Right of the heir in the estate after being adopted.

The defendant is the appellant. The plaintiffs laid the suit for recovery of the suit properties or in the alternative for joint possession along with the defendant. The properties belonged originally to one Swarnathammal who created a trust on 30th July, 1925; under Exhibit A-l by which she appointed Srinivasa Pillai and his heirs as trustees. Srinivasa Pillai died in July, 1930. He had three sons, Sabarathnam, who died on 16th November, 1949, Manickavachagam and the present defendant. The plaintiffs are the sons of Sabarathnam. The defendant was adopted to his aunt’s husband, Vasudeva, on 20th February, 1950, under Exhibit B-2. The other brother of the defendant, i.e., Manickavachagam, became adopted to his paternal grand-uncle even in 1936 during the lifetime of Srinivasa Pillai. Defendant filed a suit for partition in O.S. No. 13 of 1942 of the properties and in it included the suit properties. Exhibit B-19 is the plaint in that suit and Exhibit B-21 is the preliminary decree. Against the preliminary decree in O.S. No. 13 of 1942, there was an appeal in A.S. No. 56 of 1943 and Exhibit A-30 is the appellate judgment. In the appeal, the suit properties were excluded by consent of parties with liberty to the present defendant to file a fresh suit. Exhibit A-31 is the judgment of the High Court in A.S. No. 512 of 1944 in the same suit against the final decree and this was disposed of on 27th March, 1946.

The defendant put forward a plea of family arrangement in pursuance of which, he alleged, he was made the trustee in respect of the suit properties, as his brother Sabarathnam continued to be the trustee of the other properties, and for this purpose, he depended upon Exhibit A-2, the will dated 12th November, 1949 executed by Sabarathnam in which it is mentioned that the present defendant was to conduct the charities from out of the suit properties. Sabarathnam died on 16th November, 1949. It was thereafter that the defendant was adopted on 20th February, 1950, by his aunt’s husband, Vasudeva. The plaintiffs filed the suit claiming that as the defendant had been adopted into another family, he ceased to be entitled to be a trustee in respect of the suit properties. The suit was dismissed by the trial Court. But the appellate Court allowed the appeal and decreed the plaintiff’s suit.

As far as the other family properties are concerned, the defendant had became a divided member even before he was adopted and therefore there is no doubt that in respect of these properties, he would not become divested as a result of his having been adopted by the other family. That is the effect of the decision of this Court in Sri Raja Venkata Narasimha Appa Rao v. Sri Raja Rangayya Appa Rao and others1. Though the Bombay High Court has taken a different view in Dattatraya Sakharam v. Govind Sambaji2, that need not defer us because as far as this Court is concerned, the decision of the Bench of this Court Raja Venkata Narasimha Appa Rao v. Sri Raja Rangayya Appa Rao and offers1 is binding. Even the Bombay High Court has subsequently taken a view in Mahabaleswara Narayan v. Subramania Shivaram3, a view which is in consonance with the view taken by this Court in Sri Raja Venkata Narasimha Appa Rao v. Sri Raja Rangayya Appa Rao and others1. The Calcutta High Court has always taken the same view though the Calcutta decisions are based on the Dayabagha system of law (See the decisions in Beharilal Laha v. Kailas Chander Laha4). In fact the Calcutta High Court in the decision reported in Shyamcharan Chattopadhyaya v. Sricharan Chattopadhyaya5, has referred to the decision of the Bombay High Court in Dattatraya Sakharam v. Govind Sambaji2, and has dealt with the contention raised before it on the decisions of the Privy Council in T. Raghuraj Chandra v. Rani Subhadra Kunwar6 and Dattatraya Sakharam Devi v. Govind Sambaji Kulkarni2. It has been explained there that the decision. of the Privy Council above referred to cannot be said to have approv