1. The only point for determination in this appeal (except an application for an amendment of the pleadings which will be dealt with later) is whether supposing that the widowed daughter of the propositus professes to adopt a son, the nearest reversioner in the family of the propositus has a right of suit within the terms of Section 42, Act I of 1877, to set aside such adoption. The point was not raised in the Lower Courts where the parties were content to fight out the issues on the facts; so it is not a question whether the Lower Courts erred in discretion in allowing the suit, the time has long gone by to discuss discretion, but whether in law such a suit can possibly lie. The plaintiff is the reversioner, the 2nd defendant is the widowed daughter and the 3rd defendant is the person alleged to have been adopted by her though as now found the adoption was invalid.
2. It is conceded by the learned Advocate-General that if the 2nd defendant had alienated the estate, a suit would undoubtedly lie. Would a suit lie if instead of actual alienation the 2nd defendant designates a stranger as heir to the property?
3. The language of Section 42 is very wide and the appellants' argument has proceeded rather upon its interpretation by the Privy Council in Janaki Ammal v. Narayanasami Aiyar I.L.R. (1916) M 634 : 1916 31 MLJ 225 than upon a direct consideration of its actual wording. In that case the plaintiff claiming to be reversioner sued a widow for alleged acts of waste. It was found that no waste had been committed, but the plaintiff was entitled to a declaration that he was reversioner. The Judicial Committee held that at the time of the declaration it was impossible to predicate who would be the ultimate reversioner, and therefore such declaration was rather futile. But a reversionary heir with no more than a hope to the succession could demand that the estate should be kept free from danger. That part of the suit which related to the alleged waste had failed and the case must accordingly be treated as if the suit had been simply one for a declaration of the plaintiffs' individual right.
4. It is difficult to see how that case can stand on all fours with the present facts. Here the allegation of malfeasance has succeeded, and, can a reversioner who sues to set aside an adoption be said simply to sue for a declaration of his individual right? The learned Advocate-General is driven to the position that such an adoption is no present danger to the estate and it is merely an incident in the simple contest between the plaintiff and the 3rd defendant as to who is the nearer reversioner. I should hold that such an adoption is a danger to, though of course not an immediate alienation of, the estate; and if, as here, it is directly attacked by the plaintiff he is not simply suing for a declaration of his individual right.
5. That Section 42 should be read in no restricted sense is made clear by another pronouncement of the Judicial Committee in Saudagar Singh v. Pardip Narayan Singh I.L.R. (1917) C 510 : 34 MLJ 67:
It appears to their Lordships to be clear on this section that where any deed is executed the result of which may be to prejudice the interests of the reversionary heirs those heirs though still reversionary and though they may never get any title because events may preclude then; from doing so, may have a declaration as to the effect of the deed.
6. Danger is certainly not restricted to present danger or accomplished fact when it may be so wide as to include anything which may be to the prejudice of the presumptive reversionary heir.
7. And this wide sense is that in which this Court has always read Section 42. Surayya v. Annapurnamma I.L.R. (1919) M 699 establishes that a reversioner may sue to have a document purporting to give leave to adopt declared a forgery; from which it would seem that a suit would certainly lie to set aside an adoption, even though it were by the daughter and not by the widow. Both the document and the actual act could be described as something the result of which may be to prejudice the interest of the reversionary heirs. Latchmamma v. Appanna (1921) 14 LW 302 and Bobba Padmanabhudu v. Bobba Buchamma : (1918)35MLJ144 are to the same effect and as regards the general policy of the Court in such matters, I defer to the observations of Ayling, J.
8. Therefore I see no reason to hold that this suit does not lie within the terms of Section 42.
9. In the course of the trial the 2nd defendant professed to have adopted the 3rd defendant with the alleged consent of her sapindas. It was suggested that this adoption might be brought within the purview of the suit but the parties preferred to confine it to the original pleadings. That being so it is too late for the appellant now to ask me to have the matter re-opened.
10. The Appeal is dismissed with costs of contesting respondents.