1. The facts out of which this Second Appeal arises may be stated as follows:
There were four divided brothers in a Hindu family. The plaintiffs are two of these. Another was Akshayalinga, who was-apparently adopted by one Subba Mudaliar in 1873; but in the course of the suit it was found that the adoption was invalid because both the father and mother of Akshayalinga were dead at the time of his apparent adoption. The fourth brother was Viawalinga, who died in 1892. The dispute is in regard to his property. The plaintiffs claimed it as his reversionary heirs, and their suit was to recover it from the defendant, who is the son of Akshayalinga, and who is said to have trespassed upon it in 1901. The defendant originally claimed the property as the self-acquisition of Akshayalinga, purchased benami in the name of Viswalinga, but both the Courts below found against that plea. In the alternative defendant resisted the plaintiff's-suit on the ground that, as the adoption of Akshayalinga was invalid, he (defendant) had not lost his rights in his natural family, and was therefore entitled to one-third of the property, and plaintiff could not recover even the remaining two-thirds in this suit as it is framed as a suit in ejectment against a trespasser, and cannot be converted into a suit for partition. The District Judge accepted this alternative defence and dismissed the plaintiff's suit.
2. The plaintiffs appeal. They contend that the adoption of Akshayalinga having been made so long ago as 1873, and having been treated as a valid adoption by Akshayalinga himself (Exhibit J in 1878) and by Subba Mudaliar (see his will, Exhibit II in 1898) and generally by the family, the defendant cannot now deny the validity of the adoption. It is not, however, shown how any estoppel arises against the defendant's plea. The four brothers were divided before Akshayalinga's apparent adoption, and it is not shown that in consequence of the adoption, the plaintiffs' position has been in any way changed to their disadvantage, so as to render it inequitable that the defendant should be restored to his place in his natural family. This appears to be the test which should be applied in accordance with the principle underlying the decisions in Gopalayyan v. Raghufatiayyan (1873) 7 M.H.C.R. 250 and Parvatibayamma v. Ramakrishna Rau I.L.R. (1895) Mad. 145. It is hardly necessary to quote authority for the proposition that an invalid adoption does not per se destroy the adoptee's rights in his natural family. Bhavani Sanhara Pandit v. Ambabay Ammal (1863) 1 M.H.C.R. 363, approved in Lakshmappa v. Ramava (1875) 12 Bom. H.C.R. 364.
3. But it is contended for the plaintiffs that the apparent adoption having taken place so long ago as 1873 and having been acquiesced in by all concerned for so long, it ought to be now presumed by the Court that the adoption was made in pursuance of an authority given by some person competent to give away the son in adoption. No doubt that presumption was raised in Anandrav Shivaji et al v. Ganesh E. Bokil (1863) 7 B.H.C.R. App.33, but no authority for the decision is quoted, and that case was essentially different from the present case, for there the adoptee desired to maintain the adoption, whereas in the present case the adoptee's son disclaims it, the adoptee being dead. No doubt if there was evidence that Akshayalinga's father gave him to Subba Mudali and the latter accepted him with a view to adoption, the adoption though made years afterwards, and after the death of the father, would be valid because there was the essential giving and taking of the child with a view to adoption. Venkata v. Subbadra (1884) 7 Mad. 548. But there is no such evidence in. the present case, nor are there any other circumstances by which the suggested presumption could be supported. There is abundant-authority that no one but the parents of a child can give him away in adoption and therefore that an orphan (as Akshayalinga was at the time of adoption) cannot be given away in adoption either by himself or by any one else. Subbaluvammal v. Ammakutti Ammal (1864) 2 M.H.C.R. 129, Balvanirav Bhaskar v. Bayabhai et al (1869) 6 Bom. H.C.R. 83 and Bashetiappa v. Shivlingappa (1873) 10 B.H.C.R. 268.
4. We therefore hold that the adoption of Akshayalinga was invalid, and that the defendant has not lost his rights in his natural family.
5. We think that the District Judge is right in holding that the present suit, which is one in ejectment, cannot be properly converted into a suit for partition so as to give plaintiffs a decree for two-thirds of the plaint property. There may well be other property which would have to be brought into hotchpot if the plaintiffs should sue for partition.
6. Their right to obtain partition, in a suit properly framed for the purpose is apparently not yet barred, and they must be left to that remedy.
7. We dismiss the Second Appeal with costs.