in the previous suit. The lower Court refused to receive them the appellant has, therefore, preferred before us C.M.P. No. 1899