1. This case unfortunately has been mishandled from start to finish and it comes up here after a sham fight about an issue upon which both parties concentrated themselves and which did not really ultimately go to the root of the dispute between the parties. I am quite aware of the danger of allowing people to start fresh cases at the last moment, but I cannot bear litigants to lose their rights by reason of misconceptions of their legal advisers in throwing the whole incidents of the case on to an immaterial issue.
2. The facts here are very simple. The plaintiff was adopted invalidly somewhat about 1910 by the deceased defendant 1, who subsequently had an aurasa son born to him who is defendant 2 in these proceedings. The issue that ought to have been tried and has not been tried is whether the circumstances of the supposed adoption create an estoppel as against defendant 1, the natural father of defendant 2 and the adoptive father of the plaintiff. The facts appear to be these: that the adoption was made with all the proper ceremonies, but that unfortunately it was made after the death of the natural father of the plaintiff, his place being taken by an elder brother of the plaintiff, and of course by Hindu Law such an adoption is invalid. But circumstances may arise in which the likelihood of hardships to be caused to the plaintiff in upsetting an adoption on which all the parties acted for a number of years in this case up to the point that the plaintiff was actually married by his adoptive father may be so great that it would be inequitable and unjust not to hold that an estoppel is created against the person adopting for having changed his position. In this case it may be that any attempt to rejoin his natural family and assert his rights there might be met by pleas of limitation and we know not what. This is a matter which must go back to the learned Judge and he must find whether the circumstances in this case are such as to raise an estoppel against the deceased defendant 1 in his capacity of adoptive father of the plaintiff. And I desire to say that the learned Judge in trying that matter should direct his attention to the facts in the light of the observations contained in the case of Rani Dharam Kunvar v. Bulwant Singh  34 All. 398 and which may be taken to have resolved certain doubts expressed in Vythilinga Mudali v. Munigan  37 Mad. 529 It appears from the judgment of the Privy Council that it is not cast upon the person who sets up the estoppel to prove conclusively that he was in fact damnified by the father resiling from the story of the adoption, but it is enough if he proves to the satisfaction of the Court that the likeli hood of his being prejudiced by the alteration of position was so great that the Court will presume that the plaintiff must have been damnified. The effect of that and the other case is set out in para. 160, 9th edition, of Mayne's Hindu Law. It further falls to be observed that estoppel being simply a principle of the law of evidence, it creates no substantive rights of an absolute character, but can only operate to close the mouths of certain people who have acted in a certain way from setting up what may be true facts of the case, and it is clear here that the estoppel will only operate against the adoptive father who was responsible for the change of circumstances in the plaintiff's life and surroundings and in no way against the defendant, the aurasa son. The result is that the plaintiff, if he can prove the estoppel in the manner that I have directed, that is to say, in the manner laid down by the Privy Council, if he can prove that, he will be entitled to his portion created by estoppel against the father of the father's share in the property as on a division in partition between the father and the aurasa son, because at the time this suit was brought, the plaintiff, if he had been properly advised, would have been entitled in his character, of the' person having a claim on the father's estate by estoppel to enforce a partition in which he would get such share as against the aurasa son as would have been the father's and would pass to him by virtue of the estoppel created by the recognition of the adoption by the father.
3. In the light of these observations, I direct the District Court to return a finding as to whether the circumstances as found by the learned Judge on the hearing of such fresh evidence as may be adduced by either side together with the evidence now on record are sufficient to create an estoppel as against the father, and, if so, then to proceed to declare the share of the property to which the plaintiff is entitled out of the father's share by virtue of the estoppel. Six weeks for finding and seven days for objections. Costs reserved.
4. (After the return of the finding, the Court delivered the following judgment.)
5. I cannot say that in this case the learned Judge has misdirected himself nor can I say that there was no evidence on which he could arrive at the finding at which he has. There is nothing in the circumstances of this adoption to warrant the view that it was so prejudicial to the position of the plaintiff that the defendant could not be heard to challenge it. That is a pure question of fact and as long as there was material before the learned Judge his finding is conclusive for me. That being so the second appeal must be dismissed with costs.