Narayanasawmy, A Minor By His … vs Ramasawmy Iyer And 2 Ors. on 4 March, 1890

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Madras High Court
Narayanasawmy, A Minor By His … vs Ramasawmy Iyer And 2 Ors. on 4 March, 1890
Equivalent citations: (1896) 6 MLJ 40
Author: Shephard


Shephard, J.

1. It was contended on behalf of the plaintiff (appellant), that, apart from the theory that the plaintiff’s adoption was ‘ a conditional one, the plaintiff was entitled to the property of his adoptive father, notwithstanding the latter’s will executed after the adoption, and that in fact there was no evidence what the adoption was conditional. And further it was argued that the defendants, having denied the adoption and not raised in the written statement the contention now urged on appeal they were not competent to raise it now. In support of this argument, we were referred to the case of Mahomed Buksh Khan v. Hosseini Bibi (1888) L.R. 15 I.A. 81 where the Judicial Committee expressed the opinion that the plaintiff seeking recover property conveyed by a deed of gift purporting to be executed Riert self should not have been permitted at the same time to allege that the deed was a forgery and that the execution of it was obtained by undue influence. Mr. Bhashyam Iyengar contended that similarly, in the present case, the defendants ought not to be allowed to plead first that there was no adoption and then that there was an adoption, but that it and the will formed one transaction, so that the adopted son could not question the will. ‘It is doubtless true that the two pleas, the one denying the adoption, the other admitting it and qualifying its effects, are inconsistent. I am nevertheless of opinion that the defendants are not precluded from raising the latter defence. It is to be observed that the defendants are complete strangers to the transaction, being persons who have taken by gift from the widow of the plaintiff’s adoptive father. Both the defences which they have raised have reference to matters not necessarily or properly within their own knowledge. There is a material distinction, therefore, between the present case and the one cited where both charges related to matters necessarily within the plaintiff’s personal knowledge. Moreover, the circumstance, that in ‘ the case before the Judicial Committee it was the plaintiff who sought to raise ‘inconsistent issues is material, for while it is open [41] to a plaintiff under certain circumstances to reserve a ground of claim, a defendant failing to insist on a ground of defence in one action cannot afterwards raise it in another action at the suit of the same party. While I am of opinion that the Subordinate Judge was right in allowing the defendants to raise the contention, on the strength of which judgment has gone in their favour, I do not think he has sufficiently considered the facts with reference to the principle applied in the ease cited by him and in the more recent case of Lakshmi vs. Subramanya 1.. It is not sufficient that the plaintiff’s father may have been aware of the dispositions made by the will nor is the intention of the testator by any means a decisive circumstance. It has to be seen whether the plaintiff’s father, while consenting to the, adoption, at the same time consented to the dispositions of the adoptive father’s property as forming the condition on which the adoption should take place. I would direct the Subordinate Judge to try an issue similar to that directed in the case referred to, viz.:–Whether, when the plaintiff was given up in adoption his natural father was aware of dispositions made by the late Muttusawmy Iyer, and whether, but for his consent to those dispositions Muttusawmy would not have adopted the plaintiff?

Best J.

2. The present case is distinguishable from that reported in Mahommcd Buksh Khan v. Hosseini Bibi (1888) L.R. 15 I.A. 81 as pointed out by my learned colleague. I agree in thinking that the issue suggested should be tried by the Subordinate Judge.

3. The Sub-Judge found on both the issues in the affirmative. A memorandum of ‘objections was filed on which their Lordships delivered the following

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