Charles A. Turner, Kt., C.J.
1. The apprehension of the facts of this case will be assisted by the following genealogical tree:
-------------------------------Thayammal. = Dorasami Ayyan. Subba Ayyan| | |Venkatavaratha Kuttisami = Thangammal |claims to have | |been adopted by Krishnasami, |Thayammal. adopted by Thangammal. ||-------------------------------------| | |Venkatarama = Visvanatha Rangasami = LokambalThangammal. adopted Subramanya. adopted Krishnasami.
2. Plaintiff claims to have been adopted by Lokambal after the death of Krishnasami in accordance with permission given by her husband.
3. Subba Ayyan and Dorasami were two brothers, who divided in their lifetime. Subba left three sons--Venkatarama, who died leaving a widow (Thangammal), Visvanatha, who died leaving an adopted son (Subramanya), and Rangasami, who died leaving an adopted son (Krishnasami) and a widow (Lokambal). According to the plaintiff's case, Krishnasami was in delicate health at the time of his father's death, and Lokambal received permission from her husband to make a second adoption in case the boy died. Krishnasami died shortly after his father, and Lokambal, in the exercise of the power given her, adopted the plaintiff. The plaintiff brought a suit to set aside various dispositions of Rangasami's estate made by Lokambal prior to his adoption. That suit was eventually decided by the Privy Council in 1879 (Indian Law Reports, 1 Madras Series, 91). In the course of the suit it was at first disputed and subsequently admitted that the widow Lokambal had received authority from her husband to make an adoption (p. 96), and the Privy Council, recognizing the validity of an adoption made under such circumstances, sent issues to this Court for trial that it might determine the relief to which the plaintiff was entitled. Dorasami died leaving a son, Kuttisami, and a widow, Thayammal. Kuttisami died leaving a widow, Thangammal. Thayammal and Thangammal did not live in amity, and eventually Thangammal consented; to divide with Thayammal the estate which she had inherited from her husband. Thangammal professed to adopt a lad named Krishnasami and executed a muktiarnama in favour of one Sundara Ramayyan authorizing him to administer property for the benefit of her adopted son till he should attain his majority. She and the lad died in 1877. Thayammal also professed to have made an adoption, having taken the second defendant Venkatavartha as an adopted son after he had attained the age of 27 years and his upanayanam ceremony had been performed, and Sundara transferred the property he had received from Thangammal to Thayammal and second defendant as the nearest heirs of Krishnasami or Kuttisami, whereupon they executed in his favour a release, exhibit A.
4. The plaintiff brought this suit for a declaration of the invalidity of the adoption alleged to have been made by the first defendant, Thayanimal, of the second defendant. The plaintiff denied that the adoption had been made, and asserted that, if made, it was invalid because it was made when Thangammal and the adopted son were alive and when the second defendant had gone through the upanayanam ceremony and without due authority. The defendants questioned the fact and validity of the plaintiff's adoption, contended that the suit could not be maintained in the absence of Subramaniyam, the adopted son of Visvanatha and that there was no cause of action to sustain a declaratory decree.
5. The plaintiff contended that the decision of the Privy Council in the suit above referred was conclusive as to his status as adopted son. The Judge overruled this plea; he omitted to determine the plea as to non-joinder; he considered it unnecessary to frame an issue as to the validity of the adoption of a brahman after upanayanam, and he decided the other issues in favour of the plaintiff.
6. In this Court it is pleaded that a suit will not lie for a declaratory decree, that the suit is bad for non-joinder of necessary parties, that the adoption of the second defendant is valid, that proof should be admitted of the alleged custom of adoption after upanayanam, and that the decision on the issues of fact is against the weight of evidence.
7. The adoption set up by the defendants and the documents A and B are incompatible with the claims of the plaintiff as reversioner, and it is an established rule in this country that an alleged adoption may be challenged by a reversioner without proof of any injury actually sustained. The non-joinder of a reversioner of equal grade would not be a bar to a suit for a declaratory decree and would not be a defect affecting the decision on the merits of which an Appellate Court could take cognizance. On the question of fact as to the adoption of the plaintiff, we agree with the Judge that there is sufficient evidence that Rangasami, apprehending the death of the boy he had adopted, had authorized his wife to make a second adoption and that, in pursuance of that authority, she had adopted the plaintiff. The judgment in the case which went to the Privy Council is not evidence of the fact of the adoption conclusive on the present defendants who were not parties to the proceedings, but it lends support to the evidence of the plaintiff's witnesses, for it shows the plaintiff's adoption has been long asserted and that it has been admitted by persons, members of the family, who were acquainted with the circumstances and interested to dispute the adoption.
8. The decision is, however, an authority that an adoption under such circumstances is valid, and on the issues as to the plaintiff's title we arrive at the same conclusion as the Judge.
9. The decision of the Privy Council in Pudma Coomari Debi v. The Court of Wards L.R. 8 IndAp 229 is an authority, that an adoption cannot be made by a mother after the estate has vested in the widow of her son, the power of the mother, if any, given by her husband, having then to come to an end and being incapable of execution. In accordance with that decision we must hold that the adoption of the second defendant, if made and if otherwise valid, cannot be sustained.
10. The appeal fails and is dismissed with costs.