Surayya and Another vs Annapurnamma

Sir John Wallis, Kt., C.J.—The Subordinate Judge has proceeded upon the authority of the decision in Sreepadam Vekataramanna v. Sreepadam Ramalakshmamma I.L.R.(1912) Mad. 592 but this case has been dissented from in Bobba Padmanabhudu v. Bobba Buchamma (1918) 35 M.L.J. 141, which I prefer to follow. I am unable to agree with the observation in the former case that Section 42 of the Specific Relief Act does not authorize such a suit as this. The effect of the widow setting up a will giving her power to adopt is in my opinion to challenge the absolute right of the Plaintiff to succeed on her death if he survives her and to convert him in the language of English Law from an heir apparent into an heir presumptive. The rule that Courts in India will not entertain a suit by the Plaintiff for the declaration that he is a nearer reversioner than the Defendant is not in my opinion based on the view that such a suit does not come within the terms of Section 42 but on the settled practice of the Court in the exercise of its discretion under the section and has been so treated by Lord PARKER of Waddington in Saudagar Singh v. Pardip Narayan Singh I.L.R.(1918) Cal. 510. Where a will giving authority to adopt is being set up by a widow it is expedient that the question should be settled at once and not left open until the best evidence has disappeared, and a suit such as this may therefore be regarded as in the nature of a suit quia timet. I would allow the appeal, reverse the decree, and remand the suit for disposal according to law.

Costs will abide the result.

Ayling, J.

I agree in the order proposed and adhere to my opinion expressed in Bobba Padmanabhudu v. Bobba Buchamma (1918) 35 M.L.J. 141.