Divesting of estate by adopted son.

This appeal was referred to a Bench by Rajagopalan, J., as it raises an interesting but difficult question in the Hindu Law of Adoption. The following pedigree will make the appreciation of facts and relationship of parties easy:

Venkatabalu and Nagalingam became divided in 1917. Exhibit A-1 dated 1st July, 1917, is the registration copy of the partition deed between them. Venkatabalu died on 27th November, 1923, leaving no male issue but a widow, Venkatalakshmi, who was then enciente. A daughter was born, but she died on 1st July, 1924, the mother having predeceased her in June, 1924. After the death of the widow and the daughter, the inheritance of Venkatabalu devolved on Narasammal, his mother who held the estate till her death in 1942. Under the Hindu Law of Inheritance Amendment Act No. 2 of 1929 the sisters, the third defendant and the plaintiff, succeeded to the estate, as Nagalingam the divided brother of Venkatabalu died even in 1930. Nagalingam’s widow, Gowri Ammal, adopted the second defendant in 1945. The estate of Venkatabalu continued in the possession of Gowri Ammal as Narasammal was living at the time of her death as a member of Nagalingam’s family. The plaintiff, one of the sisters of Venkatabalu, instituted the present suit out of which this appeal arises, in forma pauperis, to recover possession of the estate of Venkatabalu for herself and the third defendant from defendants 1 and 2, the first defendant being Gowri Ammal. The first defendant died in 1948 after the institution of the present suit. The second defendant’s adoption by Gowri Ammal was established in O.S. No. 4 of 1946, Sub-Court, Mathurai and the second defendant resisted the present suit, claiming that he was the preferential heir to the estate of Venkatabalu by virtue of his adoption in 1945, that his rights dated back to 1942 when the succession to Venkatabalu’s estate opened after the death of Narasammal, and that by the retrospective operation of his adoption he was entitled to displace the title of the plaintiff and the third defendant, notwithstanding the fact that the estate had vested in them immediately after the death of Narasammal. This contention was not accepted by the learned Subordinate Judge, and the suit was decreed in favour of the plaintiff and the third defendant, subject to the condition of a payment of Rs. 500 to the second defendant in accordance with the terms of the partition deed of 1917. The second defendant who was unsuccessful in the lower Court has preferred this appeal.

Mr. Rajagopala Ayyangar, learned Advocate for the appellant, wanted to raise a new point which was not raised in the Court below, namely, that there was an oral surrender by Narasammal to Nagalingam who continued in possession of the estate till his death, in 1930, and that thereafter the possession remained with his widow, Gowri Ammal. On a perusal of the pleadings and issues in the suit, we are unable to find any semblance of a plea of this nature either in paragraph 2 of the written statement of the second defendant or elsewhere. The question of oral surrender is one essentially of fact, and cannot be permitted to be raised for the first time in appeal, when there was no pleading, no issue and no trial on that question in the lower Court. We therefore declined to entertain the plea for the first time in this appeal.

The main question that falls for determination is whether the second defendant is entitled by virtue of his adoption to divest the title to the estate of Venkatabalu from the heirs-at-law in whom it had vested in 1942 and retain possession of the property. Had the adoption been made before the death of Narasammal, the second defendant would have taken the estate of Venkatabalu in preference to the sisters who come in later in the order of succession. But could he do so by dating back his rights to the date of the death of his adoptive father by the adoption made in 1945? The point raised, however, presents some difficulty in vi